Monday, May 30, 2016

Kerala HC quashes HPCL's stipulation denying distributorship on groud of blindness [Judgement Included]

Dear Colleagues,

In a writ petition W.P.(C).No.29046/2013 titled Baby P. Versus M/s Hindustan Petroleum Corporation Limited, the Honorable Kerala High Court vide its judgement dated 30 May 2016 has quashed the stipulation that ‘totally blind person is ineligible’ for LPG distributorship as violative of Article 14 of Constitution of India.

The petitioner, P. Baby of Thiruvananthapuram, a totally blind person, applied for LPG Distributorship at Kodiyathoor in Kollam under S.C.(C.C) category. But his application was rejected by the respondent on two grounds, one of them being that a ‘totally blind person’ was ineligible to apply for LPG distributorship & the other being lack of own space for operating the agency. The petitioner had submitted that he was willing to take on rent adequate space to run the agency.

Quashing a part of the norms formulated by the petroleum company that allowed denying distributorship to persons who are completely blind, the court held that it amounts to violation of the constitutional right to equality before law and denies equal opportunity to blind persons.

In the judgment, the court said if a disability doesn't prevent a person from performing a job, such a disability cannot be the reason for denying the job. Denying a job citing disability can only be allowed if the disability prevents the person from performing the functions associated with the job. Denial of jobs citing disability becomes necessary only in special circumstances such as driving, the court said. 

The petroleum company had contended that if a blind person such as the petitioner is granted LPG distributorship, he won't be able to inspect complaints related to cylinders and that inspection of cylinders to rectify complaints is a job that requires maintenance of the highest safety standards. However, the court said those who formed the norms ousting blind persons completely from grant of distributorships are unaware of the fact that they are able to perform such tasks that require a high degree of specificity. 

Delivering the judgment, Justice Muhammed Mustaque, opined that the above stipulation of classification  was unreasonable, since it  had no nexus with the purpose sought to be achieved. The bench opined:- “The classification in the case in hand appears to have been made based on the broad generalization that the Distributorship can be run only by persons of certain abilities. Such a classification ex facie appears to be unreasonable and unsustainable. Though, the object of such prescription appears to be that in order to carry out day-to-day affairs, constant vision of the Distributors is required. The vision of eye sight, in fact, has nothing to do with the functions being discharged by the Distributors. A blind person is also endowed with a vision. Though, he cannot physically see an activity, with his insight vision he can run a Distributorship. Therefore, the object of classification must have a nexus with the purpose and intent to be achieved.

The modern technological advantages and improvement of social conditions of the blind cannot be ignored while considering the functional duties attached with Distributorship.” The court further elaborated its stand, by employing the Doctrine of strict scrutiny developed by American courts, wherein the general presumption available for a statute,  on its validity cannot be invoked for an executive action, but the onus is cast on the proponent of the classification to establish its constitutionality.

The Court thereupon proceeded, to determine the constitutionality of the stipulation and whether the same   causes reverse discrimination. Answering the query in affirmative the court ruled:-“The blind persons cannot be treated as a separate class except for affirmative action or for the purpose of functional duty attached with an office or post. They are equally competent and have all competitive and cognitive skills similar to the able bodied persons except lacking visionary functions. Therefore, they can be treated as a separate class for the purpose of affirmative actions or for any other purpose relating to the functional competence of the duties attached to the post/office.

As has been noted above, the doctrine of scrutiny casts a duty on the policy makers to justify discrimination and not otherwise. In this case, absolutely no materials have been placed before this Court to justify classification.” Terming the stipulation as violative of Article 14, the court observed:- “The equal opportunities for a blind person cannot be negated unless the functions that have to be discharged by him intrinsically, cannot be separated from his disability, such as persons like drivers or such other functionaries who may require vision for carrying out the function. A blind person would be also able to discharge the same functions as that of an able bodied person without any impediment as far as LPG Distributorship is concerned. Therefore, this Court is of the view that the stipulation in the Brochure that a “totally blind person is ineligible” is violative of Art.14 of the Constitution. Accordingly, the clause as above is set aside.”

Media stories  

Times of India - Disability not a bar for jobs they can perform: HC

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