Wednesday, July 27, 2022

Uttarakhand HC: Persons With Disabilities Entitled To Horizontal Reservation Cutting Across "All Categories": HC Quashes UKPSC Recruitment Notification


High Court:   Uttarakhand High Court

Bench:              Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe

Case No. :         WP(S/B) No.49 of 2022, 

Case Title:        Manish Chauhan and another Vs. State of Uttarakhand and another

Date of Judgement:  27 July 2022

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Case Brief:

The Uttarakhand High Court has quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court's decision in Indra Sawhney vs. Union of India and Anr.

The notification prescribed Horizontal reservation in a manner that in the Un-reserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. Similarly, in the History, no reserved seat was shown for a candidate of disability category who may also be a Scheduled Tribes candidate. 

"The manner in which the State has sought to apply Horizontal reservations is completely contrary to the decision of the Supreme Court in Indra Sawhney (Supra)...Persons with disabilities are entitled to horizontal reservation cutting across all categories." the bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed.

The Court explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat and depending on whichever category that person belongs to, i.e. whether the person is a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.

In Indra Sawhney the Supreme Court had elucidated that Horizontal reservations cut across the vertical reservations and persons selected against this quota will be placed in the appropriate category. "If he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments."

Similarly, Rule 11(4) of the 2017 Rules prescribes that reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.

In its counter affidavit, the UKPSC  submitted that their manner of working out horizontal reservation had been prescribed by the State of Uttarakhand. The Counter affidavit of State of Uttarakhand  stated that the impugned advertisement was issued in lieu of a government order dated 22.05.2020. The GO had stated that "if under horizontal reservation no eligible candidate is found fit for selection, the selection for the said post will be done as per norms of general selection except for the posts reserved for Divyang (Disabled Person)"

The Court opined that the manner in which the State had sought to apply horizontal reservations was legally unsustainable and the notification was accordingly quashed with liberty to come out with a fresh advertisement strictly in compliance with the law. 

Read the Court judgement embedded below:

Tuesday, July 26, 2022

Degree of disability no ground to deny reasonable accommodation : Supreme Court of India [Judgement Included]

Court: Supreme Court of India

Bench:   Justice Dr Dhananjaya Y Chandrachud ; Justice Indira Banerjee and Justice Sanjiv Khanna

Case Number & Title: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.

Date of Judgement: 11 February 2021

Cases refered/quotedJeeja Ghosh vs. Union of India (2016)  7 SCC 761V Surendra Mohan vs. State of Tamil Nadu;  Rajive Raturi v. Union of India and Ors., 2017 ; Disabled Rights Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.

Case Brief:

On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual suffering from Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE). 

The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).


Case details:

In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. 


The Court further said that “…Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India…A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”


The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability).  The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation.  The Court said ” … the accommodation which the law mandates is ‘reasonable’ because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence…”


In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.


The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.


The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate. 


In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals with a ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.


The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution


The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities. 


The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.


The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.


Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to  the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.


Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.


Read the judgement embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others.




Madrash HC: Chennai Metro Stations do not meet accessibility mandate of Harmonized Guidelines - argues Disability Activist

Court:         Madrash High Court

Bench:        Admitted by Bench of M.M.SUNDRESH, J. and R.HEMALATHA, J.

Case No.     W.P. No. 11041 of 2020

Case Title:  Vaishnavi Jayakumar  Vs. State Commissioner for Persons with Disabilities & CMRL

Case admitted on : 21.08.2020

Next Date: 27.07.2022

Case Brief

This Writ Petition has been filed by our colleague Ms. Vashnavi Jayakumar of Disabilty Rights Alliance, under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus Directing the 2nd respondent i.e. Chennai Metrol Rail Ltd.  to forthwith retrofit its existing metro stations to comply with the Harmonised Guidelines and space standards for Barrier Free BuiltEnvironment for persons with Disabilities and Elderly Persons issued by the Ministry of Urban Development in 2016 and to strictly comply with section 41 of the Rights of persons with Disabilities Act 2016 read with Rule 15 of Rights of persons with Disabilities Rules 2017 in the design and Construction of metro Stations under Construction, including stations planned in the future.

