Gujrat HC Judge, Advocate & Govt Pleader work in tandem to grant appointment to candidate with Cerebral Palsy [Judgement Included]

Dear Colleagues,

A single bench of Gujarat High Court has asked the State Govt. to appoint a man with cerebral palsy on the post of Supervisor Instructor Class III in the ITIs.  Quoting from the official video of the "सुगम्य भारत अभियान” i.e. "Accessible India Campaign" a campaign of the Department of Empowerment of persons with disabilities says, “हक़ है बराबरी का, गर्व से जियेंगे ! ” i.e. to say “We have right to equality and we have right to live with honour and dignity”, the court said,  "This is one such case where a person, since has been refused such a right to equality and to lead the life with dignity and with self empowerment, has approached this Court invoking powers under Articles 14, 16 and 226 of Constitution of India.

The petitioner Sudhanshu Upendrabhai Chavda, a person with cerebral palsy (spastic quadriplegia) came to be selected in the process of recruitment on his own merit for the post of Supervisor Inspector(Class III). However, in a meeting between the petitioner and the members of Selection Committee, it was realized that the petitioner was not able to speak and write properly. Therefore, he was not found eligible for the said post on the ground that the post of technical supervisor requires a person to speak clearly/properly and make the subject to be understand well by the trainees.

Petitioner argued that not granting appointment to the petitioner defeats the very objective of the Persons with Disabilities [Equal opportunities, Protection of Rights and Full Participation] Act, 1995 [“Disabilities Act” hereinafter]. It was urged that the court needed to once speak to the petitioner and also keep in mind the decision of the Apex Court rendered in case of Saiyed Bashir -ud-din Qadri Vs. Nazir Ahmed Shah and Ors. in SLP(C) Nos. 10669-70 of 2008 which according to the petitioner was also a story of a person who had a struggle to be self dependent.

The Court after meeting the petitioner in person, found a very favourable impression and on realising the fact that his mental faculty was not in any manner affected despite his condition of cerebral palsy with spastic quadriplegia, requested the learned Government Pleader to take up the matter with the highest authority after once having a personal talk with him. 

The Govt. pleader accordingly had personal interview with the petitoner and having been convinced thereafter she chose to write to the Principal Secretary, Labour and Employment Department pursuant to the suggestions of the Court. The govt. pleader wrote:

“Upon the direction issued by the Hon'ble Court in the presence of the officers, I have personally also spoken to the petitioner. It appears that on account of cerebral palsy he is suffering from only Locomotor Disability and any other work in the nature of date entry, assessment of papers, preparation of training material etc. may be given to him. In any case the Hon'ble Court has directed the undersigned to speak to the highest authority in the department to find a way out. These are people who have struggled all their lives to achieve degrees and qualification against all odds. They all need to be encouraged. They merely need a government job. Having over come his physical disability, he has attained a Master in Computer Application (M.C.A) degree. The Hon'ble Court has directed that the State ought to consider this and take a sympathetic approach towards him and appoint him on some post in an ITI Institute, which would not be involving communication or speech skills.”

Accordingly, the department agreed to appoint him pursuant to the above communication. The court however, ordered that the petitioner shall be given the appointment order as mentioned hereinabove. If not granted within the stipulated time period, the petitioner shall be at liberty to approach this Court.

Rarely we find such instances where Courts take such interest to support the cause of people with disabilities. We have seen how cases are heard & disposed off mechanically. This deserves mention that in this case, not only the candidate was able, highly educated and full of confidence but the advocate representing the petitioner, judge and the govt. pleader - all worked in tandem to grant the petitioner relief.  

Judgement

To read the PDF judgement dated 28.12.2016 in Special Civil Application No. 17799 of 2016 titled  Sudhanshu Upendrabhai Chavda Vs. State of Gujarat & Ors., click here. 

Central Administrative Tribunal directs Railways to appoint visually impaired candidates

Dear Colleagues,

Railways has always been very reluctant to hire persons with disabilities citing safety and security reasons though not even a single incident of safety has been attributed to disability till date.  Its actually a mindset of the Human Resource officials, inherent prejudices who attach incapacity to the disabled. 

