Delhi HC | Hawa Singh Vs. Delhi Transport Corporation | 03 February 2012 | Section 47 of PWD Act 1995

Court:  Delhi High Court

Bench: Hon'ble  Mr. Justice Rajiv Sahai Endlaw,  Hon'ble Mr. Justice AK Sikri,  

Case No: W.P.(C) 7880 OF 2011

Case Title: Hawa Singh vs Delhi Transport Corporation 

Date of Judgement:  03 February, 2012

Author: A.K.Sikri,J

THE HIGH COURT OF DELHI AT NEW DELHI

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE

1. The petitioner herein joined the duties with Delhi Transport Corporation (DTC) as a Driver in the year 1980. He worked in that position till the end of 2006. However, in January, 2007, the petitioner developed serious heart ailment. He was treated in AIIMS. An Automatic Implantable Cardioverter Defibrillator (AICD) was implanted. The Doctor advised light duties to the petitioner. The petitioner‟s request for grant of light duty was declined by the respondent Corporation and its Medical Board and the petitioner was told that if he did not perform his duty as driver of passenger bus, he would be put on rest and thus would lose all his salary and allowances. The petitioner was put on rest instead of being granted light duty and the period of rest was repeatedly extended. The petitioner was not paid the salary etc. during the period for which he was put on rest.

2. This was done on the advice of Medical Board of the DTC. After examining the petitioner, the Medical Board refused to give him light duties finding that if he could not perform regular driving duties, he should be put „on rest‟. The petitioner kept on making representations for assignment of light duties to him. . When his request was not acceded to, he filed Writ Petition (C) 8129/2007 claiming full pay wages and compensation. In this writ petition, DTC appeared. On 15th September, 2008 statement was made by the DTC that it was willing to give light duty to the petitioner. Accordingly, the petitioner started getting light duties. The dispute therefore is from the date when he was put „on rest‟ till 15th September, 2008 when he was assigned the light duties. For the intervening period, he was not paid any salary. The writ petition was transferred to Central Administrative Tribunal (CAT) and the DTC was brought under the purview of CAT. The contention of the petitioner was that he was entitled to the benefit of Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 199 and as per Section 47 thereof, it was incumbent upon the DTC to give him other light duties or in any case release the salary to him. He relied upon the judgment of this Court in the matter of Kumar Bharat Prasad Narain Singh Vs. Airport Authority of India, 2005 (V) AD Delhi 513 wherein the learned Single has held that heart ailment or adverse condition is also covered by the provisions of the Disabilities Act. The CAT dismissed this petition on 17th July, 2009. Challenging that order, the petitioner filed writ petition in this Court in which orders dated 17th February, 2010 were passed granting liberty to the petitioner to file review petition. The said review petition was dismissed by the Tribunal holding that heart ailment resulting from a heart attack followed by implanting of an AICD does not find mention in the list of disabilities mentioned in the Act. The present writ petition is filed against the order dated 17th July, 2009 passed in passed in OA and order dated 24 th March, 2011 passed in the review petition.

3. At the outset we would mention that the words "disability" and "person with disability" is defined in Section 2 of the Act itself and is extracted below:-

"2 (i) "disability" means-

(i)blindness;

(ii)Low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability

(vi) mental retardation

(vii)mental illness;

"2(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority."

4. It is clear from the above that, only a person with disability of the nature suffering mentioned in Section 2 (i) of the Act is entitled to the benefit of Section 47 of the Disabilities Act. No doubt, in Kumar Bharat Prasad Narain Singh (supra) the learned Single Judge of this Court had held that even when a person suffers heart ailment, be as a consequence of his working with the employer, he would be entitled to the benefit of the Act. However, this judgment of the learned Single Judge was over ruled by the Division Bench in LPA 1601/2005 decided on 14th December, 2005. The Division Bench held that the definition of Disability and Section 2(i) is an exhaustive one and not an inclusive one and since heart ailment is not mentioned therein, a person suffering such ailments would not be treated as disabled within the meaning of Disabilities Act. In view thereof, the judgment of the Tribunal cannot be faulted with. It is clear that the approach of the Tribunal in the impugned order is in tune with the law laid down by this Court and, therefore cannot be faulted with.