The petitioner informed the court that the metro stations constructed by the respondent CMRL were in violation of the law and were not universally accessible. As per the petitioner, the following features needed to be included in the stations:

i. Anti-reflective flooring which contrasts with walls in colour and is non-slip in dry or wet conditions (resistance of 40-70)
ii. Wheelchair accessible ticket counter with audio induction loop for hearing aid users
iii. Accessible kiosks for blind passengers and wheelchair users.
iv. High contrast signage, displays, information tools and controls with multimodal communication
v. Sliding doors for accessible toilets
vi. Universally designed safety and evacuation equipment
vii. Tactile, high contrast way-finding
viii. Accessible parking

Through various interim orders, all the 32 Metro stations of the CMRL were access audited to see if they meet the requirements of the Harmonised Guidelines and Space Standards 2016 and the respondent has been implementing the same to comply with law.

On 11 Sep 2020, the bench of Mr. Justice MM Sundresh and MRs. Justice R. Hemalatha  directed the first respondent to depute his officials to undertake inspection exercise after making inspection to the existing Metro Rail Stations and file a report on the sufficiency of the infrastructure facilities qua disabled persons. A report in this regard will have to be filed on or before 06.10.2020.

On 11 Dec 2020, the learned counsel for the petitioner had drawn the attention of the Court to Rule 15 of the Right of Persons with Disabilities Rules 2017, as well as the order of ad-interim direction dated 28.06.2016 made in WP.No. 38224/2005 titled Rajiv Rajan Vs. CMD, Metropolitan Transport Corporn (Chennai) Ltd.  and submitted that in the light of the mandate cast upon the relevant statutory provisions, it is obligatory rather mandatory upon the 2nd respondent to strictly comply with the said provisions so as to make the Metro Rail Stations as well as travel disabled friendly and prays for appropraite directions.

On 15 June 2022 the counsel for the second respondent/CMRL submitted that the matter may be taken up after six weeks so that they can take further action to comply with the Harmonised Guidelines and space standards for Barrier Free Built Environment for persons with Disabilities and Elderly Persons. It is, however, submitted that except this, necessary action has already been taken, leaving few, which would also be taken up within the period of six weeks.  

In view of the submissions made by CMRL, the respondents have been given time to take necessary action. The matter has been posted to July 27 for further hearing

Watch out this space for the developments.



Centre Govt. informs SC that it notified the standards of pupil-teacher ratio for special schools and separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools

Govt. of India has confirmed before a Supreme Court bench comprising Justices A M Khanwilkar, A S Oka, and J B Pardiwala on 21 July 2022 that it has accepted the  norms and standards of pupil-teacher ratio for special schools and also separate norms for special educators, who alone can impart education and training to children with special needs in general schools, as recommended by the Rehabilitation Council of India (RCI). In its compliance affidavit filed before the Hon'ble Supreme Court, the Ministry of Education referred to the norms and standards as per which the recommended pupil-teacher (special education teacher) ratio for regular (inclusive) school is 10:1 for the primary level and 15:1 for the upper primary, secondary and higher secondary level.

The letter also clarifies that the parity of pay and service conditions should be adhered to for special education teachers as done for general education teachers at national and state levels", it is related to respective State Governments/ UT Administrations as Education being in the concurrent list of subjects.

With this, a long pending issues have been settled and implemented regarding status of special education teachers  (under RCI) at par with the B Ed. teachers (under NCTE) and also that children with disabilities would be taught only by teachers trained under RCI and the educational insstitutions will also ensure that the teacher pupil ratio as prescribed by the RCI is maintrained to ensure quality of education and to comply with the provisons of the Rights of Persons with Disabilities Act. 

