Monday, December 20, 2021

Madras HC | M. Sameeha Barvin Vs. Govt. of India (Min. of Youth and Sports)

Court:         Madras High Court

Bench:         Justice R Mahadevan

Case Title:  M. Sameeha Barvin Vs.  Govt. of India (Min. of Youth and Sports) and Four Others

Case No.      Writ Petition No. 16953 of 2021

Date of Judgement : 20 December  2021

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Brief Case

“Disabled women struggle with both the oppression of being women in male dominated societies and the oppression of being disabled in societies dominated by the able-bodied”  - Susan Wendell

This explains the tribulations faced by the petitioner, who finds it impossible to speak or listen, but able to achieve gold and silver medals in long jump and high jump at the State and National levels, having been denied the opportunity of participation in the Fourth World Deaf Athletics Championship, 2021, held at Lublin, Poland and being able to participate in the same only on the strength of the interim order dated 13.08.2021, on knocking the doors of this Court.

The 18-year-old M. Sameeha Barvin had moved the court alleging gender discrimination after AISCD refused to select her despite a good performance in the trials. In her petition, Sameeha said that of the 12 athletes who had participated, 10 were men and two women and she had finished first in the latter category. On seeking to know why she wasn’t selected, it was disclosed that the selection authorities were against sending a lone female member to the event. The athlete, who has 90 per cent hearing impairment, said this amounts to gender discrimination.

Justice R Mahadevan who investigated the issue said Sameeha’s effort can’t be ignored. “Even going by the past records of the petitioner, she had won 11 gold medals, one silver and one bronze in various state and national events. This achievement of the petitioner cannot be simply brushed aside,” he said. Furthermore, he stated that no female athletes were selected, and Barwin deserves to take part in the championship. 

“Admittedly, out of the five selected athletes, none of the female athlete were selected. In the female category, it was the petitioner who stood first and therefore, in all fairness, the petitioner ought to have been selected by the respondents so that she could bring laurels to the country by participating in the 4th World Deaf Athletics Championship,” the court said.

Interim order: 

The Madras High Court single bench had earlier issued an interim order directing the All India Sports Council of the Deaf (AISCD) to permit 18-year-old athlete Sameeha Barwin to participate in the World Deaf Athletics Championship to be held at Lublin, Poland from August 23-28,2021. The representative of the Ministry of Youth and Sports had said the ministry will abide by the court’s decision. 

The Final Order:

After the detailed analysis and findings, the Court  reached the conclusion that this was a case of discrimination based on the gender as well as the disability, due to which, the petitioner  faced several difficulties and barriers to participate in the international event. The State and Central Governments, being the competent authorities to provide and ensure support and safety to the sports women with disabilities, so as to inspire their confidence freely and take part actively in the events at all levels, have failed to do the same in an appropriate manner. 

Therefore, in exercise of the power  conferred under Article 226 of the Constitution of India, to render substantial justice, this court issues the following directions to the respondent authorities for the purpose of streamlining the policy qua woman athletes with disabilities, in consultation with experts, so as to enable them to participate in all the events at State, National and International levels, with equality and dignity:

(i)    to prevent or prohibit unfair discrimination against the women athletes with disabilities, on one or more grounds including race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(ii)    to provide adequate financial assistance and all other requisites to the women athletes with disabilities, so as to participate in all the events.

(iii)    to follow proper selection process, so as to enable the meritorious candidates to participate in the events.

(iv)    To provide necessary training and free medical facilities to all the women athletes with disabilities, who achieve meritorious level in the respective sports for participation in all the international games.

(v)    to provide all possible means to entertain women athletes with disabilities to utilise their fullest potentials and capabilities so as to achieve success in all the events.

(vi)    to provide all the disabled friendly materials, clothes, prosthetics and other accessories that may be required by the women athletes with disabilities in day today affairs, with incentives so as to encourage and nurture their excellence in the respective sports and to participate in the events at all levels.

(vii)    to extend the financial assistance to one of the family members, who accompany the disabled female athletes to participate in the international games. 

(viii)    To give effect to the principle of reasonable accommodation by providing all assistance that are required / requested by the females athletes with disabilities so as to enable them to participate in the international games, on par with males.

(ix)    to ensure safety and security of the female athletes with disabilities during their travel, irrespective of number of participants, so as to inspire their confidence freely and take part actively in the events at all levels.

(x )    to sensitize the male counter parts and inculcate the sense of equality in their mind, so as to maintain safe environment for women athletes at all levels.

(xi)    to reward all the disabled women participants in the international games, irrespective of their achievements or otherwise.

(xii)    Must ensure that all the women athletes whether with or without disabilities, be given equal treatment on par with males, so as to enjoy full and equal rights and freedoms and to maintain their dignity.

Read the Court Order embedded below:

Thursday, July 22, 2021

Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly

Court: Madrash High Court, India

Bench: Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy 

Case No(s): W.P. No. 5957 of 2021(Lead Case) along with WP 38224 of 2005 and WP 923 of 2007

Case Title:     Vaishnavi Jayakumar Vs. State of Tamil Nadu & two Others (Lead Case)

Date of Hearing: 22 July 2021

Case Brief 

In a push for the rights and independence of people with disabilities in their commute, the Madras high court on Thursday restrained Tamil Nadu from purchasing any new bus to its fleet in the public transport system unless such buses were disabled-friendly as prescribed by law.

The first bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy passed the interim injunction on a batch of pleas that have been pending before the court for years including from as far back as 2005, seeking universal use of disabled-friendly buses in public tranport fleet. 

One of the writ petitions in the batch i.e. W.P. No. 5957 of 2021 had been filed by cross disability rights advocate, Vaishnavi Jayakumar. She had challenged a Government Order (GO) issued on February 24 this year, for introduction of only 10% of low floor buses and 25% of buses fitted with lift mechanism or any other suitable mode, to provide easy access to wheelchair bound passengers, out of the total buses to be procured for Metropolitan Transport Corporation (Chennai) Limited.

The petitioner had contended that the GO violates Section 41 of the Rights of Persons with Disabilities Act of 2016. The legislation requires the State government to take suitable measures to provide facilities for persons with disabilities at bus stops, railway stations and airports and also access to all modes of transport by even retrofitting old modes of transport wherever it was technically feasible.

She said the GO for introducing only 10% of low floor buses and those with lift mechanism was also in violation of Articles 14 (equality before law) and 21 (right to life) of the Constitution. “The GO is an arbitrary exercise of power by the State. It is not only in complete violation of the rights of persons with disabilities but also contumacious, since it violates several judicial orders,” she said.

The petitioner had sought to restrain the state from acquiring any further bus unless it conforms to the requirements of the Rights of Persons with Disabilities Act, 2016 and the Rights of Persons with Disabilities Rules, 2017 and under the latter, Rule 15 in particular. Rule 15 mandates that every establishment complies with the specified standard as indicated in a notification issued by the Government of India on September 20, 2016.

Advocate General R Shunmugasundaram said the government was purchasing disabled-friendly buses in phases because the roads were in bad shape and they would damage the low-floored buses.

Advocate Rita Chandrasekar, representing Metropolitan Transport Corporation, said the low floor buses cost ₹58 lakh each as against ₹26 lakh for regular buses and hence there was a delay in purchasing such buses.

The state's submission that low-floor buses were expensive and would be damaged by bad roads was rejected. The state has been submitting excuses of certain practical difficulties, particularly in finding resources not only to acquire the more expensive buses but also to create the road infrastructure required for such sophisticated buses. It sought more time to indicate a roadmap.

Rejecting their submissions, the bench in its order said, "In view of the mandate of the statute, read with the Rules framed thereunder and the notification published in accordance therewith, there may be no room to manoeuvre and little scope for the court to delay the implementation of the policy as reflected in the statute and the laws made thereunder.

The court further said in its order, "the State seeks time to indicate a road-map. However, it is necessary that the State be restrained from acquiring any further bus for the public transport system which does not conform to the specifications indicated in the notification of September 20, 2016 referred to above. In other words, the State will not acquire any new bus for use thereof as part of the public transport system unless such bus meets the standards indicated in the notification of September 20, 2016".

Read the interim order dated 22 Jul 2021, embedded below:





Tuesday, July 13, 2021

Madras HC rejects the argument that victim’s evidence could not be relied upon since she was blind

Madras High Court, rejecting the argument of the petitioner that victim’s evidence could not be relied upon since she was blind, said, “The victim as a blind lacks vision, but her version had vision and hence, this court holds that the evidence of the victim is admissible in evidence.”

According to the prosecution, auto driver Anbu Selvan was hired to transport the victim to her music class. However, he kidnapped her to a secluded location and sexually harassed her besides trying to kill her if she did not cooperate.

Challenging a trial court order awarding a seven-year jail term to him, Anbu Selvan moved the high court. Justice R M T Teekka Raman, however, termed Anbu Selvan as a ‘heartless person’ who had capitalised on the helpless situation of the visually challenged person and sexually assaulted her.

He is not entitled to reduction of sentence, not even for a single day, the judge asserted. Citing circumstantial and other evidence, the judge said, “Merely because of the disability, evidence of disabled persons cannot be treated as inferior in nature.”

Anbu Selvan had also argued, “The identity of the accused was not proved in the manner known to law and since the witness (victim) is a blind, her evidence cannot be termed as eye witness if at all, can be termed only as a hearsay witness which is inadmissible in evidence.”

The trial court convicted him for offences under sections 366 (kidnapping a woman), 354 (Assault or criminal force to woman with intent to outrage her modesty), 506 (ii) (Criminal intimidation) of the IPC and Section 4 (harassment of woman) of the Tamil Nadu Prohibition of Woman Harassment Act primarily based on the evidence of the victim woman.

Merely because a victim of sexual harassment had visual disability, her evidence against the culprit cannot become inadmissible, said the court, awarding seven-year imprisonment to an autorickshaw driver who assaulted the woman. The court then recommended the Tamil Nadu State Legal Services Authority to grant Rs 1 lakh as compensation to the victim under the Tamil Nadu Victim Compensation Scheme.


Thursday, July 8, 2021

CAT Delhi | Akhand Pratap Singh Vs. GNCT of Delhi & Others. | OA No.243/2021 | 08 Jul 2021


Central Administrative Tribunal
Principal Bench, New Delhi
Akhand Pratap Singh vs Govt. Of Nctd on 8 July, 2021
Bench: L. Narasimha Reddy
OA No.243/2021
This the 8th day of July, 2021
(Through Video Conferencing)
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)

Akhand Pratap Singh, S/o Shri Balbir Singh, R/o Kh. No.13/10 and 13/1, H.No.13 UGF, Gali No.13, Bhagat Colony, West Sant Nagar, Burari, Delhi-110084. Aged about 38 years                                                     ... Applicant Versus 1. GNCT of Delhi Through Chief Secretary, 5th Floor, Delhi Sachivalaya, I.P.Estate, New Delhi. 2. Delhi Subordinate Services Selection Board, Through Chairman, F-18, Karkardooma Institutional Area, Delhi-110092. 3. South Delhi Municipal Corporation, Through its Commissioner, Dr. S.P.M. Civic Centre, Minto Road, New Delhi-110002. 4. North Delhi Municipal Corporation, Through its Commissioner, 4th floor, Dr. S.P.M. Civic Centre, Minto Road, New Delhi-110002.                                      ... Respondents
O R D E R (ORAL)

Justice L. Narasimha Reddy:

The Delhi Subordinate Services Selection Board (Board), respondent no.2 herein, issued a notification in the year 2013 for selection to six posts of Assistant Law Officer, (ALO) to be appointed in the Municipal Corporations of Delhi. One of the posts was reserved in favour of Physically Handicapped Category (PH). The applicant was one of the candidates under that category. A written test comprising of Tier-I and Tier-II was held and a short list of the candidates, who cleared the same, was published on 02.11.2017. The name of the applicant figured therein. However, in the final result published on 01.06.2018, the applicant was shown at SI. No.2 in the PH category, and one Mr. Neel Mani was at SI. No.1.

2. The applicant contends that Mr. Neel Mani did not join the post on account of the fact that he was selected in CBI. It is stated that the applicant submitted a representation on 15.04.2019 with a request to consider his case for appointment against the available vacancy. Correspondences were also ensued among the applicant, NDMC, SDMC and the Board, i.e. respondent no.2. The Board refused to accede to the request of the applicant as well as the Corporations, on the OA No.243/2021 Item No.29 ground that the vacancy lapsed on 31.05.2019 in terms of Clause 11 of the advertisement. It is in this background, that the applicant filed this OA with a prayer to direct the respondents to consider his case for appointment to the post of ALO, with Post Code No. 47/2013.

3. The applicant contends that he was placed at Sl. No.2 in the selection list and once the candidate at Sl. No.1 did not join, he is entitled to be considered. It is also stated that the selection process was spread over 6 to 7 years and when he is at the verge of selection, the respondents are trying to deny him the benefit of selection.

4. The respondents filed separate counter affidavits. The Board contends that the selection process is governed by the various conditions stipulated in the notification itself, and the waiting list prepared for this purpose has elapsed on expiry of one year. They contend that the very requisition for the dossier of the next candidate was received from the Municipal Corporation on 03.06.2019 and by that time, the waiting list has lapsed.

5. Respondents No.3 and 4 filed their separate counter affidavits which in a way support the plea of the applicant.

6. Today, we heard Mr. Ajesh Luthra, learned counsel for the applicant, Mr. Anuj Kr. Sharma, learned counsel for the 2nd respondent - DSSSB, Mr. R.K. Jain, learned counsel for 3rd respondent and Mr. D.S. Mahendru, learned counsel for the 4th respondent.

7. The issue is in a very narrow compass. The notification was issued in the year 2013, and the selection as such has taken place only in the year 2019. The applicant was a candidate under PH category and he was placed at SI. No.2 in the merit list. Since only one post was available, he was put in the waiting list. Clause 11 of the advertisement reads as under:-

"11. The DSSSB shall draw a reserve panel/waiting list upto the extent of 10% of the posts notified, in addition to the number of candidates selected as per the notified vacancies. The reserve panel/waiting list shall be valid for a period of one year from the date of declaration of result and the vacancies arising due to non-acceptance of the offer of appointment, not joining the post after acceptance of appointment, the candidate not found eligible for appointment or due to resignation of selected candidates, within one year of joining the post, shall be filled up from this reserve panel/waiting list."

From this, it is evident that the waiting list would be in operation for a period of one year. In the instant case, the developments took place almost as flash points. The selected candidate, namely Mr. Neel Mani was issued an offer of appointment sometime in January, 2019. The Corporation OA No.243/2021 Item No.29 went on writing to the selected candidate to report to duty. The final notice was issued on 27.05.2019 and he was informed that if he does not join within three days, his appointment shall be deemed to have been withdrawn. Immediately thereafter, the 4th respondent forwarded the dossier of Mr. Neel Mani to 3rd respondent, for onward transmission to the Board. The formal cancellation of the candidature was done only on 31.05.2019.

8. If one takes into account, the very objective underlying the preparation and maintenance of wait list, it is only to avoid the possibility of the post remaining vacant even after the selection process was concluded. The selecting agency has to make huge efforts to filter the candidates and then publish the select list. If for any reason, a selected candidates do not join, the looser will not be just the candidate or the selecting agency, but the user department, and thereby public at large. Once the selection process in this case was spread over seven years, counting of a day this way or that way should not make much difference, particularly when the applicant is a candidate with physical disability. We are of the view that the existing vacancy of the post of ALO reserved in favour of PH category can be offered to the applicant, who is next in the merit.

9. We, therefore, allow the OA and direct the respondents to consider the case of the applicant for appointment as ALO against the vacancy reserved in favour of PH category after due verification, by treating that the wait list was alive, when the requisition was received. On being appointed, the applicant shall hold the office prospectively, without any benefit anterior to the date of appointment. The exercise in this behalf shall be completed within a period of six weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

       (Aradhana Johri)                 (Justice L. Narasimha Reddy)
         Member (A)                                 Chairman

       Sunita/lg/pj
 

Monday, June 28, 2021

Supreme Court while upholding the Kerala HC judgement directed State of Kerala to provide reservation in promotion on all post after identifying said posts within 3 months.

Court: Supreme Court of India

Bench: Sanjay Kishan Kaul, J.

Case No. : Civil Appeal No. 59 of 2021

Case Title: The State of Kerala & Ors Vs.  Leesamma Joseph 

Date of Judgement: 28 June 2021

Brief:

This was an appeal against the order of the Kerala High Court on the issue of reservation in promotion of a disabled women employee who was appointed on compassionate grounds and not on disability quota hence was not extended the reservation in promotion for disabled. The matter was persued before the Administrative Tribunal which dismissed her case.  However, the High Court subsequently overturned the Tribinual's order and allowed her case against which the State went to Supreme Court.  

The Supreme Court praised the Order of the High Court as salutary and expressed that it did not call for any interference. 

Supreme Court said, "In fact, what seems to emerge is that the appellant-State has not implemented the judgment of this Court in Rajeev Kumar Gupta's and Siddaraju's cases(supra). Thus, we consider it appropriate to issue directions to the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. This exercise should be completed within a period of three months. We are making it time bound so that the mandate of the Act is not again frustrated by making Section 32 as an excuse for not having identified the post.

Read the Judgement below:-

Monday, April 5, 2021

USA: Justice Department moves unopposed motion to intervene as Plaintiff in a Disability Discrimination Suit Against City of Chicago Regarding Pedestrians with Vision Disabilities

Dear Colleagues,


This is a disability rights enforcement action by the Justice Department of United States of America against the City of Chicago, seeking to remedy the city’s failure to provide people who are blind, including those who are deaf-blind or have low vision, equal access to pedestrian safety information at intersection crossings, which the city provides almost exclusively through visual-only pedestrian signals.  The United States has sought declaratory, injunctive, and compensatory relief for this violation of Title II of the Americans with Disabilities Act of 1990. 


Having moved an unopposed motion to intervene as a plaintiff in this disability discrimination lawsuit filed by private plaintiffs American Council of the Blind of Metropolitan Chicago, Ann Brash, Maureen Heneghan and Ray Campbell against the City of Chicago under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), the Department of Justice found in its investigation that the allegations were true.


The complaint alleges that the city of Chicago fails to provide people who are blind, have low vision, or are deaf-blind with equal access to pedestrian signal information at intersections. Pedestrian signal information, such as a flashing “Walk/Don’t Walk” signal, indicates when it is safe to cross the street. 


Accessible pedestrian signals (APSs) are devices that provide pedestrians with safe-crossing information in a non-visual format, such as through audible tones, speech messages, and vibrotactile surfaces. Since at least 2006, Chicago has recognised the need to install APSs for pedestrians with visual disabilities. Yet, while Chicago currently provides sighted pedestrians visual crossing signals at nearly 2,700 intersections, it has installed APSs at only 15 of those intersections. 


Thus over 99% of Chicago’s signalised intersections subjects people who are blind, have low vision, or are deaf-blind to added risks and burdens not faced by sighted pedestrians, including fear of injury or death which in contravening the ADA and Section 504 that require that individuals with disabilities have equal access to public services, including access to pedestrian crossing information that is critical for safety and for full participation in community life.


Petition seeks to ensure that Chicagoans with disabilities are provided equal access to city services, particularly those services whose purpose is public safety.


The motion and complaint seeking intervention were jointly filed by the Disability Rights Section of the department’s Civil Rights Division and the U.S. Attorney’s Office for the Northern District of Illinois. Access the proposed motion to intervene at this link: https://www.ada.gov/acbmc/acbmc_motion.html.



Thursday, February 18, 2021

Calcutta High Court: Removal from Job solely on ground of disability is violative of RPWD Act 2016

Court:                   Calcuta High Court

Bench:                  Justice Ravi Krishan Kapur 

Case Title:           Dr. Shishir Kumar Biswas Vs. State of West Bengal & Ors.

Case No. :            W.P.A. 16042 of 2018

Date of Order:   18.02.2021

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Case brief:

Calcutta High Court has ruled that removing a disabled person from a job solely on the ground of his physical disability is a violation of the Rights of PwD (Persons with Disabilities) Act of 2016 and has set aside an order removing a blind Professor from the position of Head of the Bengali Department by the Haringhata Mahavidyalaya, primarily on the ground of his physical disability.

The petitioner, Dr. Shishir Kumar Biswas, a blind professor at Haringhata Mahavidyalaya was removed from the post of Head of Bengali Department due to his physical disability. The court observed that the act was a violation of three provisions of the Rights of PwD Act, particularly Section 20 of the  Act, which states that there cannot be any sort of discrimination against a person with any kind of disability in a matter that is related to his employment. The petitioner stated that the act of the concerned college was a clear violation of his constitutional rights and is not only illegal but also against the morals and principles of natural justice.

The court noted that the memo dated 31st July, 2017, whereby the petitioner was removed, is in direct violation and contravention of the provisions of the Rights of Persons With Disabilities Act, 2016.

"On a perusal of the impugned Memo it is evident that save and except physical disability on the ground of eye blindness, there is no other ground alleged in the impugned Memo whereby the petitioner has been removed as Departmental Head from the Department of Bengali in the concerned college.

I find that impugned Memo is also in direct violation and contravention of the 3 provisions of the Rights of Persons With Disabilities Act, 2016 and particularly violative of the provisions of Section 20 of the said Act," the Bench said.

Section 20 provides that no Government establishment shall discriminate against any person with disability in any matter relating to employment. Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

The court observed that there is nothing on record to support the impugned actions taken by the Managing Committee of the college. It thus set aside the impugned memo and directed the Respondent-authorities to take appropriate steps in accordance with law.

Read the embedded judgement below:


Thursday, February 4, 2021

Kerala HC- Double Bench dismissed the appeal against Single Bench order that directed the aided private educational institutes to implement reservation under Disabilities Act.

Court: Kerala High Court 

Bench: Mr. Justice A.M. Shaffique and Mr. Justice Gopinath P. 

Case No. : WA.No.1237 OF 2020 (against the Judgement in WP(C) 4753/2020(T) OF Hight Court of Kerala Dated 26/8/2020)   (Heard with WA.1238/2020, WA.1239/2020, WA.1242/2020, WA.131/2021)

Case Title (lead Case) : Secretary, NSS College Central Committee  Vs.  Renjith  J.V.

Date of Judgement: 04 Feb 2021

Brief:

Please refer to our earlier post titled Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities, dated 27 Aug 2022

The Respondent in the WP 4753 of 2020 had gone in appeal in the present case before the double bench, however the Bench dismissed the appeal finding no merits and that the contentions raised were similarly to many other cases already decided by the Supreme court of India.

The main contention urged on behalf of the Consortium of Catholic School Managements in Kerala was that Ext.P8 order cannot be enforced since no posts had been identified to be filled up in terms of Sections 32 and 33 of the 1995 Act and Sections 33 and 34 of the 2016 Act.

It was also contended that the posts which had been notified are relating to Government departments, Government schools and colleges and do not have any relation to the creation of posts with reference to aided schools and colleges. And, thefore, it was argued that unless the posts in such aided schools and colleges are notified in terms of the statutory provision, incorporating Exts. P3 to P7 Government Orders will not suffice.

The bench, however, did not find any of these arguments sustainable in light of catena of previoous judgements of the hon'ble Supreme Court, particularly, Justice Sunanda Bhandare Foundation v. Union of India [(2014) 14 SCC 383)]Government of India through Secretary and Another v. Ravi Prakash Gupta [(2010) 7 SCC 626], Rajeev Kumar Gupta v. Union of India and Others [(2016) 13 SCC 153]Indra Sawhney v. Union of India [1992Suppl (3) SCC 217], and therefore, dismissed the appeal.  

Read the detailed Judgement below: