Monday, September 3, 2018

LPG dealership not a poverty alleviation scheme so as to come under Section 37 of The Rights of Persons with Disabilities Act, 2016, opines Bangalore HC

Poverty alleviation is for consumers- says Karnataka High Court, rejecting plea that questioned oil companies reserving only 3 per cent of LPG dealerships for people with physical challenges.

The High Court has refused a plea by an organisation working for the welfare of physically challenged persons to reserve five per cent of LPG dealerships to such people. The HC said that it cannot apply Section 37 of The Rights of Persons with Disabilities Act, 2016 as the LPG dealership given by State-owned oil companies are not government welfare schemes where this rule needs to be applied.

Karnataka Rajya Vikalchetanara Rakshana Samiti approached the HC against Indian Oil Corporation, Bharat Petroleum, Hindustan Petroleum and the Union Government challenging a notification by these companies that wanted to select 238 LPG distributors.

As per the RPD Act, the reservation for physically challenged persons is five per cent. But the notification had reserved only 6 distributorships for the physically challenged instead of 11, it was argued. This was less than 3 per cent.

The HC however said that the distributorship is not a welfare measure. It said, “In the overall comprehension of the matter, we are satisfied that even if the award of LPG distributorships, essentially a matter of commercial contract, is a welfare measure and leads to manifold empowerment and all-round development of society, it cannot be termed as a notified scheme for poverty alleviation and development.”

The court also said that poverty alleviation in LPG is directed at consumers and not distributors. So, reservation for distributors under the Act was not possible. It said, “Needless to reiterate that the availability of LPG to the persons below poverty line may be correlated with the poverty alleviation, but that relates to the consumers and not to the distributors.”

The division bench of Chief Justice Dinesh Maheshwari and Justice S Sunil Dutt Yadav refused to consider the distributorship licencing as a poverty alleviation scheme. It said, “The award of LPG distributorships is taken up essentially by the three State-owned oil companies and is not any notified scheme of the appropriate Government or local authorities, which could be classified as a poverty alleviation and development scheme.”

Noting that three per cent of the distribution agencies are already reserved for physically challenged persons, the HC said, “The provision for reservation by the respondent Oil Companies, who are the agencies and instrumentalities of the Government, prima facie indicates their attention to the requirements of the persons belonging to different classes and categories. However, for that matter, we find no reason to issue a mandamus to provide for extra reservation for persons with disabilities by operating Section 37” of The Rights of Persons with Disabilities Act, 2016.

However, the HC said that claims of other concessions in application fee and financial assistance can be sought by making appropriate representation to the concerned authorities.

Sunday, February 18, 2018

Delhi HC directs IIT Delhi to re-admit and coach student with disability expelled for failing [Judgement Included]

Dear Colleagues,

In the instant case, Manif Alam, a student with 50% locomotor disability had secured admission in MSc (mathematics) at IIT-Delhi under the reserved category for persons with disabilities in the academic year 2017-18. However, on January 9, 2018, his name was suddenly struck off the rolls without even giving him a chance to explain why he had not been able to secure the minimum score of 4.00 SGPA in the first semester.

The petition filed before the Delhi High Court citing various provisions of the new Rights of Persons with Disabilities Act 2016 & case laws prayed for setting aside the arbitrary decision of expelling the student without giving him an opportunity to even improve his performance. Reliance was placed on the observations of the Hon'ble Supreme Court in Avinash Singh Baghri & Ors. v. Registrar IIT Delhi & Anr. in WP(C) 535 of 2008. 

Hon'ble Justice Rekha Palli, also referred to para 26 of the decision of Supreme Court in the case of Avinash Singh Baghri vs. Registrar, IIT, Delhi in W.P.(C) 535/2008, wherein in the context of students belonging to SC/ST and OBC categories, it was held as under:- 
“26. It is not in dispute that SC and ST are separate class by themselves and the creamy layer principle is not applicable to them. Article 46 of the Constitution of India enjoins upon the State to promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice and all forms of exploitation. These socially and economically backward categories are to be taken care of at every stage even in the specialized institutions like IITs. They must take all endeavour by providing additional coaching and bring them up at par with general category students. All these principles have been reiterated by the Constitution Bench of this Court in Ashok Kumar Thakur vs. Union of India & Ors., (2008) 6 SCC 1.”
The writ petition was vehemently opposed by IIT Delhi while the other respondents including the Chief Commissioner for persons with disabilities, Ministry of Human Resources and Development as also Ministry of Social Justice and Empowerment supported the petition strongly in favour of the rights of the student with disability.

The judge expressed, "In my view the respondent Institute cannot, by placing reliance on its Rules, defeat the very purpose of the the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rights of Persons with Disabilities Act, 2016. I cannot lose sight of the fact that both these aforesaid Acts are special legislations dealing with persons with disability ensuring equal opportunities, protection of rights and full participation and therefore it is the duty of every Educational Institution to make an endeavour to ensure that the special objects of these Acts are achieved. Respondent No.1-Institute having admittedly failed to provide special facilities by way of extra coaching and guidance to the petitioner has failed in its duty and for this reason alone, the impugned order is liable to be set aside. The petitioner surely deserves a chance to improve his performance and make an attempt to clear his backlog for which purpose the respondent Institute ought to give him extra coaching and guidance.

Directing the premier institute to immediately re-admit Manif Alam, the court said, “If this is the state of affairs of the IITs in India, one can only imagine what goes on in the institutions which get lesser funds and guidance from the Union government.”

Underlining that Rights of Persons with Disabilities Act 2016 mandates it to be the duty of all educational institutions to “provide necessary support to maximise academic and social development consistent with the goal of full inclusion”, Justice Rekha Palli said the institute must be “more sensitive towards the needs of persons with disabilities”. This mandate can never be achieved if such students are expelled without giving them another opportunity to attain the necessary level, she said.

Allowing the plea of the student, HC stressed that “the core issue...is as to whether a student like the petitioner who is able to join a premier Institute like IIT-Delhi only because of the 5% reservation provided for ‘persons with disability’ can be expelled after the very first semester on account of his inability to meet the criteria fixed for general students who had admittedly joined the institute with much better academic backgrounds in terms of marks”.

The objective of the Act is to give the disabled people an opportunity to join the mainstream, the court said. To achieve this, the educational institutes should give them extra coaching and guidance if needed, it stressed. “A mere reservation at the time of entry into the institutes would become meaningless if the institutes like IIT-Delhi don’t do their bit and extend a helping hand to such students.”

Rejecting IIT-Delhi’s stand that it is not bound to follow these norms as it is not affiliated to UGC and is autonomous, the court made it clear that the disability act is fully applicable in this case. By not providing special facilities through extra coaching and guidance, IIT-Delhi “has failed in its duty and for this reason alone, the order is liable to be set aside. The petitioner surely deserves a chance... to make an attempt to clear his backlog”, the court said. The institute ought to give him extra coaching and guidance, it added.

Setting aside the impugned order of the IIT Delhi dated 09.01.2018, the Court directed the respondent IIT Delhi to immediately re-admit the petitioner and also provide him extra coaching, if the need be. 

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