5. We may mention here that the learned counsel for the petitioner had referred to the judgment of the Madras High Court in the case of G. Muthu Vs. Management of Tamil Nadu State Transport Corporation (Madurai) Limited (2006) 4 MLJ 1669. In that case, the appellant was also working as a Driver in the State Transport Corporation. Since Medical Board reported that he was suffering from "colour blindness" and hence unfit to work as a driver, the appellant was discharged from service on medical grounds. In this context, the question arose about the applicability of Disability Act. Section 2 (i) of the Act does not cover "colour blindness". However, the Division Bench of the Madras High Court held that liberal interpretation is to be given to the provisions of Section 47 of the Act and the term "disability" used in Section 47 can draw support not only in respect of defined "disability" contained in Section 2 (i) of the Disability Act, but will also encompass such other disabilities which would disable a person from performing the work which he held immediately prior to acquisition of such "disability" and thereby entitled him to avail the benefits conferred under the said provisions for having acquired such a "disability". In fact, for this very reason, the learned Single Judge had decided the said issue which has been over ruled by the Division Bench of this Court.

6. Since we are bound by the judgment of the Division Bench of our Court, it is not possible to rely upon the judgment of Madras High Court in this behalf.

7. We would be failing in our duty if we do not refer to the judgment of Division of this Court to which one of us (A.K.Sikri,J) was a Member. In that case, entitled Union of India and Ors. Vs. Suresh Kumar,(W.P.(C) 9443/2007 dated 17.12.2007) the aforesaid extracts from G. Muthu (supra) was referred to and relied upon. However, that was not on the interpretation of Section 47 of the Act but on the interpretation of "blindness" which is one of the disabilities mentioned in Section 2 (i) of the Disabilities Act. The "blindness" was held to include "colour blindness" and in that context, the aforesaid judgment of the Madras High Court in G. Muthu (supra) was relied upon. Insofar as issue at hand is concerned, it is squarely covered by the Division Bench judgment of this Court in Airport Authority of India Vs. Kumar Bharat Prasad Narain Singh (LPA 1601/2005 decided on 14.12.2005) and since judgment of a Coordinate Bench is binding, we find no merit in this writ petition which is accordingly dismissed.

8. There shall be no order as to costs.

ACTING CHIEF JUSTICE 

(RAJIV SAHAI ENDLAW)  JUDGE 
FEBRUARY 03, 2012 

Adjustment of compassionate appointment against disability quota

Dear Colleagues,

I hope you have heard of this case being represented by my colleague Jayshree Satpute on behalf of the victim. For the information of those who are new to this case one Ms. Mahjabi, a journalism student from Dehradun, was in Delhi on vacation and was at the Rajiv Chowk Metro station with her mother. On the fateful day of March 26 last year, as a train was entering the overcrowded platform, Mehjabi was pushed on to the tracks as commuters jostled to get ahead. She was about to complete her journalism course and was close to landing a job with a news agency.

The court in the instant case has suggested that the  DMRC should also consider the feasibility of grant of preference to the disabled, who have suffered their disability either in the course of the construction work for Delhi Metro, or while using the services, within the three per cent reservation granted to the disabled persons.

I am in perfect agreement with the suggestion that the DMRC as a model employer should consider preference to such disabled persons who have acquired their disability either in the course of the construction work for Delhi Metro or while using its services as a commuter. However, it should be done under some separate scheme on Compassionate Grounds appointments. 

I am strongly against any move to adjust such seats in the three percent reservation quota available to persons with disabilities under the Persons with Disability Act 1995. Such a move would further shrink the number of jobs available in Delhi Metro to the persons with disabilities. Already, the tendency of the Government bodies/public authorities is to read the minimum 3% reservation as "Maximum 3% reservation" which is doing more harm than good to the job prospects of the potential employees with disabilities. The tendency is to adjust even those who get selected on their own merit without using any relaxed standards though is strictly against the settled norms and the policy!

Therefore, I reiterate that rather than adjusting persons acquiring a disability as a result of metro construction work or while using metro services, it would be worthwhile to consider them under a special scheme of "Compassionate Grounds appointments" and not under the regular reservation quota of minimum 3% reservation. For the mandate of the Disabilities Act is loud and clear that it is minimum 3% and not maximum and any disability which is acquired due to in-actions or actions of DMRC can not be adjusted in the present quota.  Similarly the protected disabled employees under Section 47 of the Disabilities Act can not be adjusted in to the 3% quota when they are retained after acquiring a disability. Though they may become a part of this 3% in future promotions or recruitment.

regards

Subhash Chandra Vashishth, 

Advocate- Disability Rights

Here is the news report from Indian Express:

Frame policy to employ Metro accident victims: HC to DMRC

New Delhi

The Delhi High Court has asked DMRC to consider framing a policy to ensure employment for commuters or employees who lose their limbs while using the facility or during work.