In the instant case, nearly 10,000 visually challenged candidates had reportedly appeared in the examination in November-December 2013 after the railways advertised for 7,386 vacancies. All of them were, however, issued rejection letters by the Indian Railways before the results were announced for being “100 per cent visually challenged”.

In protest, the applicants moved  a petition in Central Administrative Tribunal (CAT), arguing that they are eligible and entitled to be considered for the posts, both on merit as well as under reservation for visually challenged persons.

The CAT in its order yesterday directed Northern Railways to publish a revised merit list and appoint the candidates, who qualified on merit as well as under the disability quota.

Arguing for the applicants, lawyer S K Rungta – himself visually challenged – said the Northern Railways’ recruitment cell must file complete results, including the results of 100 per cent visually challenged candidates, so that their merit position could be ascertained.

Rungta and lawyer Pankaj Sinha urged the court to direct the Railway Board to consider appointing the petitioners and other visually challenged candidates.

The railways responded by saying that the vacancies were for people with “low vision” and that 100 per cent visually challenged persons cannot be hired for the posts despite the fact that the posts in question are identified as suitable for completely blind by the Government of India.

The tribunal, however, directed Northern Railways and the Railway Board to publish the complete results within two months and appoint the qualified candidates.

Northern Railways spokesperson Neeraj Sharma refused to comment. “The matter is sub-judice, so we cannot comment. But the railways will take appropriate action after consulting its legal department,” he said.

Despite catena of judgments by High Courts and Supreme Court, the Railways continues to play hide and seek when it comes to the equal employment rights of the persons with disabilities. In this matter, despite CAT's direction,  I am sure, given the past experience, Railways will delay the matter by knocking the doors of Delhi High Court against the CAT Order. However, the writing is clear on the wall. The Railway officials in the Human Resource division needs serious sensitization on disability issues and also  need to put their house in order. The reporting mechanism, appraisal, posting/transfers, disability reservation & promotion processes & equalizing facilities, reasonable accommodation for the employees with disabilities is something that they desperately need to work on on an urgent basis. Hope the message goes to right people.

Related news in Indian Express today

CAT asks railways to appoint visually impaired candidates

Not providing reservation for disabled in Higher Judicial Service amounts to Discrimination - rules Delhi HC

A Division bench of Delhi High Court presided by Justice S. Ravindra Bhat and Justice R.V. Easwar observed that arbitrary denial of 3% reservation for persons with disabilities in terms of The Persons with Disabilities Act 1995,  would amount to discrimination.

Writing judgement in this case titled Nishant S. Diwan Versus High Court of Delhi, W.P.(C) 983/2014 on 25th March 2014, the bench observed that the Disabilities Act made it mandatory for all government organisations to reserve at least 3 per cent vacancies for the disabled and that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment process for the Delhi Higher Judicial Services was “arbitrary and discriminatory”.

The bench also struck down the argument that a five-judge committee on 09.03.2007, made no recommendation in respect of DHJS while making recommendation about the DJS (comprising of civil judges and magistrates only) saying that the Committee had considered the proposal in the background of whether to provide for reservations in DJS and there was no explicit reference to DHJS.

Click here to access the Supreme Court Judgement in Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

The court has also directed the establishment to carry out a review of the remaining number of vacancies in the DHJS that can be “appropriately earmarked for those with disabilities according to the total number of sanctioned posts”, following which it could recruit the appropriate number of persons in the next round of recruitment.

The court has directed the administration to carry out a “special recruitment procedure” for only the earmarked vacancies falling to the share of those entitled to be considered under the 3 per cent quota under the Disabilities Act, within a year of the date of declaration of results in the current recruitment process.

DHJS refers to appellate courts, which exercise appellate authority over the lowest level of judiciary. Direct recruitment to DHJS is done through an examination held by the High Court Establishment (HCE).

The HCE had issued an advertisement for recruitment to 14 posts in December last year, setting aside four seats for SC/ST candidates and 10 for general category. The examination for these seats is scheduled to be held on April 6.

