Friday, September 16, 2022

On Kerala SCPD's directions, Kerala University decides to permit 100% visually impaired to pursue Science Course

The Academic Council of Kerala University on 16 Sep 2022 has taken a decision to permit 100% visually impaired student to pursue BSc Physics course after an applicant, who had scored 100% marks in the higher secondary examination, was unable to submit her online application for admission and she had to subsequently petition the State Commissioner for Persons with Disabilities. The SCPD issued an order under provisions of the Rights of Persons with Disabilities Act, 2016 directing the Kerala University to do the needful. 

Before the current decision of the academic council, the undergraduate (UG) prospectus of the university has thus far permitted admissions for only visually impaired candidates with less than 40% disability to Science subjects which is contrary to the provisions of the RPWD Act. 

The council factored in various impediments during the discussion, including the low availability of Physics texts in Braille and prominence of practical work in Science subjects. It was decided to extend assistance, including the provision of scribes for regular practical work and examination in laboratories. The number of experiments will also be reduced to one-third of the total that must be completed by a regular student.

It is hoped that this decision will enable more disabled aspirants to pursue higher education, particularly in Science and Mathematics in Kerala University. More Higher Education Institutes need to change their admission norms not to restrict students from admitting in the courses on the basis of their disability. On the contrary, the HEIs should focus on providing reasonable accommodations to applicants and creating a mechanism for such aspiring students to approach the HEI seeking such accommodations. 

The HEIs have to be cautious that they do not lower the course contents but enhance the support systems and better assistive technology solutions. This would be in line with the Accessibility Guidelines and Standards for Higher Education Institutions and Universities June 2022 issued by the University Grants Commission, Ministry of Education, Govt. of India under the Rights of Persons with Disabilities Act 2016.

Related Source: The Hindu

Delhi HC asks Indian Railways to ensure Free of Charge Human Assistance and Wheelchairs for Travelers with Disabilities on the lines of Delhi Metro

Court: Delhi High Court

Bench:  Hon'ble Satish Chandra Sharma, CJ and  Hon'ble Subramonium Prasad, J. 

Case No. : W.P.(C) 5666/2017

Case Title: Court on its Own Motion Vs. Union of India & Ors 

Date of Order: 16.09.2022

Brief.

The Delhi High Court has asked the Indian Railways to make all possible endeavours to ensure free of charge human assistance and wheelchair are provided to people with disabilitis at its stations on the lines of Delhi Metro. 

"The respondent shall also make all possible endeavours to ensure that free of charge human assistance and wheelchair is provided to differently abled persons", said the bench.

The bench headed by Chief Justice Satish Chandra Sharma sought a fresh status report from the authorities with regard to an earlier order on reserving some lower berths for persons with disabilities as well as giving free assistance to them, and said such facilities should at least be provided at the busy stations.

Noting that these facilities are being provided by the Delhi Metro as well, the court added the state-run transport behemoth shall certainly make all endeavours to make these available at maximum number of railway stations. It is not a big deal, at least in busy railway stations. At least in the four metros and class A cities it can be provided, the court said.

The order was passed on a PIL initiated by the high court onits own motion in July 2017 after after coming across a news report that the door of a special compartment for the disabled in the Gorakhdham Express was shut, with the result that the visually-impaired man missed his M.Phil entrance exam as he could not board a reserved compartment since it was locked from inside. 

Senior advocate S K Rungta, who has been appearing as amicus curiae (friend of the court) in the matter, told the bench that at this stage not much was required by way of attachment of coaches and reservation of seats for the differently abled but providing free escort and wheelchair was still an issue.

Mincing no words, the court had said it was shocked over complete apathy of the Railways in treating its physically challenged passengers by placing the compartments for the disabled at end of the trains and providing little or no help for access. The court had also said it will explore the possibility of compensation for the youth "who has undergone so much trauma for the callous disregard of his rights."

The matter has been adjourned to 07 December 2022.

Read the Order embeded below:-


Wednesday, September 14, 2022

Punjab and Haryana HC- Insulting a spouse for his physical disability amounts to mental cruelty for the purpose of seeking divorce

Court:  Punjab and Haryana high court at Chandigarh

Bench:  Justice Ritu Bahri and Justice Nidhi Gupta

Case No(s): FAO-M-190 of 2010 (O&M) and FAO No. 3554 of 2016

Case Title: Karamjit Singh Vs. Davinder Kaur

Date of Judgement:  13 September 2022

Act /Law: Matrimonial Dispute/ Divorce matter under section 10,11,12,13,13A & 13B OF Hindu Marriage Act

Brief Synopsis

Mocking and insulting spouse for disability amounts to mental cruelty and the affected party can be granted divorce on this ground, as per the recentl judgement of Punjab and Haryana High Court at Chandigarh.

The high court passed the order while allowing an appeal filed by a man whose wife tauntingly called him, a “lula-langra” (a derogatory term used for a physically-challenged person) in front of his family and friends.“There is sufficient evidence on record in form of the above-mentioned testimonies where it is established that the respondent ill-treated the appellant for his handicap. 

"Taunting a person for his handicap constitutes the most inhumane kind of cruelty ,” the bench held,  while allowing an appeal filed by a man from Punjab's Hoshiarpur district against the order dated April 21, 2010, passed by the Hoshiarpur family court, whereby his petition seeking divorce from his wife was dismissed.

The couple was married in March 2004 at Nakodar as per Sikh rites and they had one son later. The appellant husband was disabled as a result of polio during childhood. After around 8-10 days of marriage, his wife started insulting him, mocking him publicly for his physical disability, and tauntingly called him 'lula-langra' in front of his family and friends. She even used to snatch his crutches and physically throw him on the ground in the presence of his friends and relatives. 

As such, the appellant was undergoing tremendous mental agony and trauma, as well as physical abuse. In September 2004, she left the appellant's company and started living with her family. Even their son was born at his in-laws' house. According to the appellant, he tried his best to bring her back, but she never returned. Finally, in 2008, he filed a divorce petition before the family court, which was dismissed. 

In his appeal against the family court's decision, the appellant-husband argued that the lower court had committed a grave error in overlooking the testimonies of these above said witnesses wherein each of them categorically deposed that the respondent used to insult him in their presence and use derogatory words and taunts against him, as well as physically manhandled him and made him a laughing stock due to his physical disability which resulted in mental cruelty to him. The appellant's wife, however, denied all the allegations.

After hearing all the parties the bench observed that it is not in dispute that the parties have been living separately since 2005. Thus, it is a dead marriage for all intents and purposes. Admittedly, all mediation attempts between the parties have failed. Therefore, this marriage is a mere legal fiction surviving only on paper.

The bench also observed that the family court order is silent over the fact that the wife had not just taunted the appellant for his physical handicap, but also pushed him around and threw him on the ground by pulling away his crutches.

"Accordingly, the findings of the Hoshiarpur court in this regard are held to be erroneous and contrary to the evidence on record, and are as such, reversed," observed the HC while granting divorce. The bench, however, has ordered the man to pay an amount of Rs 25 lakh to his wife as a full and final settlement for her and their son's maintenance.

Read the embedded order below:

Andhra Pradesh HC- Disability acquired during employment makes employee entitled to continued alternate employment; Also entitled to backwages & arrears for interregnum period as Corportation failed to dischare its statutory duty

Court: Andhra Pradesh High Court, India

Bench: Hon'ble Sri Justice Ravi Nath Tilhari

Case Number: Writ Petition No. 5486 of 2011

Case TitleSri Ch.S. Rajeswara Rao Vs. Govt., of A.P. rep. by Principal Secretary, Transports Department and others.

