Maharashtra State Handicapped Employees'/Officers' Association Vs. the State of Maharashtra and Others - Court Judgment

Oral Order: (Chief Justice)

1. Rule. Learned counsel for respondents waive service. In the facts and circumstances of the case, petition is taken up for final hearing.

2 By this petition under Article 226 of the Constitution of India, the petitioner has challenged the decision of the respondent-authority revoking the special traveling allowance to the government employees and semi-government employees suffering from blindness. The petitioner has particularly challenged order dated 17 June 2011 issued by the Chief Executive Officer. Zilla Parishad, Nashik. The CEO of Zilla Parishad, Nashik has issued the above order on the basis of the Government Resolution dated 4 June 2001, which provides for special traveling allowance to the disabled government employee for the purpose of travel between the place of duty and the place of his residence belonging to following categories:-

(a) Orthopedically handicapped with 40% or 505 permanent partial disability of both the upper and lower extremity deformities certified by Head of the Orthopedic Department.

(b) Completely blind or having vision of both the eyes less than 3/60 or having field vision less than 10 degree certified by Head of the Ophthalmology Department. However, employee who is blind by one eye is not entitled for the Special T.A.

(c) Spinal deformity-generally known as hunch back disability more than 40% permanent partial disability certified by the Orthopedic Officer (Class-I) of Government Hospital.

The Special T.A. is not admissible to the employees other than the employees falling under above categories.

3. Mr.Karnik, learned counsel for the petitioner submits that the definition of “blindness” in the above Government Resolution is not in conformity with the definition of “blindness” in Section 2(b) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Act” for brevity), which reads as under:-

2(b) “blindness' refers to a condition where a person suffers from any of the following conditions, namely:-

(i) total absence of sight; or

(ii) visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses; or

(iii) limitation of the field of vision subtending an angle of 20 degree or worse;

4. Learned AGP for the State Government submits that other government employees who do not fall within above three categories of the Government Resolution also get traveling allowance and that special traveling allowance is being given only to above three categories, so that the disabled person following in the above categories gets assistance of companion while traveling.

5. Having heard learned counsel for parties, we find considerable substance in the submission of learned counsel for the petitioner. When the Central Act made by the Parliament defines “blindness” to include those who have visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with correcting lenses, the State Government cannot narrow down the definition by providing that a person who is having vision of both the eyes less than 3/60 or having field vision less than 10 degree will be considered eligible for special traveling allowance.

6. By laying down more stringent standard of vision of both the eyes less than 3/60 or having field vision less than 10 degree, the State Government has taken away benefits of special traveling allowance to those employees, who fall within the broader definition of “blindness” under the Act of Parliament. This is not permissible. The State Government may provide for more liberal definition of “blindness”, but it can certainly not provide for narrower definition of “blindness” than the one given in the Act of Parliament. We are, therefore, of the view that the State Government is required to be directed to follow the definition of “blindness” as provided in the Act of Parliament, while giving benefits of special traveling allowance.

7. In view of the above discussion, the impugned order of CEO, Zilla Parishad, Nashik has to be treated as illegal and nonest and the respondents are directed to follow the definition of “blindness” in Section 2(b) of the Act.

8. Learned counsel for the petitioner further invites our attention to the fact that by the impugned order the CEO of Nashik Zilla Parishad has ordered to make recovery of special traveling allowances from the employees who do not fall within the Government Resolution dated 4 June 2001. Our attention is also invited to the judgment dated 12 September 2012 of this Court at Aurangabad Bench, wherein similar issue was raised about recovery of special traveling allowance, which is also known as `disability conveyance allowance'. Relying upon the decision of the Supreme Court in Syed Abdul Qadir and others vs. State of Bihar and others, (2009) 3 SCC 475, this Court has held that when the employee is not instrumental in receiving financial benefits by making fraudulent representation and the employer extends benefits, which may not be strictly justified on the basis of the Government Resolution, the amount already paid to the employees on account of alleged mistake of the employer cannot be recovered. In the instant case also, it is not alleged by respondents that employees were instrumental in receiving financial benefits of special traveling allowance by making fraudulent representation. Employees were extended benefits by the Zilla Parishad on the basis that employees are disabled persons and fall within the ambit of the Act.

9. In view of above and the aforesaid decision of the Supreme Court, we are inclined to allow the petition in so far as Zilla Parishad has sought to make recovery of the special traveling allowances from employees who were treated as disabled persons by the Zilla Parishad, at the relevant time.

10. Accordingly this writ petition is allowed in the following terms:-

(i) For the purpose of determining eligibility of special traveling allowance to the blind employee, the respondents shall follow the definition of “blindness” as contained in Section 2(b) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as may be amended from time to time.

(ii) As regards payment of special traveling allowance made the Zilla Parishad to its employees, who were treated as “blind” earlier, no recovery shall be made and if any recovery is made earlier, such amounts shall be refunded to employees within eight weeks from today.

(iii) Rule is made absolute accordingly. No order as to costs.