The order was given on a plea filed by an advocate who is a person with locomotor disability, who had alleged that non-inclusion of disability quota in the DHJS recruitment was “contrary to the express provisions of the Disabilities Act”.

Advocate Nishant S Diwan, who has been practicing as an advocate since 1998, had also argued that the HCE was “under a duty to set-apart appropriate number of posts having regard to the total cadre strength of 224 posts in DHJS”.

The HCE had taken the decision that the disability quota would not apply to the DHJS recruitments and would only apply to the magistrates and civil Judges, since the notification issued by the Ministry of Social Justice and Empowerment had mentioned only “magistrates of the subordinate judiciary”. The HCE had also taken the plea that since the examination was scheduled for April 6, imposition of any quota at this late stage would “upset the entire timeline and delay the recruitment process”.

The court held that “there can be no difference for reservation under the Disabilities Act” between the DJS and the DHJS since the DHJS officers perform duties and functions similar to those in DJS.

The court directed the administration to set aside one of the 14 posts for persons eligible under the disability quota, but has directed that the seat should be kept vacant and should be clubbed with the next round of recruitment.

Since as per the Supreme Court judgement in UOI Versus National Federation of Blind, it is clarified that the section 33 is independent of Section 32 for making reservation, the Hon'ble Court should have also passed directions to calculate the backlog of the total vacancies since 01 Jan 1996 and not reserving one seat in the present recruitment process.

Also the list of identified posts makes a mention that posts with different nomenclature but with similar functions out to be reserved. Also since posts of DHJS are also promotional posts for the lower judiciary, these can not remain beyond the purview of reservation  in both direct recruitment as well as promotional reservation envisaged by the judgement of the Hon'ble Supreme Court ibid.

Download the Judgements:

• W.P.(C) 983/2014 Nishant S. Diwan Versus High Court of Delhi pronounced by Delhi High Court on 25 March 2014.
• Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

Madras High Courts allows Transgender to write PSC Exams after PIL filed

Delighted on this news wherein the first bench of the Madras High Court upheld the right of Equality of the Transgender Community in the matters of employment under the State !

Congratulations to Swapna and yes the First Bench of the Hon'ble TN High  Court!

Here is the news from Times of India !

TN allows transgender to write PSC exam

A Subramani | TNN 

Chennai: It was a tiny relief for Swapna, but a giant leap for the entire transgender community. 

Thanks to the Madras high court, Swapna became the first person in the country to choose her own sex, and get a legal stamp for it, too. Her school and college certificates show her sex as ‘male’, but Swapna has now chosen to be socially recognised as a transgender and be officially treated as a ‘woman’. After she moved the court, state public service commission has now allowed her to write its recruitment test as a ‘woman’ candidate, which will make her eligible for posts such as deputy commercial tax officer and sub-registrar. 

She, along with four other members of the transgender community, filed a PIL in the high court with a twin prayer – one, to direct the Tamil Nadu government to reserve 3% of seats in education and employment for transgenders; two, to direct the Tamil Nadu Public Service Commission (TNPSC) to permit Swapna to sit for examination by treating her as a ‘woman’. 

On Wednesday, the TNPSC’s standing counsel handed over a hall ticket to Swapna, permitting her to write examination for Group-II posts to be held on December 1 as a ‘woman’ candidate. The venue where she received the hall ticket was no less significant – it was the first bench of the high court.

Source: Times of India 28 November 2013

Punjab & Haryana HC reinstates employee with Cerebral Palsy

Dear Colleagues,

Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).

Brief Facts

Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test,  general  knowledge  and  the proficiency  test  in  operation  of computers   and also the computer  practical  test  and personal interview.  The competent medical authority had also declared  the  petitioner  as  a case  of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out  of  the  71  advertised posts,  only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.

However, within two months of joining the District & Sessions Judge,  Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that  his services are no longer  required.   The stand taken by the respondent was that  the  services  of  the petitioner  have  been terminated as per the terms of his appointment  letter,  according to which the petitioner  was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the  appointment  letter,  the  services of the petitioner  could  be terminated at any time without assigning any reason and without prior notice.  As the petitioner  was unable to perform any kind of  office work with his own hands and of  his own,  he being suffering from cerebral  palsy,  he could not  be continued in service.  As  per  the respondents,  petitioner  is unable  to  perform  any  work  on  the computer and, therefore, faced with this situation, the services of the petitioner  have  been dispensed  with  as  per  the  terms  of  his appointment  without  casting any stigma on him. The respondent also submitted that  the officials in the office of  District  and Sessions Judge have been helping the petitioner at  every step and at  every moment still he was unable to do any office work and, thus, respondent was left  with no option but  to take a decision to dispense with the services of the petitioner in the interest of office administration.

The Judgement

While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social  legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity.  Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which  has  been  identified  and  reserved  for  a  particular category, the employee cannot be terminated and efforts be made to provide a congenial  atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner. 

The court concluded that the "petitioner may be slow in handling the computer but  could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer.  The detail  of  the Sections  where the work  is  done on computers,  has been given in the replication,  which indicates that there are  plenty  of  places  where  the  petitioner  can  easily  be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and  competence.  With  same  support, encouragement  and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object  of  the Disability Act  would be given effect to in true spirit." 

Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha  VERSUS State of Haryana and others)    

Learnings from the judgement:

This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual.  Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:

(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace! 

(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of  performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.

The acknowledgements

Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.  

Media Coverage by the Tribune

High Court quashes sack order of disabled person 

Saurabh Malik

Tribune News Service

Chandigarh, August 6

In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.

The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.

Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.

During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.

In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.

Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….

Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.

Himachal Pradesh High Court directs the State to find ways to provide equal opportunities for disabled in civil services

Dear Colleagues,

This petition by Mr. Shyam Singh, a disabled school teacher from Himachal Pradesh brings out the systemic inadequacies, which I am sure exists in all states, in providing equitable opportunities to persons with disabilities in their recruitment to the civil posts in the States. only 25% of the total Class- I category posts have been filled that are reserved for persons with disabilities in terms of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act- 1995.  This also indicates that no steps have been taken by the State to fill up the backlog by taking measures suggested in the DoPT Guidelines dated 29 Dec 2005 on effecting the reservation of posts for persons with disabilities.

Such an exercise in needed in most states as we continue to face situations where lack of enabling environment do not allow persons with disabilities to compete with their non-disabled counterparts. Also the state recruitment agencies, public service commissions have not thought of organizing coaching classes for preparing the students for the competitive examinations as is being done to improve representation in civil service of persons from marginalized communities such as scheduled castes / scheduled tribes. NGOs working with persons with disabilities or the self-help groups /DPOs must take up similar initiatives to create a demand for such a need of training and lowering  the selection criteria for persons with disabilities who have been suffering exclusion due to inaccessibility of educational systems as well as attitudinal barriers of the community in reaching their full potential.

Here is the news coverage from Indian Express

Work on ways to provide equal opportunities for disabled: HC - Indian Express

Alarmed that only 25 per cent of the posts reserved for the physically-challenged in Class-I category government jobs have been filled up owing to non-availability and non-suitability of candidates, the Himachal High Court on Wednesday directed the state government and Public Service Commission to work on alternatives to provide equal opportunities to the disabled.

A division bench comprising Chief Justice Kurian Joseph and Justice Dharam Chand Chaudhary said the existing mode of selection was not in a position to ensure equal opportunity to the physically-challenged. “In terms of the objectives of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act-1995, we are of the view that it is high time that the state thinks of alternate methods of selection. It should also be thought of as whether such selection should be continued with the HP Public Service Commission.

The court passed the order while disposing off an appeal filed by Shyam Singh — a physically-challenged person who works as a school teacher in Darlaghat. The petitioner, who had appeared for Public Service Commission exam under three per cent reservation, was not selected because he “lacked merit”.

“Even in selection in respect of the reserved quota, there cannot be any compromise on standard of merit as prescribed by the appointing authority. Of course, it is certainly open to the appointing authority to prescribe lesser standard, in respect of the reserved categories to achieve the objects of such reservation,” the court said

Nagpur University challenged for discriminating against Persons with Disabilities

Dear Colleagues,

My dear friend Rajesh Asudani who works with Reserve Bank of India has moved Mumbai High Court (Nagpur Bench) against Nagpur University's open discrimination against persons with disabilities by earmarking only four posts for PH Persons that too making it "subject to availability". That indicates their intention to keep the posts unfilled and then lapse them in favour of general categories on the pretext that suitable candidates were not available! This has become the modus operandi of several Government departments which needs to change.

Here is the coverage in Times of India, Nagpur:

HC stays Nagpur University hiring over blind man's plea 


NAGPUR: A blind man has moved the high court here alleging flouting of rules by Nagpur University in appointment of lecturers. A division bench of chief justice Mohit Shah and justice Prasanna Varale, on Wednesday, stayed the entire recruitment process of the university. The court also issued notices to the respondents including UGC chairman Ved Prakash, NU vice-chancellor Vilas Sapkal and state secretary for higher and technical education, directing them to file reply within two weeks.

Rajesh Asudani (35), a meritorious candidate who aspired to be a lecturer, had argued in-person during first hearing but taking into consideration his blindness, the court appointed Ashutosh Dharmadhikari as amicus curiae to plead his case. He claimed that NU violated Persons with Disabilities (Equal opportunities, protection of rights and full participation) act, 1995, in its advertisements for recruitment of professors, associate and assistant professors. He said these advertisements provided reservation for the disabled but "subject to availability" and stated that preference would be given to physically handicapped. He added that advertisements failed to specify the exact nature of disability and were against various circulars issued by UGC, Government of Maharashtra, Ministry of Social Justice and Empowerment, and also against the settled laws established by judgments of Supreme Court and various high courts.

Asudani, working with RBI as Class-I officer, pointed out that NU had issued advertisements for lecturers' recruitment three times in five years - on July 13, 2007, March 26, 2008 and August 30, 2011. The petitioner contended that reservation of posts for disabled persons under Sections 32 and 33 were binding on all the establishments but NU disregarded them in letter and spirit while reserving only four posts for physically handicapped persons, that too making it "subject to availability". He took strong objection to this rider terming it as patently illegal and militating against the letter and spirit of law.

Asudani argued that same rider had not been placed for filling up posts for SC/ST candidates, even though some posts have been advertised numerous times. He cited examples of head of NU post graduate law department Shirish Deshpande and retired sociology lecturer Prof Lakshman Khapekar who earned distinction for their unmatched academic success despite blindness from this very university. He prayed for cancelling the advertisements and directives to NU to come up with new one with proper reservations for disabled.

Source: http://timesofindia.indiatimes.com/city/nagpur/HC-stays-Nagpur-University-hiring-over-blind-mans-plea/articleshow/12270803.cms

We need sensitized and qualified Disability Commissioners in States

Dear colleagues,

The recent case of Ms. Nilima Surve (a visually impaired employee) is an example of how departments can label an employee with disability as "incompetent" and remove him/her from job on such grounds for no fault of his/her. The actual reason being the refusal of employer to provide reasonable accommodation to the employee with disabilities and refusal to accept the technological advances in the work environment. 

Ms. Surve was appointed as a Junior Clerk-cum-typist in Chetana's Hazarimal Somani College of Commerce at Bandra (E), Maharastra in November 2006, and was dismissed from service in March 2007 on the grounds that her work was unsatisfactory and there were typing errors in her work. The employee asked for screen reading software in the computer so that she could do the job effectively. The college, however, not only refused to provide the software but even refused to allow her to organize one on her own! 

The matter was taken up with the Court of Commissioner -Disabilities who mentioned the need of software and technology to avoid typing errors in future but did not bind the employer to provide one for the employee and remarked, "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software." while upholding the  termination of the employee vide its order dated 30 October 2010 ! 

Left with no option after such an insensitive order from the Commissioner disabilities, Ms. Surve then approached Mumbai High Court through a writ petition challenging the impugned order.  The bench on 10th October 2011 giving relief to Ms. Surve directed the State Government to make an exception and provide her with the devices, including gadgets and software to enhance her performance.

The root cause of the problem

(A) Incompetent and Unqualified Persons appointed as Commissioners-Disabilities

This is important to stress here that the Commissioner for Persons with Disabilities are appointed under sub-section (1) of section 60the Persons with Disabilities Act 1995; which is reproduced below for the benefit of readers:

Extract from the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 -

"60. Appointment of Commissioners for persons with disabilities.- (1) Every State Government may, by notification appoint a Commissioner for persons with disabilities for the purpose of this Act.

(2) A person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.

(3) The salary and allowances payable to and other terms and conditions of service (including pension, gratuity and other retirement benefits) of the Commissioner shall be such as may be prescribed by the State Government.

(4) The State Government shall determine the nature and categories of officers and other employees required to assist the Commissioner in the discharge of his functions and provide the Commissioner with such officers and other employees as it thinks fit.

(5) The officers and employees provided to the Commissioner shall discharge their functions under the general superintendence of the Commissioner.

(6) The salaries and allowances and other conditions of service of officers and employees provided to the Commissioner shall be such as may be prescribed by the State Government.

61.Powers of the Commissioner.- The Commissioner within the State shall-

(a) coordinate with the departments of the State Government for the programmes and schemes for the benefit of persons with disabilities;

(b) monitor the utilisation of funds disbursed by the State Government;

(c) take steps to safeguard the rights and facilities made available to persons with disabilities;

(d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner."

However, the State Governments rarely bother to implement section 60 (2) in right spirit which mandates that  a person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.  Mostly the civil servants of the state are appointed or given extra charge of Commissioner- Disabilities. These officers are expected to be custodians of the legal duty to safeguard the rights and interests of the persons with disabilities. Since they have no special knowledge or interest in respect of matters related to the rehabilitation of persons with disabilities, they are bound to commit such blunders and display such apathy and negative attitudes. 

As legal practitioner, I have often seen that the work of the State Commissioner Disabilities is delegated to District Magistrates/District Commissioners in the districts as an additional charge. Therefore, there is no check whether the appointed officer is aware about disability rehabilitation issues. The whole system gets apathetic because often they have no time, knowledge, sensitization or interest to do justice to the additional duty!

(B) Lack of clearly written instructions for employers

Second lesson is lack of information and instructions to the recruiting/employing departments about the rights of the employees with disabilities at workplace. They don't seem to be aware that providing software, barrier free environment, assistive aids and devices that provide a level playing field are to be provided at the cost of the Government! 

Section 42 of The persons with Disabilities Act 1995 clearly provides as below: 

"42. Aids and appliances to persons with disabilities.- The appropriate Governments shall by notification make schemes to provide aids and appliances to persons with disabilities."

Similarly Section 48 of the Act provides that the appropriate government and local authorities shall promote and sponsor research, inter alia, in the following areas:

(a) prevention of disability;

(b) rehabilitation including community based rehabilitation;

(c) development of assistive devices including their psycho-social aspects;

(d) job identification;

(e) on site modifications in offices and factories

The UN Convention on the Rights of Persons with Disabilities that India is signatory to has defined "Reasonable accommodation" as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

Article 27, UNCRPD -"Work and Employment" mandates the states to ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

And making provisions for a level playing field would be covered within the meaning of Reasonable Accommodation.

The general trend

The right to technology and assistive aids and devices for a level playing field, in other words "reasonable accommodation" at work places is increasingly gaining center-stage with a humongous number of persons with disabilities claiming their right to employment.   There is a 3% minimum reservation for the persons with disabilities in India in the government sector and as per law, those selected on their own merit by contesting against the general list can not be adjusted against the reserved quota of jobs. This means a large number might find a good career in the Govt. jobs.

However, the employers - both in government and private  sector are not aware and sometimes even when aware are reluctant to provide the necessary level playing field (read reasonable accommodation) to the workers with disabilities. I know of several blind employees in the banks who were employed as Clerks, Stenos etc however, continue to sit idle since the banks have moved to computerization and there is hardly any job assigned to them. The banks have not updated themselves with the required technology to put the services of the visually impaired employees to use. The employees feel redundant and the department feels the employee is good for nothing! Since these banks are run by government they can not turn them away, but such situation is neither in the interest of employees nor the bank. This also sets a wrong precedent in the eyes of the senior management in banks about the utility of  new employees with disabilities who might fill the reserved vacancies in future.

The road ahead

The lessons from these cases only give us strong reminders that the State implement the Disabilities Act properly and stop the lip service. It is an ideal opportunity that instead of civil servants and government officers, the states recruit qualified persons with knowledge and experience of disability rehabilitation for the posts of Commissioner or District Commissioner/Additional Commissioner under the Disabilities Act and immediately put a stop to the current practice of appointing unqualified officers.

Secondly it is high time that the Government issues clear, unambiguous instructions /notification highlighting the equipment /softwares / devices etc required for each disability for each post besides a barrier free environment based on Universal design in each office/workplace.

Similar notifications must be issued/adopted by States to ensure that the Persons with Disabilities do not face such hostile environment and get a level playing field/reasonable accommodation so as to contribute to their maximum for the growth of their career and the development of nation.

Here are few links to the news coverage of Ms. Surve's case.

regards

Subhash Chandra Vashishth

Disabled Need support, not your sympathy: High Court (Hindustan Times)

HC to the aid of fired blind woman (Times of India) 

MUMBAI: In a victory for visually impaired Nilima Surve who was fired by a college trust for typing errors, the Bombay high court on Monday directed the state government to make an exception and provide her with devices, including gadgets and software, to enhance her performance.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi also directed the college trust to permit Surve to resume work.The judges were hearing a petition filed by Surve challenging an order dated October 30, 2010, by the commissioner for disabilities upholding her termination.

Surve was appointed as a junior clerk-cum-typist at Chetana's Hazarimal Somani College of Commerce at Bandra (E) in November 2006 and dismissed in March 2007 on the grounds that her "work was not satisfactory and there were typing errors".

Her advocate Chetan Agrawal said the commissioner, in his order, acknowledged the use of software to avoid mistakes in future but the college refused to provide or allow installation of the software provided by her.

The judges, in December 2010, had observed that the "disabled need support, not sympathy".On January 15, the court isued a general order directing the state government to provide special gadgets and software to its employees, including those in public sector undertakings, universities and colleges.

On Monday, the judges observed that the state will take time to implement their directive. Justice Shah said, "There is no reason why as a special case such devices for the petitioner should not be provided in the meantime.'' 

The judges have asked Surve to send a requisition to the government for the devices and the software required by her and directed the state to make them available to her three weeks thereafter. "In short, the government will immediately make payment to the supplier for such gadgets or devices and software which the petitioner requires for enhancing her performance in typing and other desk work."

Deaf seek level field on disability

Dear Friends,

Issues of bias within disabilities is becoming a regular discussion point. Though the disability groups try to avoid such a conflicting situation among disabilities and pose a unified front to advocate for their rights, however these issues are now open secrets. The bureaucracy and employers are taking advantage of this and openly discriminating in favour of one disability and against the other while filling up the disability quota provided by the law.

We have seen in the past that the person with less disability is preferred to fill up the vacant job quota. Often those with less than 40% disability (as required by law)  with fictitious certificates claiming to be 40% disability get in to the quota leaving the actual needy stakeholders in lurch. The employers raise no voice because the get (at least that is what the employers think) a more able?? and efficient??? employee in the disabled category which they have to adhere to in terms of The Persons with Disabilities Act. This is one side of the issue.

The other side of the issue is that there is open discrimination within disabilities that currently are eligible to be considered against disability quota in the Government jobs. Those who minor physically disabilities are preferred to those with more severe physical disabilities (such as a crutch user is preferred to a wheel chair user or those with Post Polio Residual Paralysis are preferred to those with Cerebral Palsy, a partial hearing impaired with speech is preferred to deaf, low vision is preferred to blind and likewise..). 

However,  in employment, it is the deaf who get left out. The results of past five years of UPSC exams conducted for Civil Services indicates this bias very categorically. There has to be a mechanism to address such discrepancies which only leads to rivalry among the disability groups. The currently disability law in India only provides for reservation in employment @ 1% each for the Hearing impaired, Low Vision & Blind and Orthopedic impaired. And now we are already witnessing many other groups who have been left out for various reasons from this ambit, raising their concerns vociferously in the consultations being organised for finalizing a new disability law for India in tune with new UN Convention on Rights of Persons with Disabilities.

The Government should evolve a clear cut mechanism to check discrepancies and subjective biases so that transparency is maintained and justice is done to the stakeholders.  The issue brought out before the court by Deaf Employees Association is an indicator that all is not well and soon you may find courts flooding with similar petitions from other groups. 

regards

SC Vashishth, Advocate

Here is the news item:

Deaf seek level field on disability

Mar 19, 2011, 03.52am IST

NEW DELHI: The hearing impaired on Friday moved the Supreme Court seeking parity with the blind and other physically challenged people in government service in promotions and allowance entitlements.

A bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar wanted petitioners — "Deaf Employees Welfare Association" and " Railway Employees Association of Deaf and Dumb" — to make a representation to the ministry of social justice and empowerment about their grievance.

However, solicitor general Gopal Subramaniam, taking note of the complaint of discrimination by the hearing impaired government employees, agreed to entrust the concerned department to examine the issues raised by the petitioner through advocate Kamal Kumar Pandey.

The bench asked the two associations to give the SG a copy of their petition and wanted the ministry concerned to report back to the court with its stand in four weeks.

Quoting Article 41 of the Constitution obliging governments to provide effective mechanism and public assistance to disabled people, the petitioners said prior to 1995, there was no specific legislation to address the rights and needs of the disabled people.

The governments confined their efforts to providing medical rehabilitation and removal of the stigma limited to visible disabilities like blindness, orthopaedically handicapped and leprosy, they said.

However, the concept of disability and the social attitude towards it has undergone a radical change since India signed the "Proclamation for Disabled, Full Participation and Equality for Asia and Pacific Region" in 1992. The Centre framed a national policy for disabled in 1993, which was revised in 2005, and provided 3% reservation to blind, hearing impaired and locomotory disabled people in government jobs.

However, the approach of the central and state governments underwent very little change and they have been discriminating against the the deaf employees by not providing them travelling allowance, on-job training and promotions on a par with the blind and orthopaedically handicapped.

Disabled employees suffering as employers not aware of disability provisions

Disabled need support, not your sympathy: High Court

"Visually impaired and disabled persons don't require your sympathy, they need a little support," observed the Bombay High Court on Thursday.

While hearing a plea filed by Nilima Surve, who is visually impaired, the high court was surprised that the commissioner of disability had upheld her termination, instead of supporting her.

In November 2006, Chetna College at Bandra had appointed Surve as a junior clerk. But she was dismissed from service four months later. The college had cited "mistakes in her typing" as the reason behind the termination.

The division bench, comprising chief justice Mohit Shah and justice SJ Kathawala, was irked to find that Surve wanted a particular software to be installed to improve her work, instead she was sacked citing "unsatisfactory work".

Surve had approached the commissioner for disability challenging her dismissal stating she had merely sought installation of the software, Jaws, but the college chose to dismiss her in March 2007.

The judges got further annoyed when Surve's counsel Chetan Agrawal pointed out that the commissioner had passed some critical remarks in the order upholding her termination.

One such remark read: "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software."

Additional government pleader agreed that the order was contrary to the legislative intent, after the judges expressed anguish about the observations.

"The order is clearly arbitrary and contrary to the provisions of the [Persons with Disability] Act," Nitin Deshpande said. The high court also called for a meeting of all stakeholders — government officers, NGOs, representatives of visually impaired and handicapped persons — on January 15.

Measures to resolve the problems faced by the disabled will be discussed at the meeting to be held in the conference hall of the high court building in presence of the judges.

http://www.hindustantimes.com/StoryPage/Print/636604.aspx

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