Disability angle in Nursery admission norms - HC issues notice to centre

Nursery norms: Centre to clarify on disability quota
TNN | Feb 26, 2014, 02.19 AM IST

NEW DELHI: The High Court on Tuesday asked the Centre to clarify if Delhi's schools still have the discretion to provide admissions in nursery classes to disabled kids, despite the Lieutenant Governor's guidelines clubbing them with children of economically weaker groups (EWS).

A bench of justices S Ravindra Bhat and R V Easwar gave a day's time to the Centre to explain after the latter told the court it is up to the Delhi government to make guidelines for providing any benefit to disabled kids since the city government has enough "elbow room" despite the LG's order.

But HC was not satisfied and questioned the Centre's stand saying "no elbow room is visible" under the guidelines or the Persons with Disabilities Act. It added that if no proper guidelines are framed for providing relief to disabled students, the "discretionary approach" of schools will get an "escape route".

"If you (Centre and Delhi governments) don't come out with guidelines, it could lead to an escape route to the discretionary approach of schools," the bench said and kept the matter for Wednesday after the counsel, appearing for the Centre, said its officials would be present in the court to explain the government's stand.

The bench was hearing a PIL, by Pramod Arora, father of a child with special needs, challenging the LG's nursery admission guidelines to the extent it clubs disabled children with kids from EWS group. His petition also seeks 3% reservation for disabled kids in the nursery class.

During the day's proceedings, the Centre said it is for Delhi government to evolve guidelines on the issue but the court pointed out only when the Centre asks the state government to do so will it acts.

It also asked the Centre to "see what is possible under the Act", whether 3% reservation is possible and if yes, how to implement the same.

Meanwhile a group of parents on Tuesday also challenged the points for interstate transfer in the new nursery admission guidelines. A bench of acting Chief Justice and Justice Siddharth Mridul sought a reply from the state government and posted the case for Thursday.

Source: Times of India

Delhi HC questions MSJE why disabled can't function as surgeon

Court questions 3% reservation for differently-abled MBBS degree holders

Sunday, Jul 28, 2013, 12:59 IST | Place: Delhi | Agency: DNA

Ayesha Arvind

The Delhi High Court has questioned the 3% reservation for differently-abled persons holding MBBS degree only in non-surgical posts. While hearing a plea pertaining to such an appointment, the Court asked, "Does the Centre feel that differently-abled persons with valid MBBS degrees are unfit to perform their duties as doctors in surgical procedures?" The Court has sought a clarification from the ministry of social justice and empowerment in this regard.

A bench of Justices Pradip Nandrajog and V Kameswar Rao has also directed the chief commissioner for persons with disabilities to appear in the Court on Monday. The Court order follows a plea in which an ENT surgeon has challenged the appointment of an orthopedically-handicapped (OPH) candidate for the same post in AIIMS for which he too had applied.

The surgeon, Dilip Samal, had applied for the post of senior resident/demonstrator at AIIMS in July last year under the OBC category. He challenged the appointment of an OPH candidate after his RTI query revealed that the selected candidate had scored less than the qualifying marks in written test. Samal was later informed by the AIIMS authorities that as per procedure those who qualify under the OPH category are adjusted in the respective category, irrespective of the marks and merits in the entrance exam.

Samal then approached the Central Administrative Tribunal (CAT) for relief. In January this year, the CAT had set aside the selection of the OPH candidate Mohammad Mubashshirul Haq. It had ruled that the AIIMS had not notified any relaxed standards of suitability for the OPH candidates while inviting applications or any time thereafter. AIIMS, in turn, challenged CAT’s ruling before the High Court.

The Court took note of the fact that Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the DoPT guidelines mandate that authorities first identify posts to be reserved in medical facilities for persons with disabilities and specifically earmark them.

And that these seats cannot be adjusted with vacancies under other categories.

“Two issues arise out of the plea. The first being whether it is mandatory in law to identify seats reserved for differently-abled persons in medical specialities when applicants are invited from eligible candidates. The other issue which arises is a directive issued by the ministry of social justice and empowerment, government of India, requiring reservation in the medical field only in non-surgical posts,” the Court said.

“It is the second issue which troubles us more than the first. Prima facie, we find it strange that the ministry of social justice and empowerment would be of the opinion that differently-abled persons per se would be unfit to perform duties as a doctor in a discipline which requires surgical procedures to be performed,” it said.

DNA India

Colourblindness no ground for denying promotion - Delhi High Court

Expressing displeasure over the central government's inaction, the Delhi High Court has directed the authorities to treat CRPF personnel with colour blindness on par with others for promotion.

A bench of Justice Gita Mittal and Justice Deepa Sharma said in a recent order that the authorities "have proceeded arbitrarily" in the cases of the colour blind personnel compelling them to repeatedly approach the court.

Earlier, the court decided the issue relating to colour blindness in serving Central Reserve Police Force (CRPF) whose colour blindness was discovered at the time of medical examination for promotion.

The court said that such personnel "would be entitled to full benefits of promotions as is extended to those who do not suffer from colour blindness".

However, despite "clear directions of the court, the authorities were not only refusing promotion but were proceeding to board out such personnel who were discovered to be suffering from colour blindness".

The court said the authorities had "miserably" failed to abide by the specific directives of the court.

The observations of the court came on the petition of Suresh Ram, a trooper whose promotion was stalled following the discovery that he was colour blind.

The court directed the authorities to promoted Ram from the rank of constable to head constable with all benefits, including seniority.

Sources: Business Standard

Disabled Students must get same admission benefits as SC/ST, rules Delhi HC

Court:          Delhi high Court

Bench:         Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw

Case No.:     Writ Petition (C) No. 4853 of 2012 

Case Title:    Anamol Bhandari Versus Delhi Technological University

Date of Judgement:  12 September 2012

Brief:

In a path breaking judgement, a Bench of Delhi High Court has held that  the people with

disabilities are equally socially backward, if not more, as those belonging to SC/ST categories and therefore, as per the Constitutional mandates, they are entitled to at least the same benefit of relaxation as given to SC/ST candidates.

This puts to rest the debate of whether Constitutions favours only the SC/ST and not disabled since Disability is not specifically included in the Constitution.

Holding that people suffering from disabilities are also equally socially backward, if not more, as SC/ST candidates, the Delhi High Court has directed the Delhi Technological University (DTU) to provide the same concession in marks for admitting disabled persons as applicable for SC/ST candidates.

“We hold that the provision of giving only 5 per cent concession in marks to persons with disabilities (PWD) candidates as opposed to 10 per cent relaxation provided to SC/ST candidates is discriminatory and PWD candidates are entitled to same treatment,” a bench of Acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw said.

The court’s order came on a petition by Anamol Bhandari, a physically disabled student, who challenged the disparity in treatment between the two categories.

In his petition, Bhandari said he had passed his CBSE exam with 52.66 per cent. He said DTU had fixed its cut-off for general candidates at 60 per cent but had provided a relaxation of 10 per cent for SC/ST candidates and 5 per cent for PWD candidates.

The petitioner said though he had cleared his All India Engineering Entrance exam with a rank sufficient to gain admission to DTU, he could not get admission on the basis that his Class XII marks did not meet the cut-off.

He said if the relaxation given to PWD candidates was on  par with SC/ST candidates, then he have been eligible for admission.

The university contended that they were free to frame their own admission guidelines, being an autonomous body. It argued that the petitioner was aware when applying that he would be eligible for a 5 per cent relaxation.

However, when the bench asked the counsel for DTU whether there was any rational basis for fixing the limit of relaxation at 5 per cent for PWD candidates, no clear answer was given and the counsel merely said it was a “policy decision”.

For detailed judgement passed on 12 September 2012 in this case titled Writ Petition (C) No.4853 of 2012 ANAMOL BHANDARI Versus Delhi Technological University, please click here or read the Order embedded below:

 

Disclose psychiatric info under RTI ? Yes, says CIC; No, says HC

Dear Colleagues,

While we all agree that each medical history and document is confidential and carries sensitive information about the patient undergoing treatment and can not be revealed to a third person. However, by simple logic that its my treatment process, I have full right to know about it! How can I be denied of my right to access my own treatment document?

We have had several examples where persons were forcefully admitted in to mental institutions since their spouses or  family members observed certain "symptoms" and the patient never came out since there exist no process that can be initiated by the patient himself even if he is all right. Such methods have often been put to (mis)use by husbands against the wives to settle matrimonial cases and in many other cases, by other family members to grab the control on the property of the victim.

In the instant case before the Delhi High Court, the High Court has overruled the decision of the Central Information Commission that had directed the hospital IHBAS to provide the info to the patient. The judiciary need to be more sensitive and aware of the rights of persons with disabilities given India's commitment to UNCRPD and the regime of  right to information besides the Indian Constitution that assures to all citizens equality before law. The document related to medical (psychiatric) treatment must be provided to the patient.  Could they have done same with a heart patient or a kidney patient?

While the hospital may refuse husband or other family members citing confidentiality, the patient has the first right to access her treatment documents and she has a right to second medical opinion on the basis of the treatment record. Its not the property of the hospital!

Here is the news from Indian Express.

Disclose psychiatric info under RTI ? Yes, says CIC; No, says HC
Pritha Chatterjee : New Delhi, Tue Apr 24 2012, 


Do psychiatry patients have the right to access records of their treatment? While the Central Information Commission (CIC) directed a mental health hospital to provide this information to a patient, the hospital has moved court citing confidentiality.

The Delhi High Court has given the Institute of Human Behaviour and Allied Sciences (IHBAS) a stay order against disclosing the information till the next hearing in September.

The case pertains to a 32-year-old married woman. She was admitted to IHABS in April 2011 by the hospital’s mobile health unit from her Gurgaon home, after her husband approached hospital with her “symptoms”.

According to Dr Nimesh Desai, director of IHBAS, “Confidentiality of psychiatric information — which includes all information disclosed by different parties related to the patient for treatment purposes — is a very fundamental concept. It is something every psychiatrist promises his interviewees verbally. Unfortunately, till date, India does not have a legal provision regarding this. The unique nature of this information — which includes historical information of the patient, his or her recollections, fantasies, feelings, fears and preoccupations from the past as well as in the present — distinguishes it from other medical records.”

The patient was discharged after four days and has since been staying with her mother in Bhopal. After her discharge, she filed an RTI seeking “the basis for my admission, doctor’s observation, and clinical examination reports, and doctor’s observation...”

Meanwhile, the patient’s husband, too, filed an RTI application, seeking the reasons of his wife’s discharge, “without my information.”

In both cases, IHBAS authorities stated that “the information sought was provided by the patient and her husband, which is sensitive/confidential in nature.”

“The need for discretion in disclosing psychiatric information is compounded in cases like this, where there is a possible marital discord and each seeks such history to use against the other,” Dr Desai said.

The December 2011 CIC order by Information Commissioner Shailesh Gandhi stated that while the hospital was exempted from disclosing treatment records to anyone other than the patient, “these precedents are not relevant when the information is being sought by the patient herself”.

Arguing against this, in their writ before the High Court, IHBAS said, “that every party disclosed information in confidentiality to the psychiatrist and the hospital should not give it away to anyone, including the patient.”

The disclosure of information contained in psychiatry case records would discourage the patients and their relatives to furnish personal and sensitive information and they would prefer to withhold such information, which would largely affect the treatment,” the writ stated.

Meanwhile, the patient’s family said they were “exploring legal options, on this violation of the CIC order.”

Source: Indian Express

Delhi High Court- Extra Premium or Reduced Insurance Cover, both discriminatory against Disabled [Judgement Included]

Dear Colleagues,

Refer to my earlier posts on 02 Sep 2009, 09 October 2009 and 21 January 2010 on the issue since the matter has been pending before the Delhi High Court. There were several occasions that the Court was about to pronounce judgement however, Union of India bought time on each hearing with a promise that they are amending the rules to remove the discriminatory practices against the persons with disabilities (read employees) in insurance sector and dragged the case to 2012. However, at the end, the court got infuriated the way the Government turned turtle on their own statement before the court and tried to justify the discrimination of extra premium.

The brief background of the case

In the instant case, the petitioner Mr. Vikas Gupta, through a public interest litigation, filed by Mr. Pankaj Sinha, a lawyer with visual impairment from Human Rights Law Network, brought to the notice of the court that the Postal Life Insurance Policy issued for the benefit of government employees was inherently discriminatory against employees with disabilities. It allowed the maximum sum insured for employees with disabilities to only Rs. 1 lac while their non-disabled counterparts enjoyed a maximum insurance cover of 5 lacs. Not only this, the employees with disabilities were paying a higher premium than those without disabilities.

Thus through this litigation, the petitioner sought parity in the maximum sum assured and premium charged from the employees with disabilities in comparison to the employees without disabilities. When the matter came up for hearing and notice was issued, Postal Life insurance realizing their follies, issued a notification during pendency of the petition raising the maximum insurance coverage for employees with disabilities to that of non-disabled employees i.e. up to Rs. 5 lakhs. However, they continued to charge extra premium from the employees with disabilities.

The petitioner argued that the extra premium charged was without any scientific justification. When the court sought explanation from PLIC, the Additional Solicitor General stated before the court that they do not discriminate on the basis of disability and there is no extra premium charged.

However, later Union of India turned turtle on their statement and justified the extra premium from the employees on the blanket ground of disabilities and argued that the Insurance Policy was a contract between the insurer and the insured. That in the insurance business a pool was created through contributions made by persons seeking to protect themselves from common risk. Premium was collected by insurance companies which also act as trustee to the pool. Any loss to the insured in case of happening of an uncertain event was paid out of this pool. It worked on the principle of risk sharing. Therefore, prejudice would be caused to the normal insured persons in case of any casualty of the disabled persons. As disabled persons are more prone to accidental risks as compared to normal persons and the amount which is to be paid to the family of the deceased would be paid out of the same pool.  Hence, it is justified to charge extra premium from the employees with disabilities. They also argued that extra premium payable by the disabled person is marginally different from the premium payable by normal persons. Further they justified the extra premium on the ground that the extent of handicap differs from one person to another and that they would continue to charge differential premium decided upon the health profile of the individual proponent.

The petitioner argued that the extra premium clause has no scientific base nor can be justified by any legal enactment or any empirical study. On the contrary, such a standalone stipulation for Persons with Disabilities in form of a special scheme in the Postal Life Insurance for Government employees was discriminatory, non-inclusive, unjust and violates principles of natural justice of equity and fairness and above all it ran against the mandate of the Persons with Disabilities Act 1995 and the UN Convention on the Right of Persons with Disabilities that India is a proud signatory to. Further, it specifically violated Articles 3 and 25(e) of the UN Convention.

The petitioner accepted the rationale of PLI to the extent that any loss to the insured in case of happening of an uncertain event is paid out of this pool and that it worked on the Principle of risk sharing. However the petitioner strongly refuted that disabled persons are more prone to accidental risks as compared to normal persons. On the contrary, the petitioner argued, there was no empirical study or data to support or substantiate such a baseless, false and biased view which only reinforced the stereotypes about persons with disability and their proneness to accident.

Petitioner argued that the right to equality and non-discrimination were inalienable rights which couldn't be taken away by any contract and charging extra premium from employees with disabilities was a direct discrimination with them on the basis of disability which was in direct conflict with Article 2 of UNCRPD.

The petitioner also argued that the justification of health profile put forward by the respondents was faulty for they seem to treat disability as a negative health profile. It was stressed that living with disability was distinct from suffering from a life threatening disease, while the respondent seemed to consider both as synonymous. An employee with visual impairment or with hearing impairment or with neurological impairment also enjoyed good health like anybody else. Therefore, an employee living with a disability would not mean that he / she was suffering from a disease and prone to life risks or susceptible to die prematurely. Such a conclusion on the part of respondent was illogical, arbitrary, had no empirical base and without any understanding of disability, hence, such a conclusion was required to be struck down.

The judgement 

Hon’ble High court in the instant case agreed that charging extra premium from employees with disabilities was indeed a discrimination on the basis of disability and therefore through this remarkable judgement directed the postal life insurance to provide equal insurance coverage and not charge extra premium from the employees with disabilities.

• Download the Vikas Gupta Vs. UOI judgement [PDF 381 KB]  
• For copy of the interim notification raising the maximum insurance amount to Rs. 5 lakh, [word file] 

The Road Ahead

I see this judgment  as a milestone in the disability rights movement with far-reaching implications not only in India but also beyond India and especially in European countries where the Actuaries continue to discriminate against persons with disabilities by under-valuing their lives. However, India, its Courts and the persons with disabilities are very progressive on this front and the western countries can follow suit at least on this count.

This is just a beginning. We need a well devised future strategy  to dismantle the entire regime of discrimination that is prevailing in the insurance sector and the immediate challenges are:

(a) The insurance sector still discriminates on the basis of etiology of the disability i.e. causes of disability, whether it is from birth and after birth; neurological or physical and  then rates their lives accordingly,  which in my considered view has again no scientific base.

(b) The persons with neurological disabilities are still not allowed any insurance policy and needs to be challenged.

(c) PLI is an insurance scheme for the benefit of government employees hence, it will cover a very small section of persons with disabilities. Those who are outside the government jobs especially those in rural areas are far away from reaping the benefits of insurance. Though the judgement challenges the principles that have so far formed the basis for denying the  insurance to the disabled.

(d) The Actuaries who are in the business of assessing the life risks are not aware of the real challenges and the lives of the persons with disabilities and they continue to live in their own world and decide on their own whims, the risk calculation of the life of a person with disabilities. They need to be sensitized and made aware not only about the lives of persons with disabilities but also the rights regime that UNCRPD brings.

(e) The entire literature on insurance that I had to read while pursuing this case from outside, I found it reinforced the stereotypes about persons with disabilities and their proneness to accident! Hence, we need new literature for future actuaries to understand that Disability can not be treated always as a negative health profile and that living with disability was distinct from suffering from a life threatening disease.

(f) There is a need to raise awareness that a person with visual impairment or with hearing impairment or with neurological impairment also enjoys good health like anybody else.

(g) The rules of Insurance sector needs to be changed in light of this judgement and applied across the sector. All insurance  issuing companies - be it private or government have to factor in the principles of this judgement and make amends.

(h) The discrimination continues unabated in not just in `life insurance, sector but in health insurance and other insurance products on the offer. This needs to be addressed on priority.

(j) We need to take this awareness to the most marginalized persons with disabilities in rural areas through several means.  

I am sure we all are up for it and would take this to its logical end.

regards

Subhash Chandra Vashishth

Advocate-Disability Rights

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.