The National Assoication of the Deaf Through Its Treasurer & Anr v. UOI & Anr

judgment, readily distinguish the pigmentary colours, red and green?

Yes/No.

(c) In your opinion, is he able to distinguish with his eye sight at a distance of 25 metres in good day light a motor car number plate?

Yes/No.

(d) In your opinion, does the applicant suffer from a degree of deafness which would prevent his hearing the ordinary sound signals?

Yes/No.

(e) In your opinion, does the applicant suffer from night blindness?

Yes/No.

(f) Has the applicant any defect or deformity or loss of member which would interfere with the efficient performance of his duties as a driver? Is so give your reasons in details.

Yes/No.

(g) Optional

(a) Blood group of the applicant (if the applicant so desires that the info may be noted in his driving licence).

(b) RH Factor of the applicant (if the applicant so desires that the info may be noted in his driving licence).

Declaration made by the applicant in Form-I as to his physical fitness is attached.

Certificate of Medical Fitness

I Certify that:

(i) I have personally examined the applicant Shri/Smt./ Kum ______________.

(ii) That while examining the applicant, I have directed special attention to his/her distant vision.

(iii) While examining the applicant, I have directed special attention to his/her hearing ability, the condition of the arms, legs, hands and joint of both extremities of the applicants; and

(iv) I have personally examined the applicant for reaction time, side vision and glare recovery, (applicable in case of persons applying for a licence to drive goods carriage carrying goods of dangerous or hazardous nature to human life).

And, therefore, I certify that, to the best of my judgment, he/she is medically fit/not fit to hold a driving licence.

The applicant is not medically fit to hold a licence for the following reasons:

Signature:

¶1Name and designation of Medical Officer/ Practitioner

(Seal)

¶2Registration Number of Medical Officer.

Signature or thumb impression of the candidate Date…………‖

¶21On a perusal of the aforesaid statutory provisions and the Rules which we have reproduced hereinabove, it is manifest that there are two categories of licence, namely, learner's licence and the driving licence. For obtaining learner's licence, in respect of non transport vehicles, the filing of medical certificate is not necessary. As has been stipulated in Rule 11, the applicant is required to present himself before the licensing authority on such date, place and time for a test and satisfy the said authority that he possesses adequate knowledge and understanding of the matters as prescribed in Rule 11 of the 1989 Rules. Similarly, for obtaining the driving licence, the applicant should be eligible and must satisfy the competent authority

conducting the test by meeting the criteria stipulated in Rules 14 and 15 of the 1989 Rules. This being the statutory provision, we do not perceive that an application is to be rejected by the competent authority at the threshold without carrying out the requisite tests depending upon the application, namely, learner's licence or driving licence.

¶22At this juncture, we may refer to the affidavit of the respondents which contains the minutes of the meeting of the Ministry of Road Transport and Highways held on 9.12.2009 which has been brought on record as Annexure R-1. It is worth noting that the special meeting was held in pursuance of the order passed by this Court. In the said meeting, the opinion of the health experts has been reiterated. The reasons for the same is reproduced below: ―4. The issue was discussed in detail by the members and the Committee reached the following conclusion:

(i) Indian roads have far more hazards than in those countries which have been referred to in the petition. This is evident from the fact that there is highest number of road facilities worldwide occurring due to road crash in India. Indian roads have dense vehicle population. The pattern of driving is also mix. Besides, there is also lack of traffic discipline. While using the roads, it is predominantly required to give audio signal to the vehicles around to caution other drivers or for giving way. Such situations are not seen in developed countries.

(ii) Use of rear view mirror may not be a full proof solution because vehicles often are not fitted with such mirrors on both sides. Even if they are fitted on the vehicle, the users often fold them back.

(iii) In case of hilly roads, it is mandatory to blow horn on the sharp as well as blind corners. The driver would be in a dangerous position if he is unable to hear the audio signal.

(iv) While driving the vehicle, inside noise, such as running of engine, tyre noise etc. is an indicator for the health and safety of the vehicle. The deaf person will be in an unsafe situation because he will not be able to gather these signals.

(v) Luxury vehicles are often fitted with audio systems. Loud music inside the vehicle may pose unsafe situation but purely by the choice of the driver and hence, cannot be made a ground for allowing deaf persons to drive.

(vi) The UN Convention on Rights of Persons with Disabilities does not qualify the extent of deafness.

(vii) In developed countries, there is a system for imparting training to deaf people in order to obtain driving licence. There is no such system prevalent in the country.

(viii) International Driving Permit is valid for one year only and thereafter even a foreign national is required to obtain the driving licence afresh as per the existing rules and regulations in the country. Thus, analogy given in this regard between the foreign national and Indian national is not correct.

(ix) Every year a large number of accidents took place in the country involving motor vehicles on roads. Many of them prove to be fatal. During the year 2007 alone, there were around 4.8 lakhs road accidents which killed around 1.15 lakh people and injured more than 5 lakhs person in India. While the Government has been making all efforts to bring down the rate of accidents substantially, it cannot afford to take the risk of endangering the lives of deaf drivers as well as other road users.

¶5Keeping in view of the above, the Committee did not recommend that deaf persons be allowed to drive motor vehicles in the country. The Committee, however, reiterated its earlier recommendations to endorse the views of health experts which was as follows:

―Hearing levels upto 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level upto 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle. Persons suffering with severe and persistent vertigo should not be issued a driving licence.‖

¶23The aforesaid minutes have been treated to be a policy decision. On a scrutiny of the said decision, it is luminescent that persons who have hearing level upto 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level upto 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle. The submission of Gonsalves, learned senior counsel for the petitioners, is that the persons who are totally deaf are also eligible to get the driving licence under the Act and the denial of the same defeats the very purpose of the 1995 Act. To appreciate the said submission, it is appropriate to refer to the scheme of the 1995 Act. The said statute was enacted to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific regions. As is seen, it was a result of the meeting to launch the Asian and Pacific Decade of Disabled Persons 1993-2002 convened by the Economic and Social

Commission for Asia and Pacific held at Beijing on 1st to 5th December, 1992 which adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Regions and further India is a signatory to the said proclamation. Section 2(i) of the 1995 Act defines ―disability‖ as: ―2(i) ―disability‖ means –

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness;

Clause (l) defines ―hearing impairment‖ as follows:

(l) "hearing impairment" means loss of sixty decibels or more in the better year in the conversational range of frequencies;

¶24Chapter IV of the Act mandates how the Government and local authorities shall provide to children with disability free education; make schemes and programmes for non-formal education; research for designing and developing new assistive devices, teaching aids, etc. to set up teachers training institutions to develop trained manpower for schools for children with disabilities; to prepare a comprehensive education scheme providing for transport facilities, supply of books and to provide amanuensis to blind students and students with low vision.

¶25Chapter VI deals with ‗employment'. Section 32 deals with identification of posts which can be reserved for persons with disability. The said provision is reproduced below: ―32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Government shall –

(a) identify posts, in the establishments, which can be reserved for the persons with disability;

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

¶26Section 33 which deals with reservation of posts reads as follows: ―33.Reservation of posts.-Every appropriate Governments shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy,

in the posts identified for each disability:

Provided, that the appropriate Government may, having regard to the type of work carried on in any department or establishment by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.‖

On a reading of these provisions, it is clear as day that certain posts are to be identified where reservation can be made. Reservation in employment and education would stand on a different footing as compared to getting driving licence.

¶27Mr. Gonsalves has commended us to the decision in Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah & Ors., (2010) 3 SCC 603 wherein the Apex Court was dealing with Section 22 of the Jammu & Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998. In that context, their Lordships have held thus: ―47. It has to be kept in mind that this case is not one of the normal cases relating to a person's claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity. This is a case which has to be handled with sensitivity and not with bureaucratic apathy, as appears to have been done as far as the appellant is concerned.

¶48As has been indicated hereinbefore, the object of the 1998 Act is to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to persons with disabilities. Section 2(d)(v) recognizes "locomotor disability" which is the result of cerebral palsy. Locomotor disability has also been separately defined in Section 2(j) to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy.

¶49A "person with disability" has been defined in Section 2(p) to mean a person suffering from not less than 40% of any disability as certified by a Medical Authority. Keeping the same in mind, Chapter V of the 1998 Act provides for employment of persons with

disabilities. Section 21 deals with identification of posts which can be reserved for persons with disabilities. X

X

X

X

¶53It is only to be expected that the movement of a person suffering from cerebral palsy would be jerky on account of locomotor disability and that his speech would be somewhat impaired, but despite the same, the Legislature thought it fit to provide for reservation of 1% of the vacancies for such persons. So long as the same did not impede the person from discharging his duties efficiently and without causing prejudice to the children being taught, there could, therefore, be no reason for a rigid approach to be taken not to continue with the appellant's services as Rehbar-e-Taleem, particularly, when his students had themselves stated that they had got used to his manner of talking and did not have any difficulty in understanding the subject being taught by him.

¶54Coupled with the above is the fact that the results achieved by him in the different classes were extremely good; his appearance and demeanour in school had been highly appreciated by the Committee which had been constituted pursuant to the orders of the High Court to assess the appellant's ability in conducting his classes. X

X

X

X

¶58The High Court appeared to be insensitive to the fact that as a victim of cerebral palsy, the appellant suffered from a slight speech disability which must have worsened on account of nervousness when asked to appear before the Court to answer questions. As has been submitted by Mr. Gonsalves, the intimidating atmosphere in which the appellant found himself must have triggered a reaction which made it difficult for him to respond to the questions put to him. X

X

X

X

¶60We are convinced that the approach of the local authorities, as well as the High Court, was not in consonance with the objects of the 1998 Act and scheme of the State Government to fill up a certain percentage of

vacancies with disabled candidates, and was too pedantic and rigid. The order of the High Court cannot, therefore, be sustained and has to be set aside.

As is evident from the factual matrix, the matter related to reservation of vacancy for the category of persons with disabilities like blindness or low vision, hearing impairment, locomotor disability or cerebral palsy for the posts identified for each disability, the reservation for a post and grant of driving licence to deaf person are two different facets and the said decision is distinguishable.

¶28There can be no doubt that the special law shall prevail or have overriding effect over the general law. When the courts are confronted with a situation where two statutes are conflicting, the courts' approach should be to find out which of the two apparently conflicting provisions is more general and which is more specific. Thus, in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. In this context, we may refer to some citations in the field. In LIC v. D.J. Bahadur, (1981) 1 SCC 315, the Apex Court has held thus: ―The legal maxim generalia specialibus non derogant is ordinarily attracted where there is a conflict between a special and a general statute and an argument of implied

repeal is raised. Craise states the law correctly : (Craise on Statute Law, 1963 Edn. pp.376: ―The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is special and the subsequent enactment is general, the rule of law being, as stated by Lord Selbourne in Seward v. Vera Cruz

(1884) 10 AC 59, 68, ‗that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. There is a well-known rule which has application to this case, which is that a subsequent general Act does not affect a prior special Act by implication. That this is the law cannot be doubted, and the cases on the subject will be found collected in the third edition of Maxwell is generalia specialibus non derogant - i.e. general provisions will not abrogate special provisions.' When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.‖

¶29In Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127, 153, the Apex Court has held thus: ―The question what is the general law and what is the special law and which law in case of conflict would prevail would have arisen and that would have necessitated the application of the principle "Generalia

specialibus non derogant". The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied:

(i) The two are inconsistent with each other.

(ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail.‖

¶30In Ashoka Marketing Ltd. v. Punjab National Bank, (1990) 4 SCC 406, the Apex court has observed thus: ―One principle of statutory interpretation which is applied is contained in the latin maxim : leges posteriores priores contraries abrogant, (later laws abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim : generalia specialibus non derogant, (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one. In the case of inconsistency between the provisions of two enactments, both, of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein.‖

¶31The aforesaid principle can only be attracted if a particular statue is a special statute and there is inconsistency between the general provision and a

special one. As has been indicated earlier the 1988 Act and the 1995 Act deal with different fields. Thus, the contention raised by Mr.Gonsalves is sans substance and, hence, we are compelled to repel the same.

¶32We will be failing in our duty if we do not note the other submission of Mr.Gonsalves that certain persons who are totally deaf have the capacity to drive vehicles. He has referred to prevalent practices in many other countries. The learned senior counsel has laid emphasis on the international standard. On a perusal of the policy decision, we find that the experts have fixed a standard regard being had to the Indian conditions. The grounds ascribed in the policy decision as Mr.Chandhiok, learned Additional Solicitor General, would submit are meant to protect the collective at large from the road accidents. Thus, the claim put forth by the petitioners that they should be granted driving licence and should not be debarred from getting a licence, per se, is not justified. As has been stated earlier, for grant of a learner's licence, filing of medical certificate is not required but the applicant is required to go through the test as stipulated under Rule 11 of the 1989 Rules. For grant of a driving licence, one has to satisfy the conditions precedent as postulated under Section 9 and pass the test as stipulated under Rule 15 of the 1989 Rules. The claim of further privilege by totally deaf persons as a special category, in our consideration, is not permissible. However, we are obliged to certify that if an applicant is totally deaf, he has to be called for the test if he applies for a learner's licence without the

medical certificate and if he passes the test as required under Rule 11, he shall be granted the learner's licence as that is the statutory requirement. Similarly, if a person belonging to the said category satisfies the necessary criteria, he shall be allowed to obtain the licence. We are not inclined to direct that the special conditions which are permitted by other countries for grant of licence to the persons who are completely deaf as the same, we are disposed to think, is in the domain of the legislature, for the legislature understands the prevalent conditions in a set up where separation of power is an insegregable facet of the basic structure of the Constitution of India.

¶33The writ petition is accordingly disposed of without any order as to costs.

CHIEF JUSTICE

SANJIV KHANNA, J FEBRUARY 14, 2011 Pk/dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: 3rd January, 2011 % Judgment Pronounced on: 14th February, 2011 + W.P.(C) 10849/2009 THE NATIONAL ASSN. OF THE DEAF THROUGH ITS JOINT SECY. & ANR. ..... Petitioners Through: Mr. Colin Gonsalves, Sr. Adv. with Mr. Pankaj Sinha, Mr. Anuj Castleno, Advocate versus UNION OF INDIA & ANR. ..... Respondents Through Mr. A.S. Chandhiok, ASG with Mr.B.V. Niren, Mr. Sandeep Bajaj, Advocates CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ In this public interest litigation, the National Association of the Deaf and another describing themselves as pro bono publico have invoked the inherent jurisdiction of this Court under Article 226 of the Constitution of India for issue of a writ of mandamus or appropriate direction commanding the respondents to grant driving licences to deaf persons and further to issue a writ of certiorari for quashing of any policy decision restraining or creating any kind of restriction on the part of the deaf persons to get the driving licences. 2. The factual matrix, as unfurled in the writ petition, are that the petitioner No.1 is a voluntary non-government organization and the petitioner No.2 is a person whose hearing is impaired. The aim of the petitioner No.1 organization is to promote the rights and equality of life of deaf and hard of hearing individuals in India and to foster a united front of deaf people across the different states of India and to promote equal rights at all levels in all fields of life and to encourage the interaction of the deaf people through meetings at both national and regional levels. It is put forth that a writ petition being WP(C) No. 208/2006 was preferred before the Apex Court which was dismissed as withdrawn on 8.5.2006 permitting the petitioner No.1 to make a representation to the concerned authorities. Thereafter, the petitioners submitted a representation on 22.2.2007 to the Secretary of the Ministry of Surface Transport asking for issuance of driving licence to the deaf persons. In response to the said representation, a communication was sent on 10.4.2007 by the concerned department of the Government of India informing that the department was considering the matter of issuing driving licence to deaf persons with Automotive Research Association of India, Director General of Health Services and National Road Safety Council and it was further intimated that taking note of the Central Motor Vehicle Rules, 1989 (for short ‗the 1989 Rules') and discussing with the Technical Standing Committee, the issue was under consideration. As pleaded, various other communications were sent but nothing was further responded. 3. It is apt to note that the petitioner No.2 had applied for driving licence under the 1989 Rules for grant of learner's licence on 24.6.2009 which was rejected on the ground that he was suffering from hearing impairment. It is contended that the deaf persons are protected under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for brevity ‗the 1995 Act') and they are constitutionally entitled to be treated at par under the umbrella of Article 14 of the Constitution of India. It is urged that in the Motor Vehicles Act,1988 (hereinafter referred to as ‗the 1988 Act') and the Rules framed thereunder, though there is no prohibition for grant of licence to totally deaf persons, yet on the medical form, questions are included in relation to deafness. That apart, in the certificate of medical evidence, there is a provision for detailing the deafness of the applicant which is totally unwarranted. It is contended that the authorities cannot deny the licence merely on the ground of deafness without any specific medical opinion or aid of any cert