The department of school education and literacy, Ministry of Education, had issued a letter on June 10, 2022 to the education secretaries of all the states and Union Territories (UTs), the commissioners of 'Kendriya Vidyalaya Sangathan' and 'Jawahar Navodaya Vidyalaya Samiti' wherein the norms and standards of pupil-teacher ratio (PTR) have been circulated with a request to take further necessary action in the light of the apex court judgement and furnish an action taken report to the department.

"Since this department has finalised the norms and standards i.e PTR for special teachers/special educators who alone can impart education and training to CwSN (children with special needs) in the general schools, it is humbly submitted that this department is in the process of issuing notification by amending the 'schedule' of the RTE Act, 2009, in compliance of para 34 of the judgement dated October 28, 2021, passed by this court. It is further submitted that this process is likely to take 4 to 6 weeks," the affidavit said.

Supreme Court was hearing the complinace of its judgement passed on 28 Oct 2021 in Writ Petition (Civil) No. 132/2016 titled Rajneesh Kumar Pandey & Ors versus Union of India & Ors, wherein the Court had said that the Centre must forthwith notify the standards of pupil-teacher ratio for special schools as also separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools across the country.

The bench, however, posted the matter for further hearing on August 17, 2022 asking the concerned states and UTs to submit the compliance report to the Secretary of the Ministry.

The affidavit said the committee, as formed by RCI to formulate the norms of special educators in special schools, was also requested to formulate the norms, guidelines, standards on ratio, roles, responsibilities, etc of special teachers/special educators in general schools in view of the apex court directions. It said the draft norms were submitted to the ministry by the RCI.

 RCI has also recommended and redefined the "role of special teachers", while being a catalyst to empower children with disabilities, they will undertake certain responsibilities for facilitating inclusive education. It included providing tips for making an inclusive school climate, culture, and ethos where all systems from admission to assessments, teaching, and evaluation are disabled-friendly. The letter also referred to the "outreach activities" for special teachers which include, undertaking home visits and support home training programs. The "suggested activities" for special teachers, will also include developing an annual/monthly calendar of activities for inclusion.

Here is the judgemment of the Hon'ble Supreme Court: 

Writ Petition (Civil) No. 132/2016 Rajneesh Kumar Pandey& Others VERSUS Union of India & Others. 







Tuesday, July 5, 2022

Madras HC | TN Govt. GO to the extent it offends RPWD Act or Provisions of Harmonised Guidelines & SC Judgement in Rajive Raturi case.

Court:          Madras High Court

Bench:         Mr. Munishwar Nath Bhandari, Chief Justice and Mrs. Justice N. Mala. 

Case No.      W.P.No. 5957 of 2021

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

Date of Judgement: 05 July 2022

The writ petition challenges a G.O.  on the ground of violation of Section 41 of the Rights of Persons with Disabilities Act, 2016. It is also on the ground that when no direction has been given by the Apex Court to have only 10% of the government buses disabled friendly, G.O. indicates only 10% of the total number of Government buses to be low floor buses. 

Further to our previous post dated 22 July 2021 titled Madras HC to Tamil Nadu Govt. - No purchasing buses for public transport, unless they are disabled friendly.

On 26.08,2021, it was again submitted on behalf of the State that even though the legal requirement may not have been complied with, certain other factors need also to be taken into consideration, particularly in the wake of the pandemic and the economic loss suffered by all States, including this State. It is further submitted that though it is imperative that all buses become disabled friendly, but the disabled friendly buses cost much more than ordinary buses and require much better road conditions, particularly within the city limits, than may now be available. 

The bench however, said, "Appropriate measures should have been taken much earlier so that things would not come to such a pass. Though it can be appreciated that the pandemic has caused a severe loss and city roads may still not be viable to receive low platform heavy duty vehicles, there has to be much more acquisition of disabled friendly buses and investment in appropriate roads since the law has been in place for a considerable period of time. At the same time, some latitude may be offered so that the larger public interest is served and the blanket embargo on acquisition of buses does not completely disable the public transport system."

Matter was finally heard and disposed off on 05 July 2022, in following terms:

"the writ petition is disposed of causing interference with G.O.Ms.No.31 dated 24.02.2021 only to the extent that it offends any of the provisions of the Act or Rules or the Harmonised Guidelines issued by the Government of India and directing the respondents to ply all the Government buses, in conformity with the provisions of the Act and Rules and the Harmonised Guidelines quoted above and in the light of the judgment of the Apex Court in the case of Rajive Raturi supra. There will be no order as to costs

 Read the Judgement dated 05 July 2022  embedded herein below:

Madrash HC: M. Gnanasambandam Vs. Govt. of India | WP No. 923 of 2007 | 05 July 2022

Court:                     Madras High Court

Bench:                    Mr.Munishwar Nath Bhandari, Chief Justice and Mrs. Justice N. Mala. 

Case No.                WP No. 923 of 2007

Case Title:             M. Gnanasambandam  Vs. Union of India 

Date of Order:       05 July 2022

This Petition was filed under Article 226 of the Constitution of India praying for a writ of Mandamus directing the respondents to take the following measures to facilitate the effective implementation of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995: 

I. To frame and notify comprehensive Rules immediately for according recognition to various types of Schemes (Educational Institutions for the Disabled) as provided under Chapter V Education under the PWD Act. 

II. To distribute scholarships to all school going children with disabilities in time. 

III. To direct the Central and State Governments to issue notifications to make schemes to provide Aids and Appliances to persons with Disabilities. 

IV. To direct the respondents to enquire into in detail from the year 2002 onwards about the alleged violations in the distributions of Aids and Appliances under ADIP Scheme as well as Inclusive Education Programme under Sarva Shiksha Abiyan and submit a Report before this Hon'ble Court. 

V. To direct the respondents to initiate necessary punitive action against those responsible for such kinds of nefarious acts and take suitable measures to prevent such malpractices in future. 

VI. To direct the respondents to make schemes providing for medical benefits, expenses and treatment for persons with Disabilities.

VII. To direct the respondents to make provisions for terminally ill and chronically sick children with disabilities as well as adult and aged persons with disabilities for providing life ling care, protection and medical treatment free of cost, irrespective of the type of disability. 

VIII. To direct the respondents to provide with appropriate social security to the destitute and abandoned children as well as adult and aged persons with disabilities, till their death, irrespective of the type of disability. 

IX. To direct the respondents to streamline the admission of persons afflicted with mental illness in appropriate Pshychiatric Rehabilitation Centres. 

X. To direct the respondents to form a Monitoring Authority or Enforcement Mechanism at the State as well as District levels which can be empowered to supervise and report to the Chief Commissioner for Persons with Disabilities and the State Commissioner for the Disabled about the proper implementation of the provisions of the Act in the respective States.

XI. To direct the respondents to entrust the State and District Legal Services Authority with the task of protecting the rights of persons with Disabilities. 

XII. To direct the respondents to bring all the social legislations viz., 

i. The Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. 

ii. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999; and

iii. The Juvenile Justice (Care and Protection of Children) Act 2000 under one umbrella; and 

XIII. To direct the respondents to empower the State and District Legal Service Authorities to supervise the smooth functioning of the above Acts at all levels. 

The writ petition was registered as Public Interest Litigation, pursuant to the letter written by the petitioner.  Taking note of the issues raised in the petition, directions were issued by this Court while taking cognizance of the matter and sought for compliance. 

The compliance report has been submitted from time to time. Below the interim order passed on 10 December 2020. 

   

 After the registration of the petition, there are changes not only in terms of the position of law, but even in reference to the administrative instructions, such as Guidelines for the Government/Public transport. Rules of 2017 was introduced and Rule 15 of the Rules 2017 was applicable. The Harmonised Guidelines was also issued and thereby, there is a sea change subsequent to the registration of the case on all the issues.

In view of the above, it would be appropriate to close the writ petition with liberty to the writ petitioner to come up with a fresh writ petition if any issue remains unaddressed. There will be no order as to costs.

Read the final dated order dated 05 July 2022 embedded below: