W.A. No. 2081 of 2016 in WP(C) 29046/2013. Case: Hindustran Petroleum Corporation Ltd. Vs Baby P. and Ors.. High Court of Kerala (India)
| Case Number | W.A. No. 2081 of 2016 in WP(C) 29046/2013 |
| Counsel | For Appellant: M. Gopikrishnan Nambiar, P. Benny Thomas, P. Gopinath and K. John Mathai, Advs. and For Respondents: T.M. Sreedharan, Sr. Adv., V.P. Narayanan and Divya Ravindran, Advs. |
| Judges | Mohan M. Shantanagoudar, C.J. and Sathish Ninan, J. |
| Issue | Constitution of India - Articles 14, 16, 16(1), 21; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 2(b), 2(i), 29, 33, 36, 47, 58(c), 62, 68, 72 |
| Judgement Date | January 10, 2017 |
| Court | High Court of Kerala (India) |
Judgment:
Mohan M. Shantanagoudar, C.J.
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"Kindness is the language, which the deaf can hear and the blind can see", said the 18th century American Writer, Mark Twain. The exclusion of totally blind persons from participating in the tender for distributorship of Liquefied Petroleum Gas (LPG) is under challenge in the writ proceeding. The learned single Judge as per judgment dated 30.05.2016 held the exclusion to be violative of Article 14 of the Constitution, which is under challenge in this writ appeal.
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The brief facts of the case are as under:
The appellant invited applications for distributionship of LPG at several locations in Kerala, including the location "Kottiyam in Kollam district", which was reserved for Combined Category (CC) applicants belonging to Scheduled Caste (SC). Among other conditions, the selection criteria specifies that "totally blind persons" will not be eligible to apply under the "combined category" and that the minimum dimensions of the godown plot offered by the applicant should be 31 x 36 metres.
The first respondent, the writ petitioner, is a totally blind person. He applied for LPG distributorship under SC (CC) category at Kottiyam, Kollam district. His application has been rejected on two grounds, viz., a) a "totally blind person" is not eligible, and b) the dimension of the godown plot does not satisfy the minimum dimension as prescribed in the notification. Hence, he approached this Court by filing W.P(C) No. 29046 of 2013, not only challenging the stipulation specifying the eligibility but also the rejection of his application based on insufficiency of the dimension of the plot.
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It is not in dispute that the location at Kottiyam in Kollam district was reserved for combined category belonging to Scheduled Caste i.e., SC (CC) category. It is also not in dispute that the first respondent is from the said category and is the only person, who applied from that category. It is also not in dispute that the guidelines for selection of regular LPG distributorship specify that totally blind persons will not be eligible.
The question is "as to whether the specification prescribed under Ext. P3 guidelines for selection of regular LPG distributorship prohibiting the totally blind persons to apply, is a valid one". Clause 6.2.2(b)(I) of Ext. P3 deals with Physically Handicapped (PH) Category, the relevant portion of which reads thus:
"Deaf, Dumb and Blind persons with minimum degree of 40% disability will also be eligible to apply for LPG Distributorship under this category. However, totally blind persons will not be eligible."
(emphasis supplied)
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The aforementioned clause amply makes clear that the deaf, dumb and blind persons with a minimum of 40% degree of disability are eligible to apply for LPG distributorship under PH category. However, totally blind persons are not eligible (We are, in this case concerned with totally blind persons). Whether such exclusion of totally blind persons will fall within the mischief of The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Articles 14, 16 and 21 of the Constitution of India is the issue for consideration.
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In this context, it is relevant to note the objects and reasons for enacting "The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995" (hereinafter referred to as, the 'Act' for short). The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the full participation and equality of people with disabilities in the Asian and the Pacific region. India is a signatory to the said proclamation. The proclamation is as under:
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Proclaims the Asian and Pacific Decade of Disabled Persons, 1993-2002, with a view to giving fresh impetus to the implementation of the World Programme of Action concerning Disabled Persons in the ESCAP region beyond 1992 and strengthening regional cooperation to resolve issues affecting the achievement of the goals of the World Programme of Action, especially those concerning the full participation and equality of persons with disabilities;
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Requests the Economic and Social Council and the General Assembly to endorse the present resolution and to encourage, at the global level, support for its implementation;
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Urges all member and associate member Governments to review the situation of disabled persons in their countries and areas, with a view to developing measures that enhance the equality and full participation of disabled persons, including the following;
(a) Formulation and implementation of national policies and programmes to promote the participation of persons with disabilities in economic and social development;
(b) Establishment and strengthening of national coordinating committees on disability matters, with emphasis on, inter lia, the adequate and effective representation of disabled persons and their organizations, and their roles therein;
(c) Provision of assistance, in collaboration with international development agencies and nongovernmental organizations, in enhancing community-based support services for disabled persons and the extension of services to their families;
(d) Promotion of special efforts to foster positive attitudes towards children and adults with disabilities, and the undertaking of measures to improve their access to rehabilitation, education, employment, cultural and sports activities and the physical environment;
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Urges all concerned specialized agencies and bodies of the United Nations system to undertake an examination of their ongoing programmes and projects in the ESCAP region, with a view to integrating disability concerns into their work programmes systematically and supporting national implementation of the present resolution;
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Calls upon non-governmental organizations in the field of social development to utilize their experience and expertise in strengthening the capabilities and activities of organizations of disabled persons;
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Urges organizations of disabled persons to cooperate with government agencies in strengthening means by which citizens with disabilities may realize their full potential, and to strengthen linkages among disabled persons in developed and developing countries to enhance their self-help capacity;
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Pursuant to the above proclamation, the Act came to be enacted in India to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, visa-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.
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The Act states that within the limits of the economic capacity and development, the appropriate Governments and the local authorities will have to undertake various measures for prevention and early detection of disabilities, creation of barrier-free environment, provision for rehabilitation services etc. The Act also provides for education, employment and vocational training, reservation in identified...
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