The court observation came during a hearing of a petition filed by 23-year-old journalism student, Mehjabi, who had lost both her legs in an accident at Rajiv Chowk Metro station last year. She has been fighting a case demanding compensation or a job with DMRC (Delhi Metro Rail Corporation).

Justice Vipin Sanghi has sought an affidavit from the DMRC after observing that the Metro, as a model employer and a service-provider, should look into the aspects of providing a job to accident victims.

The judge said any accident during construction work, or while using Metro train services, severely diminished the quality of life of an individual and hence, the DMRC should consider framing a preferential policy.

As the first affidavit submitted by the DMRC in response to Mehjabi’s petition did not specifically deal with the aspect of the reservation for the physically challenged, Justice Sanghi asked the Delhi Metro to file an additional affidavit, placing on record the policy for grant of reservation to the disabled.

“The DMRC should also consider the feasibility of grant of preference to the disabled, who have suffered their disability either in the course of the construction work for Delhi Metro, or while using the services, within the three per cent reservation granted to the disabled persons,” said the court.

During the hearing, Mehjabi’s counsel Jayshree Satpute told the court that her artificial limbs also required servicing, and hence, the Metro should be asked to bear the expenditure.

Acceding to the request, Justice Sanghi asked the DMRC, which had borne the expenses for procuring the artificial limbs for Mehjabi, to also meet the costs of the first servicing of the artificial limb.

Mehjabi was pursuing a journalism course in her hometown Dehradun, and was close to landing a job with a news agency when she met with the accident on March 26 last year. She was in Delhi on vacation and was at the Rajiv Chowk Metro station with her mother. As a train was entering the overcrowded platform, Mehjabi was pushed on to the tracks as commuters jostled to get ahead.

No homes for mentally ill in Delhi despite Delhi High Court Order

Dear Friends,

The courts can only do only so much and can not take charge of welfare activities that Government is supposed to undertake. The Government also has to become pro-active and  take some responsibility. The experience so far has not been very encouraging with the Government. Its some spirited individuals and NGOs like Sudinalay who have been trying to reach out and manage some services for the mentally ill on behalf of the Government.

The undue suffering of persons merely because they can not voice their needs and demands is a slap on the face of the community and elected government. The news items below from Indian Express by Pritha Chatterjee highlights the sorry state of affairs on the human rights of persons living with mental illness with no family support that too despite clear cut directions to the  Delhi govt. by the High Court of Delhi.

Three years on, no homes for mentally ill

As many marked the World Mental Health Day, women treated for mental disorders at the Institute of Human Behaviour and Allied Sciences (IHBAS) in Dilshad Garden, continued to be in a temporary home for the mentally ill.

Started by the government after a Delhi High Court order in 2009, the temporary home in Kabir Basti, Malkaganj, is run by an NGO Sudinalay.

Originally an amphitheatre, built by the MCD in 1988, the complex had remained unused for decades. In 2009, while reviewing the condition of mental healthcare services, the court had directed the Delhi government to set up a 20-bedded facility in the area, with immediate effect. However, after providing land, the government failed to provide any finances or arrange for the repairs of the structure.

With a densely populated basti in front, and forests on both sides, the structure has no proper entry or exit gates. Security issues were of great concern as repeated instances of break-ins were reported. Hence, it took another court order, for the police to provide a 24X7 protection to the home. At the rear of the structure is a garbage dump, infested with mosquitoes, and where people defecate in the open.

It has dilapidated doors and windows, which do not close properly, and has a narrow balcony with only two-feet-high grills. “This is nothing. Many of these women are violent, I am always worried about one of them attempting suicide,” a caretaker said.

Of the 25 women, two are paralysed below the waist, two are HIV positive, and one has spinal tuberculosis.

The court had also directed the Health and Social Welfare departments of the Delhi government to set up and run 18 such homes — within a year. Further, an expert committee appointed by the High Court — consisting of Dr Nimesh Desai, director of IHBAS, Sreerupa Mitra Chaudhury, who runs Sudinalay and Dr Anchal Bhagat, consultant psychiatrist at Apollo Hospital — were to submit quarterly reports on the development of the homes. However, three years since, no such homes have been set-up.

Defending her department, Social Welfare minister Dr Kiran Walia said though the Rs 60-crore project has been approved by the Finance department, the Cabinet approval is still awaited. “Procuring land from the DDA, getting clearances from the Finance department, and the architectural design approved by Delhi State Industrial and Infrastructure Development Corporation (DSIIDC) took time,” said Walia.

Delhi High Court questions discrimination in Online Reservation in Railways

HC backs e-ticketing for disabled

Read the news directly from source:
Supporting the idea of e-ticketing facility for the physically challenged, the Delhi High Court on Wednesday issued notices to the Railways and the central government on a PIL demanding web reservation for them at concessional rates.

A Bench headed by Chief Justice Dipak Misra said the authorities must first display the sensitivity and that the technical requirements could be taken care of subsequently.

Admitting a PIL filed by advocate Pankaj Sinha, a visually challenged lawyer, the Bench directed the counsel for the Railways and Additional Solicitor General A S Chandhiok, appearing for the central government, to explain why facility was denied to physically challenged people.

The Bench dismissed the argument of the Railways counsel that the physically challenged were not given the facility of e-ticketing because of concessions they availed and that their documents regarding the disability were to be verified first.

“How can you place it as a justification? They can always be asked to show documents before they start or during travel,” the Bench observed.

The court will now hear the matter on May 18.

Deaf Can Now Legally Drive in India [Judgement included]

Court:              Delhi High Court

Bench:             Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna

Case No.:        W.P.(C) 10849/2009

Case Title:      The National Association of the Deaf & Anr Vs. Union of India

Date of Order: 14 Feb 2011

Case Brief:

Dear Friends,

While the activists and disability rights workers are actively engaged in writing, commenting, criticizing and suggesting on the New Disability Act, this success for the deaf people of India has silently knocked their doors. I have been closely following this case filed by Human Rights Law Network since September 2009 when it was admitted (click here to read my first post in Sep, 09) after an aborted attempt on an earlier date.  

I am so delighted to share with you all that after a wait of several months, (click here to read Nov 2009 post)  finally yesterday i.e. on 14th February 2011, in a landmark judgment benefiting 50 million people in the country, the double bench of  Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna, of Delhi High Court delivered their judgement  saying people with hearing impairment can also drive. "If they meet the necessary criteria and pass the test, they will be given driving licences and allowed to drive", the high court said. Hitherto, deaf were barred from appearing in driving tests as the archaic Motor Vehicles Act considered them a source of danger to the public.

A bench headed by chief justice Dipak Misra said, “Even if an applicant is totally deaf, he has to be called for a test. Even if he applies for a learner’s licence without a medical certificate and clears the test, he should be granted a learner’s licence." 

You will notice that the judgement doesn't speak a single word against the Union of India nor against the existing system of issuing licences, yet beautifully carves out a way that deaf people in India can not be discriminated against merely on the basis of their disability!

The Question in Form 1-A [which deals with medical certificate and relates to Rules 5(1), 5(3), 7, 10(a), 14(d) and 18(d)] of MV Act 1988  that was filled up by the doctor,] i.e. "In your opinion, does the applicant suffer from a degree of deafness which would prevent his hearing the ordinary sound signals? " has become irrelevant in light of this judgement! 

The Hon'ble Judges have, without making any comment on the  stand /defence of the Government of India in the case, simply reproduced the same to amuse the readers. I am reproducing  the  major defences of the Government of India for your amusement. For your information these defences are  based on a conclusion of a meeting of all relevant officials from various ministries including Road Transport, Health etc:

(i) Indian roads have far more hazards than in those countries which have been referred to in the petition.  This is evident from the fact that there is highest number of road facilities worldwide occurring due to road crash in India.  Indian roads have dense vehicle population.  The pattern of driving is also mix.  Besides, there is also lack of traffic discipline.  While using the roads, it is predominantly required to give audio signal to the vehicles around to caution other drivers or for giving way.  Such situations are not seen in developed countries.
(ii) Use of rear view mirror may not be a full proof solution because vehicles often are not fitted with such mirrors on both sides. Even if they are fitted on the vehicle, the users often fold them back.
(iii) In case of hilly roads, it is mandatory to blow horn on the sharp as well as blind corners.  The driver would be in a dangerous position if he is unable to hear the audio signal.
(iv) While driving the vehicle, inside noise, such as running of engine, tyre noise etc. is an indicator for the health and safety of the vehicle.  The deaf person will be in an unsafe situation because he will not be able to gather these signals.
(v) Luxury vehicles are often fitted with audio systems.  Loud music inside the vehicle may pose unsafe situation but purely by the choice of the driver and hence, cannot be made a ground for allowing deaf persons to drive.
(vi) The UN Convention on Rights of Persons with Disabilities does not qualify the extent of deafness.
(vii) In developed countries, there is a system for imparting training to deaf people in order to obtain driving licence.  There is no such system prevalent in the country.
(viii) International Driving Permit is valid for one year only and thereafter even a foreign national is required to obtain the driving licence afresh as per the existing rules and regulations in the country.  Thus, analogy given in this regard between the foreign national and Indian national is not correct.
(ix) Every year a large number of accidents took place in the country involving motor vehicles on roads.  Many of them prove to be fatal.  During the year 2007 alone, there were around 4.8 lakhs road accidents which killed around 1.15 lakh people and injured more than 5 lakhs person in India.  While the Government has been making all efforts to bring down the rate of accidents substantially, it cannot afford to take the risk of endangering the lives of deaf drivers as well as other road users.