Date of Judgement: 14 September 2022

Judgements cited/reffered: 

(a) Bhagwan Dass and another vs. Punjab State Electricity Board [2008(1) SCC (L&S) 242]

(b) K. Moses vs. A.P.S.R.T.C [W.P.No.3031 of 2008 decided on 01.11.2010]

(c) Laxmi Kant Sharma vs. State of U.P and 5 others.  [2018 LawSuit (All) 1355]

(d) Andhra Pradesh State Road Transport Corporation rep., by its Managing Director and others vs. B.S. Reddy

(e) Kunal Singh Vs. Union of India (SC judgement 13 Feb 2003 in Appeal (civil) 1789 of 2000)

Brief

The petitioner was working as a Conductor in the Corporation. He was appointed as a casual labour in April, 1984 and his services were regularized in the year 1987. While he was on duty, he met in an accident and undergone a surgery of spinal cord in which his two discs were removed. On the ground of medical unfitness he was retired from the service on 21.07.2001. 

Challenging the order dated 21.07.2001 the petitioner filed Case No.165 of 2005 before the State Commmissioner for Persons with Disabilities. The Commissioner vide order dated 25.09.2006 allowed the said case, setting aside the impugned proceedings dated 21.07.2001 and directed the Corporation to consider the petitioner’s claim de-novo in the light of Section 47 of the Act, 1995. The petitioner was, therefore continued as conductor and his services were utilized at Bus Pass Station, Governorpet-I Depot vide orders dated 15.02.2007 and 21.02.2007. 

The present dispute is for payment of salary from 21.07.2001 upto 21.02.2007 during which period the petitioner remained out of service on account of his retirement imposed by the Corporation on the ground of medical unfitness. 

The petitioner submitted that in view of the statutory provisions of Section 47 of the Act, 1995, the petitioner ought to have been offered alternative employment to some other post with the same pay scale and service benefits. The petitioner is entitled to receive the salary for the interregnum period.

The Bench highlighting the benevolent provisons of section 47 said, "Section 47(1) is clear in terms that "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service. The proviso to Section 47(1) in fact confers a right on an employee, who acquired disability and was declared unsuitable for the post he was holding, for being shifted to some other post with the same pay scale and service benefits. By that proviso, not only the alternate employment but also the pay scale and the service benefits are also protected."

The bench further said, "so far as the payment of arrears of salary for the period in question is concerned, the petitioner was not at fault for not discharging the duties during the interregnum period for which the corporation was responsible as it failed to discharge its statutory duty. The petitioner cannot be deprived of the salary for the period claimed and cannot be made to suffer for the fault of the corporation. Under the Act, it was the statutory duty of the Corporation not to throw the petitioner out of service but to provide the alternative employment to some other post with the same pay scale and service benefits and if there was no such post available the supernumerary posts should have been created.

Citing the case of State of U.P Vs. Dayand Chakravary and others [(2013) 7 SCC 595], the Hon’ble Apex Court held that the principle of ‘no work no pay’ shall not be applicable to such employee who is prevented by the employer from performing his duties as the employee cannot be blamed for having not worked.

Allowing the writ petition, the bench directed the respondent Corporation to pay full salary to the petitioner for the period w.e.f  21.01.2001 upto 21.02.2007 after calculating the same as per the pay scale applicable to the post of Conductor for the relevant period. It further directed that the arrears shall be paid within a period of two months from the date of production of copy of this judgment before the respondent-Corporation along with simple interest thereon @ 6% p.a w.e.f 21.02.2007 upto the date of payment. If consequent upon the addition of the increments as aforesaid for the aforesaid period, some more arrears of salary become due to the petitioner for subsequent period also i.e after 21.02.2007, the same shall also be paid to the petitioner after adjusting the amount of salary paid to the petitioner, within the same period as aforesaid.

Read the judgement embedded below:

Delhi HC clears the way for a disabled doctor to appear in the PG medical counselling

Court: Delhi High Court

Bench: Mr. Justice Sanjeev Narula

Case No.:    W.P.(C) 12653/2022

Case Title:  Laxmi Vs. Union of India & Ors

Date of Order: 14.09.2022

Next Date of Hearing: 22 Nov 2022

Case Brief:

Ms. Laxmi, a disabled MBBS student who was declared ineligible to pursue a course at the postgraduate level has been given the clearance by Delhi High Court to appear in the PG medical counselling.

The petitioner, who completed her MBBS course from Baba Raghav Das Medical College, Gorakhpur has polio in her lower left limb.  But, the Safdarjung Hospital declared her 100% disabled and rejected her to get a clearance certificate. For NEET PG counselling after completion of MBBS, PwD students need a certificate from one of the specific centres.

Laxmi went to the Centre Govt-run Safdarjung Hospital onAugust 24, 2022 to appear for the disability test. She uses an orthotic caliper, owing the polio. However,  the examiners asked her to remove it and walk, which she couldn't do. thus she was declared 100% disabled. As per the existing rule, a PwD candidate with 40-80% disability is allowed for PG courses.

She thus filed a petition in the Delhi High Court. The single bench presided  by Hon'ble justice Sanjeev Narula,  directed AIIMS to constitute a board of experts to assess the disability of the MBBS doctor. A team of three doctors was constituted to examine her who opined as under:

"Candidate Ms. Laxmi was assessed without and with lower limb orthosis. She was found to have improved ambulation and stability with Knee Ankle Foot Orthosis (KAFO) with compensation for shortening in left lower limb. With orthosis the disability becomes less than 80% (Eighty Percent). She would be able to perform the functions expected from a post graduate specialist doctor with use of an appropriate and well fitting orthosis."

Similar ableism was on display in a recent case decided by the Allhabad HC, where a candidate who used tri-cycle was forced to ride a bicycle which was the essential qualification for the post. The candidate had expressed that he could ride a tricycle with equal efficiency as a cycle, however, the albleist Principal did not even consider his candidature. Though no major relief came his way due to a prolonged litigation and lapsed time, the court however, decided that it was clearly a case of violation of human dignity and awarded a compensation of Rs. 5 lakh to the affected petitioner.

In the instant case, since some of the reliefs sought in the petition survived and required consideration, the court isssued notices to respondents with next date of hearing as 22 Nov 2022. The matter was successfully argued by Adv Gaurav Bansal, for the petitioner.

Earlier the Doctors with Disabilities : Agents of Change, a group of Indians Health Professionals with Disabilities shared on its facebook group  on 03 Sep 2022 the detailed timeline of challenges faced by Dr. Laxmi due to #AbleismInMedEd and revelations from the responses to the RTI filed by Dr. Satendra Singh, a doctor with disabilities himself at link here reproduced below: 

"An MBBS lady doctor with 45% disability in the left lower limb according to Govt of India's UDID (and another disability certificate from prestigious KGMU) was declared 100% disabled by Safdarjung Hospital's medical board for NEET PG headed by Dr Suman Badhal (Prof PMR), Dr Ajay Gupta (Prof PMR), Dr Arun Kumar Pandey (Astt Prof, Ortho) and thus crushed her dream to do specialization. There may be some doubt about assigning a percentage between 40-50 or 30-40, but declaring someone 100% disabled with only polio in one leg is unjustified. 

The VMMC & Safdarjung Hospital medical boards have been dubbed "harassment centres" by candidates with disabilities, and there is evidence that this hospital is fond of declaring candidates "100% disabled". It is highly unlikely to get a 100% disability certificate until and unless both limbs are involved.

2020: A candidate from Meerut with a 50% disability because of polio (no braces) was declared 100% by this board & denied admission. Poor person could not file case.

2019: A candidate from Bijnor with same 50% disability because of polio was also declared 100% & rejected. He studied again, cleared NEET UG, went to a different centre & now doing MBBS third year.

2019: A MBBS doc on crutches (50% disability) working as a JR in the PMR Dept of RML Hospital was declared ineligible in NEET PG after declaring > 90% at Safdarjung. He is now doing MD Dermatology in Rajasthan.

2019: Another lady doctor with MBBS was denied admission. "I did everything they asked for, including sitting on the floor and crossing my legs, despite delivering a baby two weeks ago". Dejected, she went to another centre, got admission and finished MD Pediatrics successfully last week and awarded by State Govt.

Let's see the competence of these "experts". Dr Satendra Singh filed an RTI asking what guidelines they follow. My RTI Question No. 7: Kindly provide the details of all the tests done by doctors to assess NEET candidates with locomotor disabilities. Which guidelines are followed by them? Please provide a copy of that as well. The response by PMR Faculty as CPIO: "Please refer to standard text books of Medicine on guidelines." The gazette guidelines on assessment exist but Prof Gupta follows some ‘textbook of medicine’ and he is a constant in all of these rejections. Moreover, this competent board is not even aware of how to issue this certificate. After Dr Satendra Singh's PIL, the National Medical Commission issued an addendum that those with more than 80% disability may be considered eligible on functional competency with the help of assistive devices. There is no mention of that in the issued certificate. This premier hospital does not even have an Equal Opportunity Policy mandated under the law (See RTI response).

For how long will such unprofessional and unethical practices go unchallenged? The Delhi High Court has already issued directions for re-assessment at AIIMS, Delhi for this woman doctor, but what about many others who have been constantly rejected without rationale after successfully doing MBBS and who can not afford to go to court? The objective of these screening centers should be to assist candidates with disabilities and provide reasonable accommodations, as being done by the General Medical Council of the UK. However, they choose to harass their own fellow doctors."

Read the order embedded below:

Thursday, September 8, 2022

Allahabad HC stays the recruitments to Teaching Posts in Dr. Shakuntala Mishra National Rehabilitation University for non compliance to reservation provisons of RPWD Act

Court : Allahabad High Court, Lucknow Bench, UP, India

Bench: Hon'ble Devendra Kumar Upadhyaya, J. & Hon'ble Shi Prakash Singh, J.

Case No. :  WPIL (L) No. 185 of 2022 (Public Interest Litigation)

Case Title: All India Confederation Of The Blind Delhi & Another  Versus   - State Of U.P. Thru Its Addl. Chief Secy. Divyangjan Sashaktikaran Vibhag, Lko And Dr. Shakuntala Mishra National Rehabilitation University 

Date of Order: 08 Sep 2022

Next Date of Hearing: 09 Nov 2022.

Brief Case:

The rights of Persons with Disabilities often fall in to the cracks that exist between words and deeds in policies and actions of various statutory bodies. A recent case in point is Dr. Shakuntala Mishra National Rehabilitation University in Lucknow, U.P. which according to its own website is "The first University of its kind, which also provides accessible and quality higher education to challenged students, in a completely barrier-free environment."

However, early during this year it was observed by the petitioner organisation All India Confederation of the Blind that the noble statements  of the university were mere words as in its advertisement for 107 vacancies, not a single vacancy was reserved for Persons with Disabilities and not just that- the University even one appointment against the teaching posts. This is in a University which has its mandate to primarily "serve the differently-abled segment". 

The petitioners alleged that the university issued advertisements in 2020- 2021 for appointment on 16 posts of professor, 27 of associate professor and 64 of assistant professor in various subjects which summed up to 107 vacancies wherein but it failed to reserve four per cent vacancies for persons with benchmark disabilities of which 1% vacancies were not reserved for blind persons.

After several hearings, finally on 8th September, 2022, the Lucknow bench of Allahabad High Court expressed serious concern over Dr Shakuntala Mishra National Rehabilitation University's failure to provide adequate quota to the disabled with regard to about 107 teaching posts advertised in 2020- 2021 . The university has assured the bench that till the entire matter was revisited and final decision was taken in respect of reservation of vacancies in terms of the provisions contained in Rights of Persons with Disabilities Act, 2016 and the relevant government orders, no selection pursuant to the advertisement in question would take place. 

At this, the bench said, "We expect and hope that the university authorities shall pay attention and consider the entire matter not only in terms of the legal provisions, but by observing some empathy for the reason that the university itself has been created and formed for larger benefits of differently abled persons." 

A bench of Justice DK Upadhyay and Justice Shree Prakash Singh passed the order on a PIL moved by All India Confederation of the Blind, Delhi through its secretary Gauri Sen and National Association of Visually Handicap. The bench on a previous hearing had expressed concern that no reservation was provided against the advertised posts though the university was primarily established for benefit and rehabilitation of differently abled persons

The bench also said that an appointment made by the university for the post of professor in Hindi department would be subject to final decision of the instant petition. The bench also directed the registrar of the university to have an audience of the petitioner's counsel and an intervener on the issue.

Matter is now listed on 09 Nov 2022. 

Read the Order dated 08 Sep 2022 embedded below:


Tuesday, September 6, 2022

Allahabad HC directs compensation of Rs. 5 lakhs for violation of human dignity of a person with disability during recruitment exercise

Court: Allahabd High Court, UP, India 

Bench: Hon'ble Saumitra Dayal Singh,J.

Case No. : Writ - A No. - 18302 of 2021

Case title - Pradeep Kumar Gupta v. State Of U.P. Through Secretary ( Higher Education) And 4 Others 

Date of Order: 31.08.2022

Case Brief 

The petitioner who is 56-year-old and a person with disability having 50% locomotor disability, had applied for the post of a Library Peon at a Government Degree College in Saharanpur. The essential qualifications for the said post prescribed were Class V pass and ability to ride cycle. 

He was called for an interview, however, in the interview, the petitioner was not evaluated and he was purportedly asked to leave as he could not ride a bicycle. The principal forced the petitioner to ride a bicycle though he expressed he could ride a tricycle with equal efficiency. Subsequently, a higher educational qualification (for the post of Library Peon) of High School was insisted and since the petitioner did not hold that qualification, he was excluded. 

The petitioner thus moved to the High Court claiming the violation of his rights and alleging humiliation caused to him, mainly by the then Principal of the Government Degree College, who interviewed him. He also alleged hostile discrimination having been practised by the State respondents and a complete violation of his special rights under the Rights of Persons with Disabilities Act, 1995. 

He also argued that only to deprive him of an opportunity of employment, the selection process was stalled and higher educational qualification (than that possessed by the petitioner), was pressed so that the petitioner could be excluded from the zone of consideration. 

The petitioner also had escalated the issue and lodged complaints, as a result, the Regional Employment Exchange (Divyangjan), Meerut Division instituted an enquiry into the allegations levelled by the petitioner. It submitted report dated 23.11.2007 confirming the allegations as true.

Thereafter the court/office of State Commissioner (Divyangjan), exercising powers vested under Section 82 of the Old Act directed the District Magistrate, Saharanpur and the Additional Commissioner (Divyangjan), Saharanpur, to institute a magisterial enquiry into the complaint made by the petitioner. Admittedly, the magisterial enquiry was conducted and its report submitted on 09.09.2019. In that, the Magistrate found the fact allegation made by the petitioner to be correct.

Also, upon receipt of direction issued by the court/office of State Commissioner (Divyangjan) dated 23.05.2019, the District Magistrate, Saharanpur, acting as the Additional Commissioner (Divyangjan), Saharanpur, made his own enquiry and passed an order dated 30.11.2019, confirming the allegations of the petitioner as true and recommending action agaisnt respondents.

At that stage and in view of the order dated 30.11.2019 passed by District Magistrate, Saharanpur, the petitioner withdrew his earlier writ petition No. 17917 of 2007, in belief of appointment thus assured to him.

However, the above order was assailed by the then Principal of the Government Degree College, Deoband, Saharanpur, in Writ – A No. 1975 of 2020 (Ashok Kumar Sharma Vs. State of U.P. & 3 Ors.). It transpires, in the course of those proceedings, office of the District Magistrate/Additional Commissioner (Divyangjan), Saharanpur, vide further order dated 17.02.2020 withdrew in entirety its earlier order dated 30.11.2019.

Thus the petitioner again approached this court with the present petiton at a delayed stage.

Court Order

The Court, affirming the importance of human dignity, the granted a sum of Rs. 5 Lakh as compensation to the petitioner. While partly alowing the petition of the petitioner Pradeep Kumar Gupta, the court remarked, "The amount of compensation has been awarded to let the petitioner know, the State may take time to hear & understand its citizen and his plight but, it is neither deaf nor heartless as may ever remain indifferent, forcing him to drag his feet, almost literally, to this Court to seek justice. The citizen works at the heart of the giant being the State is. Unless the heart beats freely, the being cannot thrive." 

The Court expressed that the state was liable to compensate its 'special citizen' whose dignity was violated as he was humiliated at the instance of the State authorities, for no fault of his. The Court also emphasized that the State and its functionaries had failed to protect him, and the act of humiliation was against the mandate of the Constitution. 

"...the State and its functionaries have not only failed a special citizen but also violated his fundamental right to life and liberty - for what worth is human existence if it is denuded of dignity and respect deserving its cherished existence. Deprived of dignity, liberty is a sea-shell washed to the shore, dead and of ornate value for others but worthless to the being that used to live within it," the Court further observed.

The Court also added that the respondents are generally at fault in not providing for identification and reservation of adequate posts for persons with a locomotor disability at Government Degree College at Deoband, Saharanpur.  The Court called it "most disturbing" that instead of apprising him of the fact regarding non-availability of reservation, he was unfairly asked to ride a bicycle which he obviously could not. 

In any case, the Court opined, in absence of a specification of 'bicycle' in the advertisement, the petitioner should have been allowed to ride a 'tricycle' which also qualifies as a cycle. In other words, the Court clarified, that if otherwise eligible, the petitioner should have been allowed to compete as a General Category candidate. 

The court directed the State  to pay the petitioner, a lump-sum compensation assessed at Rs. 5,00,000/-  directly into his Savings Bank Account within a period of three months.

Read the order embedded below: 


Friday, August 26, 2022

Madras HC dismissed the plea of TN Govt. seeking clarification of the order that directed them to purchase only accessible low floor buses.

Court:             Madras High Court, India

Case Title:     The Metropolitan Transport Corporation (Chennai) Ltd. Vs. Vaishnavi Jayakumar & Ors.

Case No. :      WMP/83132/2022 in WP/5957/2021

Filed on :        03-08-2022  

Reiterating its earlier order, the Madras High Court refused to alter or clarify its earlier order dated 05 Jul 2022 on allowing only low floor disabled friendly buses in the state.  The earlier order had directed the state transport corporations to procure 2,213 buses in strict compliance with the rules and regulations of Rights of Persons with Disabilities (PWD) Act and that cannot be altered, said the  the first bench of Chief Justice Munishwar Nath Bhandari and Justice N Mala.

“The order was passed as per the directions of the Supreme Court. If you (the corporation) want to alter it you have to approach the Supreme Court,”

While passing the last order, the the bench had lifted the ban on procuring new public transport buses on condition that the corporation shall comply with the rules and regulations of the RPWD Act. Subsequently, alleging that the condition to comply with the rules caused an impediment, the corporation moved a memo to clarify the order.

The corporation sought to submit that operating the low-floor disabled-friendly buses was difficult, as it caused damage to buses. But the court refused to accept the contention, and thus the plea was permitted to be withdrwan and thus the Court dismissed the same as withdrawn. 

The attempt of the corporation only shows that instead of addressing the accessibility of roads and buses, it sought to find ways not to implemnet the law of the land citing frivolous excuses for a long time. In earlier matters filed before the Madras HC, the court had clearly said that while it accepted that it may be difficult and costly to make the existing buses accessible, henceeforth all new buses purchased to replenish the public trdansport fleet must be accessible complying with the law and the State happily agreed to it. However, it started putting forth flimsy excuses and did not take any action on improving the road infrastructure, bus boarding platforms and road conditions etc.

Here is the copy of the Affidavit on behalf of Metropolitan Transport Corporation (Chennai) Ltd. embedded below:

Wednesday, August 24, 2022

MoRTH directed by CCPD Court to remove bottlenecks in verifying vehicle ownership type by NHAI for issuing Exempted Fastag to Persons with Disabilities.

Court:                 Chief Commissioner for Persons with Disabilities

Presided By:     Ms. Upma Srivastava, Commissioner

Case No.:            13203/1092/2022

Case Title:          Githin Madhu Vs. The Chairman, NHAI & Anr.

Date of Order:   24.08.2022

Case in Brief:

In the instant case,  Mr. Githin Madhu- a person with vision impairment had applied online along with all the requisite documents for Exempted FASTag for his vehicle on the website https://exemptedfastag.nhai.org/Exemptedfastag/, the official website of National Highways Authority of India (NHAI). The regional office of NHAI in Kerala, however, rejected his application. 

When the complainant contacted the regional office on phone, he was told to him that NHAI doesn't have facility to verify the data base of RC issued by the Motor Vehicles department (parivahan database) to check the ownership as divyangjan online. Also the  physcial copy of the Vehicle RC (Registration Certificate) do not carry the information about ownership type.

The Court felt that this was precisely due to mismanagement and  lack of coordination between the NHAI and the Ministry of Road Transport, Govt. of India which made persons with disabilities to run from one office to the other merely to prove their ownership type of vehicle as Divyangjan and in turn were facing harassment in getting the benefit granted to them by Govt. of India. 

The exempted FASTag is provided to persons with disabilites in two cases:

(a) The vehicle is registered as Ownership type as "Divyangjan".

(b) The vehicle is designed, constructed or  adapted for the use of persons with disabilities (divyangjan)

During the course of hearing, the Exempted FASTag was provided to the complainant and the complainant informed that his grienvance is settled.  However, the court felt that the issue that still persist is related to trouble that persons with disabilities have to face in order to obtain exempted category FASTag.  It was also shared that while vehicle designed  or constructed for use by persons wiht disabiliteis are registered in RC as "Adapted Vehicles"  (formerly Invalid Carriages), however, for vehicle registered under ownership as Divyangjan this status was not mentioned in the RC. Thus the officials of NHAI were not able to verify the ownership status  from the RCs of the vehicle and they did not have access to the parivahan data base to very the same, resulting in rejection of the applications made by such candidates with disabilities.

Considering the facts and for making the system more accesssible for persons with disabilities, the court thus passed an order endorsing a copy to the Ministry of Road Transport and Highways,  to grant access to the online portal  www.vahan.parivahan.gov.in to NHAI so that the Ownership Type status of Divyanjan  could be verified online for the purpose of issuing FASTags to persons with disabilities and they are not made to run from one office to the other to prove their vehicle ownership type.  

Court has sought an Compliance Report from the Ministry of Transport & Highways within 3 months of the passing of the order.

Read the order embedded below:

Court of CCPD directs Practo Technologies to make its website & App fully accessible for persons with disabilities within 6 months, also holds that Min. of Health is the domain regulator

Court:               Chief Commissioner for Persons with Disabilities, India

Presided by:     Ms. Upma Srivastava, Commissioner 

Case No.:         13205/1102/2022

Case Title:        Rahul Bajaj Vs. Practo Technologies Pvt. Ltd. [PTPL] & Others.

Date of Order:  24 August 2022

Next Date of Hearing cum Compliance:  20 September 2022

Subject: Inaccessibility of Website, Mobile and Tablet and non-compliance with the standards of accessibility as prescribed under rules.

Brief: 

The Court of Chief Commissioner for Persons with Disabilities in this important order stressed that the  private establishments are also bound by the provisions of the Rights of Persons with Disabilities (RPwD Act) 2016. 

The  Court of CCPD was hearing a complaint filed by a lawyer with 100% visual impairment, Rahul Bajaj, on March 22, 2022 regarding the website and app being inaccessible and not in compliance with accessibility standards. The complainant  had submitted that the home screen of the app was unorganised and inaccessible with screen reading software, some buttons were not labelled and others had “nonsensical labels” like “tertiary half one image label”. Complainant also said Practo was not in compliance with Section 46 of the Rights of Persons with Disabilities (PwD) Act, 2016, which sets a two-year timeline for service providers “whether government or private” to provide services in accordance with Central government accessibility rules.

The CCPD Court  ordered Practo, the online healthcare service provider, to make its website and app fully accessible for the disabled, affirming that legal requirements and guidelines on accessibility applied to private companies and establishments as well.

The Court recommmended that Respondent No. 1, i.e. Practo Technologies Pvt. Ltd. shall comply with the government guidelines and shall make necessary modifications within 6 months and not later than 9 months from receiving the copy of this Recommendation Order, to its app and other Information & Communication Technology platforms to make such platforms accessible for divyangjan.

Practo   Practo  in its reply had denied the allegations and submitted that it was not bound by the guidelines that require establishments to provide accessible services, however, it expressed willingness to make its platform accessible for persons with disabilities and sought nine months to make the changes as it involved “severe engineering efforts”.

Referring to Section 46, the court said: “Mere reading of this Section leaves no doubt that the provision is applicable on private establishments as well.” The court also said that Rule 15 of the Rights of Persons with Disabilities Rules, 2017 made standards for physical environment, transport and ICT mandatory for every establishment.

Court of CCPD also recommended that the Director-General of Health Services under the Health Ministry should ensure that Practo was accessible for Persons with Disabilities being the domain regulator under the law. 

The court has fixed the next hearing for compliance and to monitor the implementation of the statutes related to accessibility as 20 Sep 2022, considering the wider social aspect of the issue of accessibility. 

Read the order embedded below:

Monday, August 22, 2022

Delhi HC orders appointment of a Person with Visual Disability to IAS with consequential seniority; Sets aside Appellate Medical Board Report as being inconclusive!

Court:         Delhi High Court

Bench:         Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela

Case No.:     WP(C) 572 of 2020

Case Title:   Vishv Mohan V. DoPT & Others

Date of Judgement: 22.08.2022

Brief:

While ordering Mr. Vishv Mohan, a candidate with visual impairment  of 2015 batch, to be appointed to the Indian Administrative Service (IAS), the Delhi High Court observed that a welfare State is expected to create conditions which are conducive to citizens with disabilities by providing them avenues for public employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The  State is enjoined to create conditions and opportunities for the welfare and betterment of the citizens with disabilities and those who are differently abled.

 "The Central Government had enacted the said Act to ensure that the citizens falling in this category are not deprived of their rightful means of livelihood in respect of public employment. It is with a view to give impetus to the beneficial provisions of the said Act, that the Central Government and the State Governments created various avenues for public employment of such differently abled citizens." said the Court.

The Court dealt with a plea filed by a candidate with visual  disability for recruitment of All India Service for the year 2015.  The petitioner had challenged the report of the Appellate Medical Board of Dr. Ram Manohar Lohia Hospital, conducted in compliance of High Court's order whereby the Medical Board consisting of three senior doctors had concluded that the Petitioner was having visual disability of 20% only. Whereas several other competent medical boards and one medical board of AIIMS Delhi had also ceritified him in the past with more than 60% visual disability. 

The Court expressed its astonishment as to how the AIIMS Delhi could assess them 20% disability and 60-75% disability in two different sittings.

While there was no dispute about the fact that the Petitioner suffered from visual impairment namely 'high myopia with Isometropic Amblyopia', the Court dealt with the issue as to whether the Petitioner was suffering from a visual impairment which would be greater than 40%. Having 40% visual impairment would entitle the petitioner to be treated as a visually disabled category candidate.

It was the Petitioner's case that he was a meritorious candidate who had secured a total of 828 marks in the examination of the Civil Services Examination 2014 with All India Rank of 1173 and 5th rank holder in the disabled category.

Perusing the consistent medical reports of past several years wherein his disability ws assessed higher than 60% by competent medical boards in the disability certificates issued to the petitioner, the Court was of the view that the Petitioner fell within the definition as contained in sec. 2(b)(ii) of the PWD Act.

The Court was of the opinion that the Petitioner was not only a person with visual impairment to the extent of 60% but also a "brilliant candidate" who had secured 5th rank in his own category and was also positioned at All India Rank No.1173.

"In such circumstances, depriving the Petitioner of public employment, that too, at the level of Indian Administrative Services, on such inconclusive medical report dated 17.12.2018, is not only unfair, unjust but also whimsical and arbitrary. We hold so," the Court observed.

Setting aside the impugned Appellate Medical Board Report, the Court directed the respondents to take the assessment of the percentage of disability of the Petitioner at 60% and also consider him qualified so far as the medical criteria is concerned.

"As a consequence, Respondent No.1/DoPT is directed to allot the cadre and appoint the Petitioner in Indian Administrative Service (2015 Batch) considering him eligible in so far as the Central Civil Examination, 2014 is concerned with all consequential benefits in respect of seniority and promotion on notional basis. Since the Petitioner  did not discharge any duties, we refrain from granting any back wages," the Court added while disposing of the petition in favour of the petitioner. 

Read the embedded order dated 22 Aug 2022 below:-

Thursday, August 18, 2022

Calcutta HC: RPwD Act shifts focus from protection to empowerment [Judgement Included]

High Court: Calcutta HC

Bench/ Judge:  Justice Moushumi Bhattacharya

Case Title: WPA 6043 of 2022, Dr. Arun Sarkar Vs. The State of West Bengal & Ors. 

Date of Judgement/Order: 08 August 2022

The Calcutta High Court  quashed a resolution passed by the Governing Body of a College refusing to consider a person with physical impairment for appointment in the disability category, finding it to be in violation of the Right of Persons with Disabilities Act, 2016.

The court observed that the 2016 Act which replaced the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to empower persons with disability rather than protect them. The Single Judge also made significant observations on the nature of the 1995 Act and the 2016 Act, adding that in the 2016 Act, the canvas was more about effective integration of persons with disability and less about recognition of a physical condition as a limiting factor.

"The 2016 Act is a declaration of rights and opportunities to persons with disability. While the idea of freedom from the physical limitations germinated in the 1995 Act, in 2016 the focus shifts from protection of persons with disability to empowerment; recognition of limitations to removing barriers; the right to participation to affirmative action. In essence, the statute facilitates the movement of the community from the margins to the mainstream of opportunities.", the court observed.

The petitioner was a  person with benchmark disability with a 80% disability as a result of the amputation of his upper limbs following an accident. He served as the Assistant Professor at Kandi Raj College for seven years and thereafter sought an appointment in a college nearer to his residence finding it difficult to travel 480 km on a daily basis. He was soon recommended by the West Bengal College Service Commission for an appointment at the Acharya Girish Chandra Bose College in the Disability category. However, the Governing Body of the College passed a resolution asking the Commission to reconsider its recommendation of the petitioner as a candidate.

Aggrieved by this, the petitioner filed a petition before the High Court which came to be dismissed by a Single Judge in 2020 for want of requisite pleading. However, liberty was granted to the petitioner to challenge the decision of the Governing Body. Accordingly, he moved another petition.

Counsel for the petitioner submitted that the impugned decision of the Governing Body culminated in the College refusing to issue the letter of appointment to the petitioner and that it was thereby arbitrary, discriminatory and in violation of the 2016 Act.

Counsel  for the college submitted that a mere recommendation for appointment to a post does not confer any right on the petitioner to be appointed to such post. It was also argued that since the advertisement for the post was published by the College Service Commission in 2015, the facts would be governed by the 1995 Act and not the 2016 Act.

While deciding the question of whether the petitioner's case would be governed under the 1995 Act or the 2016 Act, Justice Bhattacharya recalled that Section 102(2) of the 2016 Act provides for a saving clause with reference to anything done or any action taken under the 1995 Act as deemed to have been done or taken under the corresponding provisions of the 2016 Act. "Hence, even if the advertisement was published by the Commission on 30th June, 2015 before the 2016 Act came into force, the action of the Commission and the College taken on the basis of such advertisement would continue under the provisions of the 2016 Act." observed the Judge.

Moreover, the Single Judge found that the objects of the 2016 Act make it evident that it is a piece of beneficial legislation for preserving the rights of persons with disabilities and empowering them with equal opportunities. "If this be the case, attempting to slot the petitioner into one legislation to the exclusion of the other would be an unnaturally restrictive vision of the bridge between the two Acts and their commitment to inclusivity," the Court observed.

Analysing the definition of 'disability' under the 1995 Act and the 2016 Act respectively, the judge observed, "While the 1995 Act associated disability as a condition from birth,  the 2016 Act had a more inclusive definition for the same, which included evolving forms of disability within its fold."

Either way, it was found that in a legislation intended to benefit persons with disability, a definition of disability cannot be frozen with the repealing of the 1995 Act particularly when the whole object of the 2016 Act was to include broad-spectrum disabilities which were not within the recognition of the framers of the earlier statute and to empower persons with disabilities to effectively integrate with society.

In any event, the cause-effect factor cannot be discounted to limit spectrum disabilities just because the petitioner did not have 80% disability from birth, the Court held. Therefore, it was found that the petitioner was a person with disability as defined under the Acts.

The Court then observed that the objective of the 2016 Act was full participation of persons with disabilities and empowering them to realize their full potential. The Judge also found it essential to analyse the definition of 'barrier' as given under Section 2(c) - any factor including communicational, cultural, economic and environmental impeding the full participation of persons with disability in society.

Thus, it was clear that the goal of the 2016 Act was to remove barriers in all forms which would frustrate the object of the Act. Viewed from this angle, it was clear that the decision of the Governing Body, in essence, revealed a set of prejudices which squarely fit into the definition of a  "barrier". The Court added that this was also a reflection of a mindset barrier and that it falls foul of the statutory mandate on all counts.

"The impugned decision is opaque, reflects an intransigent mindset and a systemic obstacle to the personal and intellectual growth of persons with disability. The decision is regressive and chains the freedoms and opportunities of the community." observed the judge.

The court held that the Governing Body had a duty to consider the import of the provisions of the 1995 Act and the 2016 Act which imposed a duty on the Body to act in terms of the mandate of the law which it failed to do.

"There cannot be any denial of the fact that the Governing Body of the College had a duty to act responsibly with sensitivity, having regard to the statutory position governing persons with disabilities. It is all the more surprising that the Governing Body directed the Chairman and Secretary of the College Service Commission to replace the recommendation of the petitioner "by another one with same category" (the words are further indicative of the mindset of the Governing Body)." expressed the judge.

The impugned decision also gave rise to serious civil consequences on the petitioner's rights in specific and persons with disabilities in general, hence the impugned decisions are denounce-worthy as per the 1995 and 2016 Acts and being in direct contradiction with the objectives sought to be achieved by the statutes.

While the Court may not appropriate unto itself the power of recommending the petitioner for appointment, the Court deems it fit to direct the Governing Body to arrive  at a fresh consideration of the facts before it and revisit the issue with due regard to the statutory mandate. The resolution taken by the Governing Body was quashed and it was directed to come up with a fresh decision within 8 weeks. The appeal was thus partially allowed.


Wednesday, August 17, 2022

Supreme Court of India : Disabled Employee Should Not Be Forced To Forfeit Seniority For Choosing Posting Place under a beneficial circular [Judgement Included]

Court: Supreme Court of India

Bench: Justice Indira Banerjee and Justice J.K. Maheshwari

Caste Title: Net Ram Yadav Vs. The State of Rajasthan & Ors. 

Date of Judgement: 11 Aug 2022

Summary of the Case

A person appointed under quota for Persons With Disabilities was allowed to choose his place of posting as per a beneficial circular issued by the Government- Later, in the state seniority list, his seniority was downgraded for having opted for transfer - The State relied on a provision in the service rules as per which a person will choose seniority within a district on transfer as per his request.

The Court held that provision cannot alter state wise seniority - The Court  also held that the benefit given to disabled persons as per the circular cannot be rendered otiose by imposing conditions.

Rights of Persons With Disabilities Act 2016 - The marginalization of the persons with disabilities is a human rights issue, which has been the subject matter of  deliberations and discussion all over the world. There is increasing global concern to ensure that the disabled are not sidelined on account of their disability (Para 26) 

Rights of Persons with Disabilities Act 2016 - Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled (Para 30)

Rights of Persosn with Disabilties Act 2016 -One of the hindrances/disadvantages faced by the physically disabled persons is the inability to move freely and easily. In consideration of the obstacles encountered by persons with disabilities, the State has issued the said notification/ circular dated 20th July 2000 for posting disabled persons to places of their choice, to the extent feasible. The object of this benefit to the physically disabled is to, inter alia, enable the physically disabled to be posted at a place where assistance may readily be available. The distance from the residence may be a relevant consideration to avoid commuting long distances. The benefit which has been given to the disabled through the Circular/ Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose (Para 31)


The case:

A bench of Supreme Court ruled that disabled employees can’t be forced to forfeit seniority for choosing a posting under the beneficial circular. The circular in question was issued by the Finance Department of the Rajasthan Government. It directed the appointing authorities to consider the posting of persons with disabilities at or near the place for which they opt at the time of appointment.

A bench comprising Justice Indira Banerjee and Justice JK Maheshwari opined that while the physically disabled appellant was appointed in 1993, which was before the Circular was passed in 2000, having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular would be extended even to those candidates who were appointed before issuance of the Circular.

Briefly, the facts of the case are that the appellant, a disabled candidate of the "OBC" category, was selected as Senior Teacher under the Education Department of the Government of Rajasthan, Deeplana in Hanumangarh, District Bikaner, through a direct competitive examination. However, Deeplana, where the Appellant was posted was located at a distance of about 550 kms away from Behror, the place of residence of the Appellant in Alwar District. As per a Circular issued by the Finance Department of the Rajasthan Government, all appointing authorities were directed to consider the appointment/posting of persons with disabilities at or near the place for which they opt at the time of appointment/posting. After the issuance of Circular, the appellant made a representation to be transferred to his home district Alwar, considering his physical disability.

Accordingly, the Deputy Director of Education (Secondary) transferred the Appellant to Alwar. However, the transfer to his home district entailed a down-gradation in his seniority. 

In 2016, the Appellant was promoted to the post of Junior Lecturer and posted at the Government Aadarsh Senior Secondary School at Nangalkhodia, Behror, Alwar. In 2017, the temporary eligibility list of qualified teachers for promotion to the post of Head Master was published and the name of the Appellant did not feature in the list as his name had been deleted from the the State and Divisional level seniority list in 2007 and as a result, had been changed in the seniority list from 870 to 1318. 

The Appellant filed a Writ Petition before the Single Judge of the Jaipur Bench of the High Court of Judicature for Rajasthan, challenging the downgrading of his seniority. However, the same was dismissed. 

Thereafter, he appealed to the Division Bench, which also dismissed his appeal based on Explanation to Sub-Rule (10) of Rule 29 of the Rajasthan Educational Subordinate Services Rules, 1971 (the Explanation). As per  the said Explanation, when an employee is transferred to a district based on his request, he should be placed below the junior most person in the district.

Here, the court opined that the actions of the Respondent-Authorities ex facie violated Articles 14 and 16 of the Constitution of India. On a perusal of the Explanation, the court stated that the said explanation applied to employees in general to discourage transfers on request and that it affects only the district-wise seniority. The Explanation will not alter state level seniority.

The court, acknowledged that the Appellant was appointed in 1993, long before the Circular for appointment/posting of persons with disability at or near the place of their choice was issued in 2000. However, it stated that having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular had to be extended even to those candidates appointed before issuance of the Circular.

Accordingly, the court noted that exclusion of the benefit of the Circular to disabled employees already in employment at the time of its issuance, would violate the fundamental right of those employees to equality under Articles 14 and 16 of the Constitution of India.

Fundamental rights of disabled persons

While opining upon the marginalisation of people with disabilities, the court highlighted that the United Nations Convention on the Rights of Persons with Disability (UNCRPD), which is aimed at protecting the human rights and dignity of persons with disability, was adopted to ensure inherent dignity and individual autonomy of persons with disability. The court underscored that the right of nondiscrimination under the UNCRPD, would include reasonable accommodation and/or concessions for full and effective participation and inclusion in society. Since UNCRPD had been ratified by India, the State was thus obliged to give effect to the UNCRPD.

The court further stated that– "Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled."

While noting that one of the hindrances/disadvantages faced by the physically disabled persons was the inability to move freely and easily, the court held that the object of the Circular issued for posting disabled persons to places of their choice was to enable the physically disabled to be posted at a place where assistance may readily be available. Further, the distance from the residence was s relevant consideration to avoid commuting long distances. The court stated that–

"The benefit which has been given to the disabled through the Circular/Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose...Both the Single Bench as also the Division Bench of the High Court have overlooked the scope and ambit of the Explanation which has no application in the State to seniority.

Supreme Court stated that “the High Court should have been more sensitive and empathetic to the plight of a physically disabled. The High Court erred in law in overlooking the difference between physically disabled persons impaired in their movement and normal able-bodied persons. The High Court failed to appreciate that treatment of unequals as equals ignoring their special needs violates Article 14 of the Constitution.”

In view of the above, The Supreme Court allowed the appeal and directed the respondents to restore the seniority of the Appellant in the State to the original position, taking into account the service rendered by him in Hanumangarh.

Read the Judgement embedded below:

Tuesday, August 16, 2022

Supreme Court of India issues Guidelines on writing simple, accessible and lucid judgements

Court:               Supreme Court of India

Bench:               Justices DY Chandrachud and AS Bopan

Case No. :         CA 5305 of 2022

Caste Title:       State Bank of India vs Ajay Kumar Sood  

Date of Order:  16 August 2022

Notes: 

Judgments - Broad guidelines on judgment writing - While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles -

Incoherent judgments have a serious impact upon the dignity of our institutions -

"IRAC‟ method of judgment writing - The judge must write to provide an easy-tounderstand analysis of the issues of law and fact which arise for decision.

Judgments - Accessibility - Judgments to carry paragraph numbers and a table of contents in a longer version - Judgments should be accessible to persons from all sections of society including persons with disability - They should not have improperly placed watermarks and should be signed using digital signatures - They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens. 

Synopsis

The purpose of a judgment is not to "confuse or confound the readers", the Supreme Court of India has urged the Courts and Tribunals to "provide an easy-tounderstand analysis of the issues of law and fact" in their verdicts. The crucial observation was made by the SC Bench while dealing with a judgment of the Himachal Pradesh High Court which was found to be "incomprehensible".

"Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse. Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded". said the bench.

The Bench also made following important observations:

The work of a judge cannot be reduced to a statistic about the disposal of a case.

Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change. In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.

A judgment is a manifestation of reason

A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge's work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest. The scrutiny is first and foremost by the person for whom the decision is meant - the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom. Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrumen  in fostering the rule of law and in curbing rule by the law 

Judgment writing is a layered exercise

Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue. If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window - an insight - into the work of the court in espousing these values as an integral element of the judicial function.

Brevity is an unwitting victim of an overburdened judiciary

Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cutcopy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.

It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility access of the judgments. A Table of Contents in a longer version assists access to the reader.

IRAC Method Of Judgment Writing

  1. In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the "Issue, Rule, Application and Conclusion‟ are easily identifiable. The well-renowned "IRAC‟ method generally followed for analyzing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.
  2. The "Issue‟ refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment.
  3. The "Rule‟ refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified.
  4. This rule is applied to the facts of the case in which the issue has arisen. The analysis recording the reasoning of a court forms the "Application‟ section.
  5. Finally, it is always useful for a court to summarize and lay out the "Conclusion‟ on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.

Accessibility

On the note of accessibility access , the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.

While we have laid down some broad guidelines, individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles.


Read the judgement embedded below:

Tribunal orders the Govt. of Delhi to change Recruitment Rules to reflect equal status of B Ed and Special B Ed. and declare the result & appoint applicant with consequential benefits, if she successful

"Our reading of the degree held by the applicant of B.Ed Special Education means that the term ‘B.Ed’ gets subsumed in the B.Ed Special Education"     - Says Central Administrative Tribunal on Delhi Govt. withholding exam result & rejecting candidature of an applicant as non eligible.

 

Court: Central Administrative Tribunal, Principal Bench, New Delhi

Bench: Hon’ble Mr. R N Singh, Member (J) & Hon’ble Mr. Tarun Shridhar, Member (A)

Case No.:  O.A. No. 2183/2015

Case Title:  Uma Rani Vs. Govt of NCT of Delhi &  Others

Date of Judgement: 16 August 2022

Brief:  

The applicant appeared in a competitive examination for selection to the post of TGT (Hindi) Female in the Department of Education, Government of NCT of Delhi pursuant to an examination conducted by the respondent No. 2 i.e. the Delhi Subordinate Services Selection Board (DSSSB).

While the result of  the examination with respect to other candidates, who had appeared for the said post, was declared, the result qua the applicant was withheld and subsequently, the candidature of the applicant was rejected on the ground that she did not possess the requisite essential qualification of Bachelor of Education (B.Ed). The applicant possesses the qualification of B.Ed i.e. B.Ed in Special Education (Mental Retardation) and the respondents have held that this qualification is not equivalent to B.Ed.

The applicant argued that persons possessing the degree of B.Ed Special Education are trained and competent not only to teach regular subjects but also to handle the specific needs and requirements of children who are differently or specially abled. 

Reliance ws also placed on the Supreme Court Judgement in which the apex court has unambiguously held that B.Ed. Special Education is equivalent to the B.Ed. And therefore, there was noo cause for the respondents to deny consideration of selection of the applicant on the ground that the applicant does not possess equivalence degree to the one required in the Recruitment Rules. 

Attention of the Bench was further drawn to the detailed judgment dated 16.09.2009 passed by the Hon'ble High Court of Delhi in WP (C) 6771/2008 titled Social Jurist, A Civil Rights Group versus Government of N.C.T. of Delhi & Anr. In the aforesaid Judgment, the Delhi HC had given a direction to the respondents i.e. GNCTD to grant equivalence to B.Ed. Special Education with B.Ed General. In fact, while giving this categorical direction the Hon’ble High Court had also observed and used the term ‘request’ to the respondents to consider granting preference and priority to the candidates holding B.Ed Special Education in appointment of Teachers in all their schools. The High Court had observed that each school shall have at least two special teachers along with necessary teaching aids and reading materials. The said direction/observation/request of the Court was against the background of children with special needs not getting admission in regular schools on account of non-availability of trained teachers and necessary facilities.

Attention was also drawn to an Order dated 31.03.2016 passed by this Tribunal in O.A. No. 3442/2014, wherein it was held that since the Right to Education Act stipulated that the teachers with qualification of B.Ed or D.Ed in Special Education should be recruited in the schools.

But despite several orders the resondents haven't made any change to Recruitement Rules to include the term B Ed Special Education and it contined to be implemented mechanically with the term B. Ed. used therein.  

The bench said in its order, "we are surprised to know that the respondents have not taken any steps to either amend the necessary rules or even issue administrative orders declaring equivalence of B.Ed Special Education with B.Ed." 

"We have no cause to deviate from the principle and law already laid down by the Hon'ble High Court. Moreover, even our reading of the degree held by the applicant of B.Ed Special Education means that the term ‘B.Ed’ gets subsumed in the B.Ed Special Education and we cannot hold the validity of the action of the respondents in rejecting the candidature of the applicant." opined the bench.

Allowing the Original Application, the bench further directed the respondents that in the  event of the applicant having been successful in the competitive exam and given appointment pursuant to this Order, she shall be entitled to all the consequential benefits, including seniority at par with the candidates selected pursuant to the notification dated 21.05.2014. However, such consequential benefits shall be only on notional basis.

Read the Judement embedded below:

Wednesday, August 10, 2022

Kerala HC orders the Govt. of Kerala & Aided schools to fill up backlog of 3% reservation since 07 Feb 1996 under PWD Act 1995 & 4% reservation since 19.04.2017 under RPWD Act 2016

Dear colleagues,

The Kerala High Court (Ernakulam Bench)  has come heavily against the aided Schools in Kerala and Govt. schools for not implementing the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act 1995 and the Rights of Persons with Disabilities Act 2016 and not appointing persons with disabilities on the teaching and non -teaching posts.  Several cases were tagged together with a common grievance against the Govt. of Kerala. The court impleaded a total of 106 additional respondents in the lead case while the original petition only had three respondents namely the State of Kerala (rep by Secretary to General Education), the Director of General Education and the State of Kerala (rep. by Secretary Social Justice Deptt). 

The petitoner in the lead case was Mr. K.J. Varghese, the President of  Kerala Federation of the Blind, representing five blind persons who contended that they have acquired all the requisite qualifications to seek appointment to the post of Upper Primary School Teacher, High School Teacher, and also for non-teaching posts in Aided Schools in the State.

The court presided by Mr. Justice Raja Vijayaraghavan V.  in the judgement passed on 10 Aug 2022, held and declared that the Managers of Aided Schools are bound by G.O.(P) No.18/2018/SJD dated 18.11.2018, and they shall provide 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from 07.02.1996 and to fill the backlog from 07.02.1996 to 18.04.2017; and 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided schools with effect from 19.04.2017 in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the orders referred to therein.

It also quashed G.O.(P) No.19/2021/G.Edn. dated 08.11.2021 (Ext.P5 in W.P.(C) No.19808/2021) and Order dated 07.12.2021 vide No. H(2)/295299/2021/D.G.E. issued by the Additional Director General (Ext.P6 in W.P.(C) No.19808/2021) to the extent that it fixes a cut off date and directs that only vacancies in Aided schools which arise after 08.11.2021 shall be filled up in terms of the 1995 Act/2016 Act. 

The High Court bench ordered that in terms of G.O.(M.S) No.111/2022/G.Edn. dated 25.06.2022 but without the cutoff date fixed as 08.11.2021, backlog vacancies from 07.04.1996 shall be calculated and the roster shall be prepared within a period of two months from today tabulating the first in 33 vacancies from 07.02.1996 and the first in 25 vacancies from 19.04.2017 onwards for absorbing differently abled in the process of recruitment in Aided Schools in respect of vacancies that have arisen after the date of issuance of G.O.(P) No.18/2018/SJD dated 18.11.2018 as upheld by this Court in Renjith (supra) and in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the previous orders referred to therein.

The Court also ordered that the appointments already made by the management after the date of issuance G.O.(P) No.18/2018/SJD dated 18.11.2018 in respect of which approval has not been granted by the educational authorities to date shall be subject to the directions above. Only after filling the backlogs as directed above, shall approval be granted in respect of those appointments. Approval of appointments already granted shall not be unsettled.

This case sets a clear road map for implementation of job reservations from 07 Feb 1996 as per the mandate of the1995 Act as a backlog and that the State couldn't decide when it wants to implement the law of its own whims and fancies by providing new cutt of dates. 

Below is the link to the Judgement dated 10 Aug 2022 by the High Court of Kerala at Ernakulam :  

W.P.(C) No.19808/2021 & connected cases titled  K.J. Varghese Vs. Govt. of Kerala & 108 Others [PDF 901 KB]



Monday, August 8, 2022

Madras HC | WP No. 23154 of 2015 | D Ramkumar Vs. Pondicherry Society for Higher Education and Others | 08 Aug 2022

 Court: High Court of Madras

Bench: MR. JUSTICE M.S. RAMESH

Case No. & Title: W.P.No.23154 of 2015, D Ramkumar Vs. Pondicherry Society for Higher Education and Others.

Date of Judgement: 08 Aug 2022

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Brief Facts:

The petitioner, a 100% blind Associate Professor/HOD of English was transferred to another college citing that it was women college and all male teachers need to be shifted to other colleges, while many male teacherss continued to work and only the petitioner was transferred with malafile objectives. This was challenged by the petititioner. Single bench rejected his case but the in the appeal before the  Division Bench of this Court, the bench clearly held that the order of transfer was discriminatory and arbitrary, which has to be regarded as illegal. And thus the petitioner returned to his colleges. The college however, refused to pay salary and other monetary benefits for the period and rejected on the ground of "no work no pay" and that the Bench had specifically not directed to pay the wages.

The petitioner again had to take up the matter. The bench held, the claim for the monetary benefits including the salary after the transfer order, cannot be rejected on the ground of 'no work, no pay.  The court further held that  when the order of transfer of the petitioner was set aside by this Court, the consequential service and monetary benefits arising therefrom between 26.11.2013 and 29.06.2014 would automatically become a part of such an order and no specific directions need be given for payment of such benefits. If that be so, the petitioner herein need not specifically plead for the relief of consequential service and monetary benefits, in the earlier round of litigations. Incidentally, since the Hon'ble Division Bench had not denied these benefits to the petitioner, it ought to be held that he would be entitled for all these benefits. 

The court passed direction to the first respondent to forthwith regularise the period between 25.11.2013 and 29.06.2014, as duty period for all purposes and extend all the service and monetary benefits arising thereto, within a period of four (4) weeks from the date of receipt of a copy of this order.

Read the judgement embeddded below: