Friday, March 23, 2012

Need of standardizing the norms of child care institutions across sector

Dear Colleagues,

There are several institutions in the country that provide institutional care to children in crisis and those who need support. A large number of such institution provide services to children with disabilities. Many of these institutional may not be registered at all and many of these are registered under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. There are several that are run by religious and charitable organisations and are not registered under any law.

We have several laws that regulate or register institutions/societies providing such service. An institution can be registered as a  society, trust, non-profit company under Societies Registration Act, Indian Trust Act or under some of the State Acts dealing with Registration of Charitable institutions/trust or under the Indian Companies Act. It may also be just an unregistered organisation providing such a service. There is no binding single law that provides clarity on proper regulations of such institutions. Children in need are children, but we have actually divided them in to so many categories to be dealt by so many agencies- a disabled child by ministry of social justice, a tribal child under the Ministry of Tribal Welfare - just to name a few. Similarly there are multiple laws like Women and Children Institutions (Licensing) Act, 1956 and the new JJ Act 2000 that also deal with registration and regulation of Institutions, The persons with disabilities Act 1995 also provides for registration of institutions providing such services to children with disabilities. Then there are ones run by the Social welfare departments of the State Governments and many governed under the Ministry of Women and Child Welfare.

This has lead to a huge confusion not only among the government functionaries but also among the NGOs/Institutions about multiple registrations / recognition etc. There is no synergy or standard of rules that regulate all institutions. Thus many institutions get left out of any registrations resulting in constant new incidents of child abuse and human rights violation. Before regulating the institutions, the Government has to set its own house in order and streamline their own registration procedures by unifying the process and applying same standards to the child care institutions whether run by a particular ministry or department or registered under JJ Act or Persons with Disabilities Act. Without this, it is just not possible to account for and regulate the number of institutions that have sprung up in various parts of the country and ensure a reasonable standard of human rights.

The children are children first and thus all institutions registered under any Act/Law should follow standard common procedure and process. Registration under one law should be sufficient since it is wrong to burden the NGOs/Institutions to seek recognition and registration under multiple laws. If provisions of Juvenile Justice Act are more enabling and child rights centric lets make them the standards to be followed by all other institutions irrespective of their registration status. And let there be a single regulating agency in each state to  inspect and ensure compliance of the minimum standards in these institutions instead of "this is not under my ministry or my mandate"  psychology. We have seen this confusion in Delhi recently when incidents of child abuse were reported in Arya Orphanage.

Its never too late, I am happy that first baby steps have been taken to at least identify such institutions working across the length and breadth of the nation. Regulation can be the next step. Hope the Government has a larger perspective to ensure standardization in these institutions and if need be support those who lack resources. We can't undermine the important role being played by charitable and religious institutions and voluntary agencies in care and  development of children without any family support, though there are few black sheep as well. Need is to regulate and standardize the norms to check the abuse and neglect of children not only in institutions but also reach out through community resources to those who still haven't found a home/institution and are living in vulnerable situations on roads, pavements, etc.

The initiative by Ministry of Women and Child Development is a welcome step. Here is the news:


The Hindu : Life & Style / Society : Enhancing institutional care

Centre asks States to survey children's homes, proposes amendments to Juvenile Justice Act

Concerned over the abuse and neglect of children living in child care institutes across the country, the Ministry of Women and Child Development has asked the States to conduct a survey of all such institutions, including orphanages at the district level to ensure that these are registered as mandated under the Juvenile Justice (Care and Protection of Children) Act, 2000. The States have been asked to submit their report to the Ministry within a month.

The Centre has also proposed to amend the JJ Act to include strict penal provision for non-registration and repealing the older existing laws like the Women and Children Institutions (Licensing) Act, 1956 and Charitable Homes (Supervision and Control) Act, 1960 under which child care institutions were licensed and have so far evaded registration under the JJ Act, 2000. The State has also been asked for their views on these issues.

In a letter sent to all State governments, the Union Women and Child Development Ministry has pointed out that differently-abled children were also living in such child care institutions, many of which are also run by religious and charitable institutions, and that this should also be reviewed.

Section 34(3) of the JJ Act provides for mandatory registration of child care institutions housing children in need of care and protection with the intent of enforcing minimum standards of care for services provided to the children in these homes. The JJ Act also provides for stringent monitoring of the quality of services. “It is for this reason that this Ministry has been persistently urging the State governments and Union Territories to identify and register all child care institutions under the JJ Act. However, progress in this regard has been very slow,” Women and Child Development Ministry said in its letter to the States.

To ensure that children in child care institutions receive the best of care, and are not subject to abuse and neglect, it is imperative that all the homes running in your States housing children in need of care and protection are identified and registered under the JJ Act, the letter said.

The Ministry has also asked the States to issue public advertisements to draw the attention of all organisations running facilities for children in need of care and protection towards their obligation to register under the JJ Act. “Simultaneously, surveys may be conducted at the district level to identify such homes that are not registered and the organisation may be urged to register under the JJ Act failing which their registration, recognition or license issued under any other legislation may be withdrawn and the children shifted to any other residential homes under the JJ Act,'' the letter said.
Source: The Hindu

Thursday, March 22, 2012

Himachal Pradesh High Court directs the State to find ways to provide equal opportunities for disabled in civil services

Dear Colleagues,

This petition by Mr. Shyam Singh, a disabled school teacher from Himachal Pradesh brings out the systemic inadequacies, which I am sure exists in all states, in providing equitable opportunities to persons with disabilities in their recruitment to the civil posts in the States. only 25% of the total Class- I category posts have been filled that are reserved for persons with disabilities in terms of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act- 1995.  This also indicates that no steps have been taken by the State to fill up the backlog by taking measures suggested in the DoPT Guidelines dated 29 Dec 2005 on effecting the reservation of posts for persons with disabilities.

Such an exercise in needed in most states as we continue to face situations where lack of enabling environment do not allow persons with disabilities to compete with their non-disabled counterparts. Also the state recruitment agencies, public service commissions have not thought of organizing coaching classes for preparing the students for the competitive examinations as is being done to improve representation in civil service of persons from marginalized communities such as scheduled castes / scheduled tribes. NGOs working with persons with disabilities or the self-help groups /DPOs must take up similar initiatives to create a demand for such a need of training and lowering  the selection criteria for persons with disabilities who have been suffering exclusion due to inaccessibility of educational systems as well as attitudinal barriers of the community in reaching their full potential.

Here is the news coverage from Indian Express



Alarmed that only 25 per cent of the posts reserved for the physically-challenged in Class-I category government jobs have been filled up owing to non-availability and non-suitability of candidates, the Himachal High Court on Wednesday directed the state government and Public Service Commission to work on alternatives to provide equal opportunities to the disabled.

A division bench comprising Chief Justice Kurian Joseph and Justice Dharam Chand Chaudhary said the existing mode of selection was not in a position to ensure equal opportunity to the physically-challenged. “In terms of the objectives of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act-1995, we are of the view that it is high time that the state thinks of alternate methods of selection. It should also be thought of as whether such selection should be continued with the HP Public Service Commission.

The court passed the order while disposing off an appeal filed by Shyam Singh — a physically-challenged person who works as a school teacher in Darlaghat. The petitioner, who had appeared for Public Service Commission exam under three per cent reservation, was not selected because he “lacked merit”.

“Even in selection in respect of the reserved quota, there cannot be any compromise on standard of merit as prescribed by the appointing authority. Of course, it is certainly open to the appointing authority to prescribe lesser standard, in respect of the reserved categories to achieve the objects of such reservation,” the court said

Thursday, March 15, 2012

Mumbai High Court rules Doctors with disabilities can not be denied admission to PG Courses

Please refer to my earlier post in which the Bombay High Court had allowed admission of a disabled girl to the MBBS Course. However, it seems MCI doesn't want to be pro-active in considering disability from a human angle (doctors have been trained to look at disability from a medical angle... so it may not be their fault, its a systemic problem! :-)

However, MCI may learn from the increasing number of cases getting reprieve from the High Court on such issue and frame a disability friendly policy rather than a medically oriented "degree of disability" policy without any human touch and effort to see the ability in the disability !

Three disabled doctors get high court's reprieve

MUMBAI: Three disabled doctors who were denied the chance for admission to PG Medical Courses have got reprieve from Bombay High Court.  A division bench of Chief Justice Mohit Shah and Justice Ranjit More, in an interim order, directed authorities to consider their case for admission to a PG course in (medicine) or in a non-surgical branch. 

"(Their case would be considered) under physically handicapped category by considering (them) to be eligible for such reservation and on the basis of performance in the CET," said the judges. 

The petitions challenged the constitutional validity of the rules, which said that a candidate with more than 70% disability of the lower limbs cannot be considered to be eligible for admission. The lawyers for the petitioners said the MCI had erred in not considering that the medical courses can be divided into several categories. Dr Manoj Landge, Dr Rakesh Ukey and Dr Astha Ganeriwal were considered ineligible for admissions under this rule.  

Nagpur University challenged for discriminating against Persons with Disabilities

Dear Colleagues,

My dear friend Rajesh Asudani who works with Reserve Bank of India has moved Mumbai High Court (Nagpur Bench) against Nagpur University's open discrimination against persons with disabilities by earmarking only four posts for PH Persons that too making it "subject to availability". That indicates their intention to keep the posts unfilled and then lapse them in favour of general categories on the pretext that suitable candidates were not available! This has become the modus operandi of several Government departments which needs to change.

Here is the coverage in Times of India, Nagpur:

HC stays Nagpur University hiring over blind man's plea 


NAGPUR: A blind man has moved the high court here alleging flouting of rules by Nagpur University in appointment of lecturers. A division bench of chief justice Mohit Shah and justice Prasanna Varale, on Wednesday, stayed the entire recruitment process of the university. The court also issued notices to the respondents including UGC chairman Ved Prakash, NU vice-chancellor Vilas Sapkal and state secretary for higher and technical education, directing them to file reply within two weeks.

Rajesh Asudani (35), a meritorious candidate who aspired to be a lecturer, had argued in-person during first hearing but taking into consideration his blindness, the court appointed Ashutosh Dharmadhikari as amicus curiae to plead his case. He claimed that NU violated Persons with Disabilities (Equal opportunities, protection of rights and full participation) act, 1995, in its advertisements for recruitment of professors, associate and assistant professors. He said these advertisements provided reservation for the disabled but "subject to availability" and stated that preference would be given to physically handicapped. He added that advertisements failed to specify the exact nature of disability and were against various circulars issued by UGC, Government of Maharashtra, Ministry of Social Justice and Empowerment, and also against the settled laws established by judgments of Supreme Court and various high courts.

Asudani, working with RBI as Class-I officer, pointed out that NU had issued advertisements for lecturers' recruitment three times in five years - on July 13, 2007, March 26, 2008 and August 30, 2011. The petitioner contended that reservation of posts for disabled persons under Sections 32 and 33 were binding on all the establishments but NU disregarded them in letter and spirit while reserving only four posts for physically handicapped persons, that too making it "subject to availability". He took strong objection to this rider terming it as patently illegal and militating against the letter and spirit of law.

Asudani argued that same rider had not been placed for filling up posts for SC/ST candidates, even though some posts have been advertised numerous times. He cited examples of head of NU post graduate law department Shirish Deshpande and retired sociology lecturer Prof Lakshman Khapekar who earned distinction for their unmatched academic success despite blindness from this very university. He prayed for cancelling the advertisements and directives to NU to come up with new one with proper reservations for disabled.

Source: http://timesofindia.indiatimes.com/city/nagpur/HC-stays-Nagpur-University-hiring-over-blind-mans-plea/articleshow/12270803.cms

Friday, March 9, 2012

Court approached to declare Courts Inaccessible in Kenya



Dear Colleagues,

The physical access to public buildings is a major area of concern world over. While many governments have started taking pro-active measures, few are waiting for somebody- generally user groups or NGOs to point out to them that the buildings are inaccessible. While there are less pro-active measures from the governments, the stakeholders are forced to approach various advocacy mechanisms to claim their legitimate right.

The fortunate part is that the Law and the Courts stand by them.  The recent case of Kenya is one good example of how activists and persons with disabilities should use the platform of Courts to move ahead if accessibility is not on the priority list of governments!

Subhash Chandra Vashishth
Advocate-Disability Rights, India


An organisation has filed a case seeking to compel the Judiciary to build ramps to allow people with physical disabilities access courtrooms.

The executive director of Kenya Paraplegic Organisation Timothy Wetangula and a police officer who was crippled by a road accident filed the case accusing the Judiciary of failing to recognise the needs of physically disabled litigants.

They want the High Court to declare that the new Milimani Law Courtrooms and The Supreme Court Building in Nairobi are not accessible to persons with disabilities because they only have concrete barriers, stairs and elevations.

Mr Wetangula and Mr Paul Anupa want an order directing that all the courts in Kenya be fitted with ramps to facilitate access for all persons with disabilities.

They contend that they cannot attend the hearing of Mr Anupa's petition as there is no ramp at the Milimani building, making it impossible for persons on wheelchairs or crutches to get to the courtrooms.

As an interim measure, Justice David Majanja of the High Court said he will make administrative arrangements to ensure that Mr Wetangula and Mr Anupa attend the hearing on Wednesday.

The judge gave the directions after lawyer John Chigiti, who is representing the two, told him that the petitioners want to attend the hearing but they cannot access the courtroom.

Mr Anupa has filed a case through the Kenyan Paraplegic Organisation challenging the decision by the Police Commissioner to send him on retirement on medical grounds in 2009.


Wednesday, March 7, 2012

DHC | All India Confederation Of The Blind Vs Union of India (Min. of Railways) | WP (C) 23132 of 2005 | 07 Mar 2012 [Judgement]


IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No.23132 of 2005
Reserved on: 16th January, 2012. 
Pronounced on: 7th March, 2012.


      ALL INDIA CONFEDERATION OF THE BLIND                   . . . PETITIONER
                             
                                  VERSUS

      UNION OF INDIA (MINISTRY OF RAILWAYS)                  . . .RESPONDENT
                               
                               
CORAM :-   HON'BLE THE ACTING CHIEF JUSTICE
                     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, Acting Chief Justice

1.    The respondent/Railways had issued an advertisement/ Employment Notice No. 1 of 2005   for recruitment of Group "D‟ staff in the Northern Railway.  As many as nine categories of posts of Group B staff were mentioned indicating total posts against each category. Bifurcation of these posts were also given, viz., number of posts which were General Category and those in Scheduled Castes, Scheduled Tribes, Other Backward Classes and ESM categories. The petitioner felt dismayed by reading this advertisement as it did not provide any reservation for Physically Handicapped persons (PH persons for brevity) though the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (hereinafter referred to as ‟the Disabilities Act‟) mandates that 3% reservation is to be given to those persons suffering from disability as defined in Section 2(d) of the Disabilities Act. This prompted the petitioner to file the instant petition, in the nature of Public Interest Litigation questioning the non-provision of reservation to the PH persons.

2. The instant petition is filed by Shri M.K. Rastogi, Chairperson, Advocacy & Employment Committee of the petitioner organization of disabled persons. A copy of his attorney is placed as Annexure P-1. The respondent/Department, viz., Railway Recruitment Cell, Northern Railway has issued an advertisement Employment Notice No.1/2005 to fill up thousands of Group "D‟ posts in the Employment News (29 October-04, November, 2005). Disabilities Act is a remarkable piece of legislation for its main aim is to provide for and ensure equal opportunity, protection of rights and full participation of disabled persons in every walk of life. As per Section 33 of the Disabilities Act, the respondent is bound to reserve seats for the PH persons to the extent of 3% out of which 1% each must be reserved for the Locomotor (Orthopedically handicapped), hearing impaired and visually handicapped candidates. It is pointed out that authority the Group "D" posts advertised in the impugned employment notification have also been identified suitable to be held by disabled persons. In this connection, an Expert Committee appointed by the Ministry of Social Justice and Empowerment (hereinafter referred to as "the appropriate Government") had dealt with the matter of identification of posts in Groups - A, B, C and D for reservation. The said Committee in its report notified by the appropriate Government vide their Notification dated 31.5.2001 made the following recommendations:
"(b) The nomenclature used for respective jobs in these recommendations shall also mean and include any nomenclature used for the comparable post with identical function of the identified post. 
(c) The establishments covered under the persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Sec. 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Govt. the establishment under Sec. 33 of PWD Act 1995 can approach the inter departmental committee constituted for the purpose to look in to the matter regarding exemption from Sec. 33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for person with disabilities. 
(d) List of the identified jobs proposed to be notified hereinunder is in addition to an not in derogation of the earlier list published by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, Govt. of India in the year, 1986. This is in accordance with Section 72 of the Persons with Disabilities Act, 1995."
3. It is further specifically stated by the petitioner that the respondent has not obtained any exemption in respect of the said advertised posts for excluding the same from the provisions of reservation to the disabled persons and therefore, 3% posts should have been reserved. Cognizance of this petition was taken by issuing notice on 07.12.2005. On 07.2.2006, an interim order was also made to the effect that the corrigendum to the aforesaid advertisement be issued for the post which are to be filled on account of 3% reservation for the PH persons pursuant to the applicability of Disability Act to all such posts which have been identified by the respondent for which examination is to be held on 12.2.2006, 26.2.2006 and 05.3.2006. Once examination was scheduled on 12.2.2006 and since it was a too near date when the order was passed on 07.2.2006, issuance of corrigendum for this examination was spared. Thereafter, various orders have been passed from time to time impressing upon the respondents to provide 3% reservation for PH persons in the post which are to be filled up by taking into consideration the backlog as well as in the past, no such reservation was made. We would like to reproduce the order dated 10.3.2008:
"2. By an order dated 7th February, 2006, the respondents were directed to issue a corrigendum to the effect that the posts to be filled up shall have a reservation of 3% for physically handicapped candidates. The Railway Board was also directed to inform the Zonal Railways as to which posts fall within the reserved categories for such candidates. The matter was thereafter adjourned from time to time on one ground or the other till 7th November, 2007 when this Court noted the submission made on behalf of the respondent that Ministry of Railways was in the process of identifying suitable posts for the railways for physically handicapped persons. Learned counsel for the respondent was directed to place on record, within 4 weeks, further developments in the matter. Ms. Mohan today submits that she had received from the respondent a letter together with a list of jobs/posts identified in Gr.-C and Gr.-D categories for persons with disabilities. She seeks and is granted permission to place the same on record. A copy of the same has been given to counsel opposite, who argues that even when posts may have been identified for handicapped candidates against which such candidate can claim reservation, yet the benefit of such reservation is not being given to them. He drew our attention to an advertisement notice dated 29th April, 2006 according to which several posts have been advertised for being filled up but the advertisement does not made any provision for reservation for the benefit of the handicapped candidates. He submits that similar other advertisements are being issued all over the country in total disregard of the obligation created by the provisions of the Act. When asked whether the respondents have appointed any handicapped candidate against the reserved quota meant for them and, if so, when and against which cadre, Ms. Mohan was not in a position to provide any satisfactory answer without instructions. She sought 6 weeks time to do the needful. 
3. In the circumstances, therefore, we deem it just and proper to direct that the requisite information in relation to the posts which have been identified by the Government/ Railways for the grant of benefit of reservation to the handicapped candidates and the actual recruitment of handicapped candidates against the quota meant for them shall be furnished by the respondent within 6 weeks from today to the Registrar (Rules) of this Court who shall collate the said information and submit a report after proper consideration whether there is any default in the discharge of the obligation by the Railways/Government and if so the shortfall in the recruitments to be made against the handicapped category. The parties shall, in this regard, appear before the Registrar (Rules) on 13th May, 2008."

4. Thereafter, the information was sought by the Registrar of this Court from time to time. On that basis, Registrar (Vigilance) submitted its report on 06.1.2009. After this report was considered, this Court passed the orders dated 20.1.2009 and the salient features of this report are as under:
"(i) Since there is no direct recruitment to Group „B‟ posts, the provision of PWD Act would not apply to any post in the said category.
(ii) The calculation of posts to be treated as reserved for disabled categories has been worked out taking into account the cadre strength of all categories including "safety" category which is otherwise sought to be treated as exempt from reservation.
(iii) The joint report brings out the shortfall in the recruitment of disabled persons which is to the extent of 66 posts in Group „A‟ (from the year 1996 upto the year 2007) and 2377 & 1811 in Group "C" and Group "D" posts respectively (from the year 1996 upto 31.10.2008).
(iv) The information about Group „C‟ and Group „D‟ categories, as given in Table -I annexed to the joint report, shows that out of the 24 zones/Production Units of the Railways, as many as 11 have not been maintaining the Roster till date. However, there is an assurance held out by respondent/Railways vide heir affidavit dated 26.11.2008 that the Roster System would be adopted within the time indicated by each zone.
(v) The recruitment to Group „A‟ posts being through UPSC, the information on maintenance of roster separately given (in Annexure „A‟ to the affidavit of Mr. Iranius Tirki) shows that UPSC has been maintaining Roster System from the year 2006 onwards, for such category."
5. As per the above order, there was a shortfall of 66 posts in Group „A‟ , 2377 in Group „C‟ and 1811 in Group „D‟. The Court observed that in the case of National Confederation of Blinds Vs. Union of India & Others [W.P.(C) No.15828/2006] orders dated 19.2.2008 were passed directing the Union of India to constitute a Committee consisting of Chief Commissioner for Disabilities; Joint Secretary, Department of Personnel and Training; Secretary, Ministry of Social Justice and Empowerment and Joint Secretary, Staff Section Commission with direction to take steps for recruitment drive in respect of the vacancies for PH persons in Group A, C and D posts by special recruitment drive by organizing centralized recruitment against backlog so as to fill up the vacancies by utilizing at least 50% of the vacancies available and fill up the remaining vacancies by 31.12.2010. Taking note of that order, in this case on 20.1.2009, the Court directed for launching a special recruitment drive to fill up backlog of vacancies so as to fill up 50% of the available posts in the respective Zones/Production Units for this purpose alone. Though there was lukewarm response to this order and reluctance in compliance, with little arm twist (which became inevitable and justified), the respondents came around and started taking steps for filling up the backlog. The respondent also filed the affidavit stipulating the time schedule within which the special recruitment drive to fill up backlog PH persons was to be finalized. The fact remains that this schedule is not adhered to and therefore, one of the submission of the petitioner was that fresh schedule has to be laid down with direction to the respondent to strictly follow the same.

6. The respondent filed affidavit dated 06.7.2011 in which it is mentioned that several notifications to fill up vacancies by the Railways including current as well as backlog vacancies of PH persons have been issued. This affidavit refers to the advertisement in December, 2010 whereby 85068 vacancies are invited out of which 3700 have been reserved for PH persons. It is pointed out that this is in addition to 1058 Group „C‟ and 1367 erstwhile Group „D‟ vacancies already filled up by PH persons.

7. We may note that insofar as backlog of Group "D‟ is concerned, the steps have been taken to fill the same and therefore, filling up Group "D‟ posts does not pose any problem. The reluctance on the part of the respondent is in respect of filling up of 66 posts in Group "A‟ and those Group "C‟ posts which are technical in nature, viz., that of Civil, Electrical and Mechanical. The respondent/Railway is apprehensive of the post that PH persons may not be able to discharge the duties of these posts. It is, thus, stated in affidavit dated 06.7.2011 that the Ministry of Railways has approached the Ministry of Social Justice and Empowerment for grant of exemption from reservation for PH persons in certain posts under Section 33 of Disabilities Act keeping in view the arduous and technical nature of tasks involved in some of the posts in these categories. It is also submitted that even in number of such posts in these categories, the nature of exemption sought is only partial, i.e., for only one of the many sub-categories of disability identified by the appropriate Government. For time being, those posts are lying vacant, identifying the posts which can be meant for PH persons specifying the nature of disabilities as well. It is an admitted case that such an identification has been carried out. It is also an admitted fact that the Railways had approached the appropriate Government for exemption under Section 33 of the Disabilities Act, which was specifically refused.

8. In this backdrop, the question that arises for consideration is as to whether the Railways can stay hands and would not take steps for filling up the posts merely because it has approached the appropriate Government under Section 33 of the Disabilities Act again for exemption.

9. Before we answer this question, we recapitulate the exercise already done and also point out that the request of the Railways for exemption was earlier turned down. The appropriate Government had constituted an Expert Committee on 02.7.1999 in pursuance of the provisions under Section 32 of the Disabilities Act for identifying suitable posts for different kind of disabled persons. The Expert Committee decided that one such Committee should be set up for each of the three categories of the disabilities which was provided reservation under Section 33 of the Act. Accordingly, three sub- Committees were set up:
(i) Sub-Committee for Locomotors Disability or Cerebral Palsy;
(ii) Sub-Committee for Hearing impairment;
(iii) Sub-Committee for persons with blindness or low vision.
10. According to the appropriate Government itself, these Sub- Committees made an in-depth study of the various jobs done in Government offices as well as Public Sector Undertakings, including the jobs already identified by the Expert Committee in 1996. The Expert Committee submitted its report on 03.3.2001. This report was circulated to all the Central Ministries/Departments to obtain their comments on the recommendations/posts identified by the Expert Committee. Based on the comments received, the appropriate Government issued Notification dated 31.5.2001 notifying the report as Annexure-II for information and further necessary action and also clearly stating that the list of jobs identified by the Committee is by no means exhaustive and Ministries/Departments etc. may have to further supplement this. In the said report which was annexed with the Notification, it was inter alia remarked:
"(b) The nomenclature used for respective jobs in these recommendations shall also mean & include any nomenclature used for the comparable post with identical function of the identified post.
(c) The established covered under the Persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Sec. 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Govt. the establishment under Sec. 33 of PWD Act. 1995 can approach the inter departmental committee constituted for the purpose to look into the matter regarding exemption from Sec.33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for persons with disabilities."
(emphasis supplied)
11. It is not in dispute that the posts which the respondents are not willing to fill as of now are included in the report of the Expert Committee. In fact, vide Notification dated 18.1.2007, the appropriate Government based on the recommendations of the three Sub-Committees which were constituted on 28.2.2005 identified some more posts in Group ‟A‟ and Group ‟D‟ to be suitable for PH persons. These included various posts of Civil Engineers, Electrical Engineers as well as Mechanical Engineers. It is clear from the above that no discretion was left with any Ministry or Department to exclude any post under Section 33 of the Act. The only permission which was given was that these establishments who felt that the required exemption of filling up of posts against identified posts by the appropriate Government could approach for exemption under Section 33 of the Act. The respondents herein did approach and sought exemption under Section 33 of the Act. However, this exemption has been refused repeatedly since 2001.

12. We would like to refer to one such rejection vide Office Memorandum dated 09.2.2010, whereby the respondent was informed as under:
"The undersigned is directed to refer to Ministry of Railways D.O. N.2009/E(GR)1/16/3 dated 19.1.2010 addressed to Secretary (SJ&E) on the subject mentioned above and to say that this Ministry has time and against informed Ministry of Railways about the decision taken in this regard, which in brief are as under: 
(a) Ministry of Railways vide our O.M. No.16-
52/2005-DD.III dated 29.12.2005 (Annex.-I) was informed that the Expert Committee in its meeting held on 14.03.2005 under the Chairmanship of Secretary (SJ&E) had decided that all non-technical services examination included in the Civil Services Examination and Engineering Services were suitable for providing reservation to PWDs. 
(b) It was again informed vide our O.M. No.16-
52/2005-DD.III dated 14.02.2006 (Annex- II) that all non-technical services namely Indian Railway Accounts Service & Engineering Services, IRES, IRSEE, IRSME, IRSSEE, IRSS and Assistant Divisional Medical Officer were found suitable for reservation for PWDs. 
(c) Thereafter, Ministry of Railways again and again submitted their proposals to review the matter citing nature of work and work environment of the posts for grant of exemption. 
(d)     It was again informed inter alia, vide our OM No.16-27/2005-dd-III     dated     24.10.2008 (Annex - III) and dated 10.11.2008 (Annex- V) that until exemption is granted for any posts of Engineering Services under Section 33 of PwD Act, it is mandatory for Railways to provide 3% reservation to PwDs (in the matter of Jayanta Kumar Khamri, candidate of Engineering Services Examination 2007, who had obtained a very good position in the merit list.
(emphasis supplied)"
13. We would also like to reproduce a portion of Minutes of the Inter-Departmental Committee (IDC) held on 12.2.2010 regarding exemption of posts/establishments from the purview of Section 33 and 47 of the Persons with Disabilities Act, 1995:
"11. Director NIVH stated that the expert committee while identifying the posts for reservation had gone into all details including nature of the jobs and suitability of PwDs with particular disability. They had examined the posts of Railways also. There were a number of capable PwDs who deserve to get a chance. 
12. Addl. Member, Ministry of Railways informed the Committee that there were 750 categories of posts in Railways and exemption was being sought for a few posts which involved field postings. They were complying with almost 90% of reservation in Group C & D categories. They were seeking reservation in certain Group A and other categories because of functional criticalities. He requested that instead of generalities, the Committee should discuss the merits of each proposal. 
13. Thereafter, the Committee first discussed the request for exempting the posts of Asst. Engineers Civil, Mechanical & Electrical (Group A posts) in the Indian Railway Service of Engineers (IRSE). It was felt that the reasons given for seeking exemption for all these posts was based on a surmise that "an officer with a disability may find that field working not only inconvenient but also unsafe for public and himself as well". It was felt by the other members of the Committee that no effort had made to recruit persons with disabilities in such posts and therefore the assumption could not be made that a person with disabilities who was qualified to be considered for such posts would not be able to meet the demands of the jobs. Moreover, the further assumption that "even if an office with disability is given a specific assignment not involving field/operational posting, this will restrict his exposure to overall railway working and may even affect the promotional prospects due to limited and restricted exposure to railway working causing frustration in such an officer" is also premature. The frustration resulting from denial of opportunity for recruitment to such posts after being suitably qualified, would be much higher. As regards safety of the officer & the public at large is concerned, these aspects can be appropriately considered at the time of recruitment, keeping in view the extent and nature of disability. The committee, thus, did not favour en masse exemption of such posts."

14. It is in this backdrop we have to examine as to whether on the special plea that the respondent is approaching the appropriate Government against for exemption - can it delay the process of clearing the backlog by filling up the posts which are meant for PH persons? Answer has to be emphatic "NO". In this the first instance, position that prevails as of now in law has to be taken into account. There is no exemption given to the Railways. The vacancies have arisen; there is a backlog.
Therefore, the Railways are bound to fill those vacancies once they are identified by the appropriate Government as per which these posts can safely and conveniently be meant for PH persons. The respondent is attempting to do what is not only impermissible in law, but even was specifically forbidden vide Notification of 2001 by the appropriate Government. Once the respondent approached for exemption and it was denied, it cannot still show stubborn attitude on nurturing a feeling of "fear of unknown". When the Expert Committee had made in- depth study and had come to the conclusion that the PH persons suffering from specified disabilities are competent to effectively discharge the duties on these posts, the respondent/Railways cannot sit over the judgment. On the contrary, it is bound to accept the same.

15. We may also note here another interesting argument of the learned counsel for the petitioner. Referring to the provisions of Section 33 of the Disabilities Act, he submitted that as per the proviso thereto, only an "establishment" can be exempted and not a particular "post". From reading of this proviso, it appears to be correct, which reads as under:
"33. Reservation of posts. - Every appropriate Government 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.
16. We must take note of the rapid advancement in medical science and technology which is progressively ameliorating the hardship faced by the persons suffering from various kinds of disabilities. With the advancement in technology and advent of supports, as may be provided through supported employment, the notion of equating disability with inability to work is erroneous and outmoded. There should be a presumption of ability that a person can achieve employment and other rehabilitation goals regardless of the severity of his or her disability, if appropriate services and supports are made available.

17. Thus, 10 years ago, when the Expert Committee was of the opinion that the persons suffering from a particular kind of disability would still be entitled to be appointed to these posts, with the passage of time, these posts would have become more suitable for these PH persons. This is also an indicator that there is hardly any scope for the respondent to get exemption under Section 33 of the Act, moreso, when it is repeatedly refused on the earlier occasions.

18. It is high time that the concerned persons in the respondent Ministry should change their mindset. It has to be recognized that there is a paradigm shift in the approach that is required to deal with the issue concerning disability. The traditional approaches to disability had depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons were viewed as abnormal, deserving of pity and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalizing the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. However, after emphasis on human dignity in the U.N. Charter or Universal Declaration of Human Rights or several International Covenants as well as provisions in the Constitution of India, in the last 50-60 years the concept has acquired new and wider meaning comprehending in its sweep various facets. It has now been evolved as a human rights issue. The move from the patronizing and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights." (See Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2- 2001).

19. Alas! Notwithstanding the aforesaid shift in approach at international level, mindset of some of the Government functionaries has still not changed. We have to remind ourselves that disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self- reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically under- estimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non- disabled.

20. It is to ensure these very rights that Disability Act was enacted which, in fact, reflects the spirit of Indian Constitution itself. The Disability Act places responsibility on the society to make adjustments for disabled people so that they overcome various practical, psychological and social hurdles created by their disability. The Act places disabled people at par with other citizens of India in respect of education, vocational training and employment. There have been and are a number of programmes, schemes and services for disabled people in India but there was no separate law to protect the rights of disabled people. The Act claims to fill that void. It seeks to establish a coherent and comprehensive framework for the promotion of just and fair policies and their effective implementation. It creates formal procedures, which hasten the process of full and total integration of the disabled in the society. The Act has made education of children with special need a basic focus. The main aim of PWD Act is also to define the responsibilities of the Central and State Governments with regard to the services for disabled persons. The Act aims to ensure full life to a disabled individual so as to enable him to make full contribution in accordance with his disability condition.

21. Employment rights of persons suffering from disability have to be examined in the aforesaid perspective. When Disability Act confers special and preferential rights to persons with disability in Government employment providing 3% reservation of vacancies for them, it has to be taken to its logical conclusion. This right should not be only on papers, but has to be translated into reality. In the present case, when the Competent Authority has itself undertaken the necessary exercise and found that persons suffering from a particular kind of disability are competent to these jobs, then there remains no justification with respondents to deny these benefits.

22. We accordingly allow this writ petition in the following terms:
The respondent shall fill up the backlog of reserved posts of PH persons. For this purpose, special recruitment drive as directed vide orders dated 20.1.2009 shall be undertaken. The revised schedule shall be fixed with two weeks fixing time limit within six months within which all the vacancies in Group - A, C and D shall be filled up. There has to be strict compliance of the aforesaid direction in a time bound manner and no laxity or indiscrimination shall be tolerated in this behalf. We make it clear that since the respondents have already delayed the process, the time schedule should be strictly adhered to and no further extension shall be granted. The petitioner shall also be entitled to cost quantified at `25,000/-.

ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE MARCH 07, 2012 pmc


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