And finally this Committee opined:  "Hearing levels up to 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level up to 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle.  Persons suffering with severe and persistent vertigo should not be issued a driving licence."

This was like only reiterating what existed earlier!

The Judges in the operative para of the judgement categorically stated the statutory requirement,  "However, we are obliged to certify that if an applicant is totally deaf, he has to be called for the test if he applies for a learner‘s licence without the medical certificate and if he passes the test as required under Rule 11, he  shall be granted the learner‘s licence as that is the statutory requirement.   Similarly, if a person belonging to the said category satisfies the necessary  criteria, he shall be allowed to obtain the licence."

The judges refrained from making any comment on the important issues raised in the writ petition or criticizing the government action. Also they refused to take liberty to enter the domain of legislature on the prayer of changing the policy on the subject and said insegregable facet of the basic structure of the Constitution of India. 

This gives sufficient indication to the Government of India to appropriately change their discriminatory and restrictive practices against persons with hearing impairment. We hope the Government will take appropriate steps to set the malady right.

At my personal level, being a lawyer, I was looking for some strong words from the Hon'ble Court on the conduct of the so called committee of technical people who opined that the deaf can be danger to public without even appreciating the documents on record! However, the court did not comment on any issue that could have directly targeted any government official.

So, silently the purpose has been achieved. I hope the systemic changes will also take place and Deaf people will not be harassed while seeking valid licences.  

Now a passing remark from a stakeholder, "At least now deaf people would be able to drive legally with valid driving licence. Who bothers about going and taking a driving test, when driving licences can be bought through middlemen without even going to RTO in other states, if not in Delhi!"

The jobs doesn't end here. After this judgement, the major work is to spread the word around about this judgement and get the relevant rules changed in all states and union territories across the length and breadth of India. The DPOs and activists have this major role to perform. I want to congratulate my senior colleague Shri Collin Gonsalves, Senior Advocate, Mr. Pankaj Sinha, Advocate and their team for so successfully taking up this case which is almost like re-writing the rules of equality - at least for deaf people of this country. I am sure, my friend Arun Rao and friends from National Association of the Deaf would agree to this. Congratulations to one and all!

regards

SC Vashishth

Advocate, Disability Rights

Click here to read the judgement dated 14 Feb 2011 or read the embedded judgement below:

Delhi High Court issues notices to DU colleges on non implementation of PWD Act.

Notices to colleges for not adhering to disability quota



New Delhi: The Delhi High Court recently issued notices to eight colleges run by the central government for not implementing the disability quota for teachers despite directions.


A division bench of Justices Sanjay Kishan Kaul and Ajit Bharihoke asked the colleges to file their reply by April 16 and state why their orders were not complied with.

Bharti College and Lady Harding Medical College are two of the eight colleges that have not complied with the order.

Colin Gonsalves, counsel for NGO Sambhavana Trust, said, "There are only 39 colleges in Delhi University (DU) that have complied fully with the disability quota, 12 colleges have partially complied and 31 colleges have not complied at all."

The court was hearing a public interest petition seeking an implementation of the law on quota for disabled candidates for teaching posts.

Sambhavana Trust, a registered society of disabled persons, had alleged that the varsity and its colleges had not implemented the law even 15 years after the Parliament passed it and six years after the court's direction in this regard.

It was also submitted that the university, after enactment of the law, had passed a resolution in 1996 to provide three percent reservation for the disabled, out of which two percent was to be given to the visibly handicapped and one percent to orthopaedically handicapped. IANS (This is miquoted in the media, the correct version as 1.5% to the Visually Impaired and 1.5% to the Orthopaedically Impaired candidates)

When Deaf People could drive all over the World why not in India?

Dear Friends,

No wonder people often exclaim on the road "are you deaf?" when they don't get a side while overtaking another vehicle. Well, this long settled notion is going to wither away in India while we are moving towards more equalitarian and rights based society with this Writ Petition not only being admitted by the Delhi High Court on the petition filed by my colleagues at HRLN, more particularly Mr. Pankaj Sinha, the young lawyer, but also calling upon the Government of India to respond as to why this Writ not be issued and made absolute in favour of the petitioners.

You will be surprised to know that earlier also such attempts were made at Delhi High Court by the NGOs but the petitions were dismissed at the admission stage itself. But this time, a well drafted and well researched document was prepared by the lawyers and also perhaps first time articles of UNCRPD were used to articulate the injustice being meted out to this segment of the disabled fraternity in India.

World over the deaf are allowed to drive vehicles like any body else with some additional conditions of an extra back view mirror. This is with the scientific rationale that driving involves almost 80-90% visual activity and Deaf could be safe drivers without any risk to fellow travellers. Additionally with many new gadgets coming in the market to compensate the loss of hearing with other sensory organs, this discrimination is of course against the very principle of equality that Constitution of India grants to all its citizens including those experiencing hearing difficulties.

The Writ Petition being a PIL (Public Interest Litigation) is going to have far reaching consequences for the Ministry of Transport for they have to evolve now to address this issue and change all their laws, rules, procedures, forms, medical statements etc to include this segment.

I congratulate NAD (National Association of the Deaf), Advocate Pankaj Sinha and Senior Advocate Collin Gonsalves and 50 million deaf Indians on this success. We have moved a step further towards realising equality for all in India.

Those of you who are interested in getting the Petition may click here.

Click here to read in newspaper view of HT

The news coverage:

'Should deaf drive? Centre says yes; HC to take call'

Why should an Indian deaf national be denied this right? 

COLIN GONSALVES, Senior lawyer

NEW DELHI:

Here's some good news for around 50 million hearing impaired people in the country.

The Centre has submitted before Delhi High Court that it is considering allowing those suffering from hearing disability to obtain a driving licence.

The archaic Motor Vehicles Act prohibits the deaf from obtaining a drivers' licence, saying they could be a "source of danger to the public".

The court is hearing a public interest litigation (PIL) by the National Association of the Deaf (NAD) seeking a direction to quash the requirement of having "no hearing impairment for the issuance of driving licence".

A Bench of Chief Justice Ajit Prakash Shah and Justice Manmohan on Friday recorded the statement by Additional Solicitor General A.S. Chandiok appearing for the Centre that they are considering all the relevant materials and will make appropriate recommendations on issuing driving licences to the hearing impaired. The process is set to be completed in four weeks.

Road Transport and Highways Ministry counsel Jyoti Singh said medical experts are of the view that those who can hear sound up to 60 decibels with the use of hearing aid can be permitted hold a driving licence for private vehicles, while those with hearing level up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.

Singh said a specially constituted high-powered committee of the ministry will soon meet to discuss the issue.

DELHI COPS BACK PLAN

The PIL also draws strength from views expressed by Delhi Police on its website that deafness does not render one incapable of driving safely. "There is no reason why deaf people should not be allowed to drive,"the website says. But it suggests use of additional rear-view mirrors by this category of drivers The NAD said the deaf are allowed to drive all over the world, except in 26 countries. In the UK, Australia, Germany, Belgium, Thailand and Malaysia authorities insist on special double rear-view mirrors. In Malaysia and Sri Lanka this category of drivers are to indicate the handicap by putting a sticker on the back of the car so that other drivers do not hoot at the driver. But they are not allowed to drive commercial or passenger vehicles.

Senior lawyer and human rights activist Colin Gonsalves, who represented the NAD, told the court that discrimination against the deaf in India was a clear violation of Article 14 of the constitution.

"A deaf person with an international driver's licence is able to drive in India, then why should an Indian deaf national be denied this right? The Constitution demands equality for all before the law," he said.

Reservation on single post would amount to 100% Reservation

Dear Friends,

Many of us in the Disability sector believe that 3% reservation for the PWD can be claimed on all posts including single posts. However, the courts have several times clarified that reservation on the single posts would be discriminatory to others and is against the provisions of Constitution of India as it will tantamount to 100% reservation.
regards

SC Vashishth
To read from source, click here

Delhi HC dismisses plea for reservation to single post of VC
9/16/2009

The Delhi High Court dismissed the petition of a person who sought the court’s intervention to grant disability reservation to him in the appointment of Vice-Chancellor (VC) in newly-formed 15 universities.

A bench, comprising Chief Justice A P Shah and Justice Manmohan, dismissed the petition as withdrawn as there was only one post for the VC which could not be covered under any reservation clause.

Petitioner P R Ramanujam, who is suffering from locomotive disability and working as a professor of distance education and director of staff training and research institute in IGNOU, applied for the post of first VC in the newly formed 15 universities established under the Central University Act, 2009.

Mr Ramanujam contended that there was a statutory mechanism providing three per cent reservation to persons with disabilities, therefore, his name should be considered under the reserved category. Additional Solicitor General A S Chandhioke and Government Standing Counsel Ravinder Agarwal told the court that in this case reservation of any type could not be granted because there was only one seat for the post of VC and if reservation was granted, it would mean 100 per cent reservation. On this, the petitioner withdrew his petition.
UNI

Delhi High Court directs Union of India to amend Insurance Rules for the Disabled Employees

Dear Friends,

Many govt. employees were voicing their concerns on the in equal treatment meted out to them by the Govt's Postal Life Insurance Scheme where with a normal premium, the non-disabled employees were given a cover up to Rs. 5 lac while the disabled employees were given merely a cover of just Rs. 1 lac, that too with an increased premium and lot of hiccups.

Citing UNCRPD and equality principles that Constitution of India guarantees to all its citizens - including those experiencing disabilities, the matter was filed before Delhi High Court by Advocate Pankaj Sinha (an emerging lawyer with blindness who currently work with Human Rights Law Network, Delhi).

The Court not only admitted the petition on the first date itself, but also directed the Solicitor General to appear in person and respond to the discrimination. I am so happy to share this news with you today - not only because this is a welcoming move by the Delhi High Court where a case is being fought citing UNCRPD but also because Mr. Pankaj Sinha has been my associate in the past and I am proud to have groomed him in the human rights and especially disability rights discourse - to which he was initially never inclined as he always wanted to be a criminal lawyer.

Cheers to Pankaj and Cheers to the Human Rights Law Network (read Mr. Collin Gonsalves)! and also to Mr. Rajiv Raturi, Director- Disability Rights Initiative, HRLN. Would post the detailed judgement once the final verdict is delivered by the Court.


Here is the detailed article by an enthusiast reporter Ms. Sangeeta Sharma from United News Of India(UNI). She supplements that the centre had sought 6 weeks time to ammend the concerned rules on the 07 October 09 (the date of hearing). Ms. Sangeeta can reached at snguni@gmail.com.

regards

S.C. Vashishth, Advocate

Delhi HC directs Centre to amend its insurance rules for disabled

8/31/2009

The Delhi High Court directed the Central government to reconsider its postal insurance rules and to treat the persons with disability at par with other people. Appearing on behalf of the government, Solicitor General (SG) Gopal Subramanium assured the court that the government will take broad base consultation with experts and also take advice from the insurance regulator and draft a fresh policy which will have no disparity for the disabled.A bench comprising Chief Justice A P Shah and Justice Manmohan directed the government to file their reply to the court within four weeks as to what will be their stand in this regard.

Fixing the matter for October 7, the court told the SG to revisit the Postal Insurance Policy as they have taken all disabled under one category. "When fixation of the policy is to be done, then you must consider the distinction between various types of disability as well as mortality factor caused by it. Moreover, life expectancy and other factors should also be taken into account," Justice Shah said.

A petition in this connection was filed by one Vikas Gupta, an Assistant Professor in Department of History, Delhi University, who is visually impaired. In his petition he said,"Rules of the postal insurance for government employees is discriminatory as it gives a cover of Rs 5 lakh to a normal person, but a handicap has to pay much more premium and gets an insurance cover of Rs one lakh only."

The Lawyer for the petitioner Mr Pankaj Sinha, also a visually impaired, and lawyer Ms Roma Bhagat told the court that Article 25 E of United Nations Convention On Rights for Personal Disability (UNCRPD) prohibit discrimination in the insurance policy. Ms Bhagat told the court that their research has shown that those who are hearing impaired, visually impaired or orthopedically impaired are less prone to accidents as they have less mobility and are more cautious.

She told the court that there is no data available in India to show the cause of death as the death certificate does not mention it. Also, there is no data to suggest that disabled are more prone to accidents so why they have to pay more to get a less insurance cover, Ms Bhagat said.

No Teachers for Disabled Students in MCD Schools!

Dear Friends,

For me, this report means, all the efforts of RCI (Rehabilitation Council of India) are taking overseas flights for jobs and this brain drain is surely going to cost us dearly. The manpower trained at the cost of ex-chequer is not being used in India except in a handful NGOs, grassroot organisations and Govt. schools etc. Isn't it an irony that even today we don't have any facility of educating a child with disability in a mainstream school in a city like Delhi, forget about a rural school in Jalpaiguri District of West Bengal!?

If I correctly remember, in my earlier posts of 02 January 2009 and 22 December 2008, there was a proposal from Delhi Government that they would open a Model school in each district both for MCD schools and Delhi Govt. Schools so that the needs of students with various disabilities could be met. However, there seem to be no update publicized by the department nor there is any recruitment of special educators by the Education Department of Delhi Govt. This is no excuse and the Court is rightly shocked over such lapses.

Not only there is an urgent need to sensitize & train mainstream teachers about needs and abilities of children with disabilities but also the Principals, vice principals, Headmistress/ headmasters, Education Officers and supporting staff who often are found unaware about such issues. Ignorance can not be allowed to be a blessing in disguise for them. I have personally received messages from teachers whom I sensitized & trained at DIETs (SCERT) on Inclusive education and accessible school infrastructure, that their Principals / Viceprincipals /Headmistresses were not willing to take in disabled students and sending their parents to find admissions in special schools nearby. There is an urgent need to tackle such a trend among the senior staff at schools.

Appointment of Special Educators in all MCD Schools/ Delhi Cantonment Schools & Delhi Administration Schools will boost the confidence of the School Managers and staff to readily take in more students rather than discouraging them to go away.

Also the process of extending support to such students need to be made more smoother. Currently, as per my information, the concerned class teacher has to line up in the office of the District Education Officer to get the concessions and other facilities for the child with disability in his class while leaving the class of 50-60 unattended students. This is surely discouraging from all angles. May be the Secretary-Education, Govt. of Delhi needs to look at this seriously.

regards

Subhash Chandra Vashishth

Advocate-Disability Rights

09811125521

Here is the shock that nerved the High Court of Delhi :

MCD schools must have teachers for disabled students: HC

HT Correspondent, Hindustan TimesEmail AuthorNew Delhi, May 28, 2009

For 12-year-old Avinash, a visually impaired student of an MCD school in Jahangirpuri, it was smooth sailing from classes I to IV. But since two years, he has been stuck in Class V, as his promotion now is based on performance.

“What could he do? All four years he just came to school and went back and could do nothing,” says lawyer Ashok Aggarwal.

He is pleading in the High Court for a direction to government and MCD schools to appoint special teachers for differently-abled students. “There was no teacher in the school who knew the Braille technique,” Aggarwal says.

As per the MCD’s own admission there are 10,600 such students in schools across Delhi.

A shocked Delhi High Court on Wednesday ordered the MCD and Delhi Government to take immediate steps to appoint adequate number of such teachers.

The court was hearing a PIL filed by Social Jurist, an NGO that had contended that 1,000 schools run by the Delhi government and 1,800 MCD schools do not have trained teachers for disabled students.

Click Here to read from source

Delhi HC: Directs appropriate Govts to take adequte steps within the limits of their economic capacity and development to implement section 46 of PWD Act 1995 to ensure Accessibility & Barrier Free Environment

Court: Delhi High Court

Bench: Hon'ble Mr. Justice T.S. Thakur, Hon'ble Ms. Justice Aruna Suresh

Case No: WP (C) 812 of 2001

Case Title: Javed Abidi Vs. Union of India & Others

Date of Judgement: 21 January 2008

Act: The Persons with Disabilities Act 1995

Subjecct : Accesssibility; Barrier Free Environment for persons with disabilities; Implementation of Section 46 of The Persons with Disabilities Act 1995

Brief: 

Mr. Javed Abidi filed this writ petition before the High Court of Delhi. He was aggrieved on the removal of temporary wooden ramps from the Red Fort, Qutub Minar, Humayan’s Tomb, Jantar Mantar and other similar monuments of historic importance. These ramps were fabricated and fixed by the Ministry of Social Justice and Empowerment and Archaeological Survey of India during the visit of Mr. Stephen Hawkins, the renowned physicist (Wheelchair User), who wanted to see these monuments.

After his visit the Archaeological Survey of India decided to remove these ramps. Abidi filed the case seeking justice in accordance with Section 46 of the Disabilities Act, 1995, which mandates ramps in public places for wheelchair access. The petitioner urged the Court for directing the respondent not to remove the wooden ramps and instead to erect permanent ramps ensuring barrier-free access to persons with disabilities. 

Read the Judgement: