Disabled Candidates are at par with SC/ST candidates

Dear Friends,

I had the opportunity to read the order of the Hon'ble High Court of Delhi in WP(C) 1352/2008  WP(C) 8750/2009 titled Md. Shah Afzal Vs. Medical Council of India and Anr. delivered on 06.07.2010. I am a little surprised by this move of the High Court in refusing to accept the petitioner's contention that the physically disabled candidates should be treated at par with the SC/ST candidates and merely advising the Government of India to consider the recommendations of Chief Commissioner for Disabilities who had directed all government-aided institutions to extend the relaxation in qualifying marks to physically disabled candidates in order to bring them at par with SC/ST candidates.  

The court in its concluding para said "Although we feel that physically disabled persons should be extended all the rights, privileges and benefits under the said Act so as to ensure that they are not discriminated against and that they come within the social mainstream, we do not agree with the contentions made on behalf of the petitioner that the petitioner, as of right, can claim parity with SC/ST candidates insofar as the relaxation in the minimum marks required is concerned." 

The court concluded that insofar as physically disabled persons are concerned, they have a right to reservation but there is no right to relaxation or a concession in the minimum standards. 

In my considered view the stand of Medical Council of India that  physically disabled candidates cannot claim parity with SC/ST candidates as the two stand on entirely different footings is utterly flawed so is the conclusion of the Hon'ble Court. 

Argument -1

In the instant case the Hon'ble Court should have looked at the objective of the Persons with Disabilities Act 1995 and should have seen the DoPT Memorandum dated 29 December 2005,. Para No. 22 of the said notification does talk about relaxation of standards of suitability which is often given to the SC/ST categories also. Here is the exercpt:

"22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question."

Therefore, taking an analogy from the relaxation given here for employment, similar relaxation can easily be given to accommodate candidates with disabilities in the professional education too! 

Argument-2

Also the direction of the Chief Commissioner disabilities who is considered to be a Specialized Court on the law relating to disability, should have been given due importance for the decision of the CCPD was based of the very objective of the Disabilities Act and stand taken by the Government of India vis-a-vis parity between the disabled candidates and those belonging to SC/ST. Both categories have suffered marginalization due to lack of equitable opportunities due to social and environmental barriers and hence were considered for positive discrimination set out in the Indian Constitution by way of reservation despite Right to Equality.

Additionally it is the confirmed policy stand of the Govt. of India that relaxation in standards should be favoured when candidates belonging to reserved categories are not available on the basis of general standard to fill all the vacancies reserved for them. And there is no ambiguity that Persons with Disabilities are in reserved categories.

Argument-3

Hon'ble Supreme Court in Writ Petition (Civil) No. 115/1998 titled All India Confederation of the Blind Versus Union of India and Others on 22.03.2002 had upheld the stand taken by the Chief Commissioner-Disabilities and Govt. of India that by extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC /ST, would bring parity amongst all persons with disabilities irrespective of their vertical categories. (Click here to read the Supreme Court Order on the IA no 4.)

Lessons from the Case

Therefore, in all probabilities, the Hon'ble High Court of Delhi in the instant matter has erroneously ordered against the settled principals and the explanation as above. I feel the Counsels should do their homework while taking up matters of such public importance. Had the court been appraised of the above settled principal of Govt. of India and the existing order of the Hon'ble Supreme Court, this injustice to the petitioner could have been avoided. Worst is even the Representative of Chief Commissioner-Disability did not point out to the settled and accepted principal in an earlier case before the Supreme Court. I am not aware whether the petitioner had wherewithal to pursue the matter at Supreme Court level and eventually this erroneous judgment finality.

Need of Amendments in the Constitution of India to include Disability

The Honb'e Judge points out in the order "The fact that the physically disabled fall in a different class to the candidates belonging to the SC/ST category, in itself, implies that they could be treated differently just as candidates belonging to the general category are, indeed, treated differently from those belonging to the SC/ST category. The second answer is that what has been given to the SC/ST candidates is a concession. The petitioner, belonging to a physically disabled category, cannot claim such a concession as a right. "

This also indicates that the disability community needs to advocate for an amendment in Article 15(1), 15(2) and in 16(2) the Constitution of India so that discrimination on the basis of disability is checked and also Disability as a category is taken at par along with SC/ST categories.

Article 15(1)) be amended as:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them

Article 15(2) be amended as:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them, be subject to any disability (be deleted), liability, restriction or condition with regard to…”

Article 16(2) be amended as: 

 “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, disabilities (be added) or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”

This would give a great boost to the moral of persons with disabilities and so to their rights in India and give them parity with other reserved categories under Constitution of India. 

regards

SC Vashishth

Advocate-Disability Rights

+91-9811125521

HC: Cannot allow disabled candidates same score concession as SC/ST students

Indian Express; Utkarsh Anand

In what might be a setback to thousands of physically challenged candidates looking to make careers in medicine, the Delhi High Court on Tuesday ruled that they cannot be given concession in qualifying marks similar to that of Scheduled Castes/Scheduled Tribes (SC/ST) candidates for admissions in MBBS courses in the Capital.

Dismissing a couple of writ petitions filed by a candidate with over 60 per cent locomotive disability, a Division Bench of Justices B D Ahmed and Veena Birbal held that while disabled candidates already had a right of reservation in educational institutions, they could not be given the right to avail concession in the minimum standards prescribed by the Medical Council of India (MCI).

The court noted that though several seats were going waste despite the 3 per cent reservation for the physically challenged due to the candidates’ failure in securing the required 50 (now 45) per cent marks in the qualifying exams, it would rather stick to the legal dimensions of the case.

“For the present, it is sufficient for us to observe that insofar as physically disabled persons are concerned, they have a right to reservation, but there is no right to relaxation or a concession in the minimum standards. And unless and until such a right is established, no mandamus or writ can be issued to any authority to give them the relaxation or concession,” the Bench held.

The writ was filed by Md Shah Afzal, who was denied admission in a Delhi University (DU) college for the MBBS course for failing to get 50 per cent marks in the the Delhi University Medical Entrance Test (DUMET) in 2008 and 2009. He contended before the authorities that the concession given to SC/ST candidates — they need to secure 40 per cent marks to qualify — should also be given to physical disabled candidates.

Afzal subsequently approached the Chief Commissioner under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. The Commissioner then directed DU and the MCI to extend the relaxation to physically challenged candidates as well.

Afzal then approached the High Court and said the MCI had refused to obey the Commissioner’s directive even though the colleges failed to fill up the seats reserved for the physically challenged. Afzal further contended that other reputed institutions like the AIIMS and the IITs had gone ahead to provide disabled candidates the same concession for admission as given to SC/ST candidates.

The MCI also approached the court, saying the Commissioner had overstepped his jurisdiction by issuing directives to them.The Bench then adjudicated the Commissioner’s order and the writ petitions on the basis of legal criteria and dismissed Afzal’s plea. “Although we feel that physically disabled persons should be extended all rights, privileges and benefits under the said Act..., we do not agree that the petitioner, as of right, can claim parity with SC/ST candidates insofar as a relaxation in the minimum marks is concerned,” it held.

The court also set aside the Commissioner’s order, noting that his role was only recommendatory in nature and could not be binding upon the MCI. The Bench, however, asked the MCI and the Centre to give a “serious view” to whether disabled candidates could be allowed the same relaxation in marks as SC/ST candidates.

Delhi High Court disposes off the PIL in favour of Inclusive Education in Govt. Schools in Delhi

Dear Friends,

So finally the Delhi High Court has disposed of the Public Interest Litigation No. W.P.(C) 6771/2008, Social Jurist Vs. Govt. of NCT of Delhi & Anr, yesterday i.e. on 20.01.2010. The final order merely disposes off the petition while making its earlier directions final which need to be implemented and the Committee appointed for the purpose will oversee its implementation.

This PIL has brought to sharp focus the precarious condition of the disabled children in the Government Schools. The situation was getting worse as disability was left to the NGOs to handle as if the state only had a role of giving out doles to few NGOs working on this. This led to uprooting of many children with disabilities especially the Visually impaired and the Hearing impaired to cities where some facilities existed. While children with other disabilities suffered in silence with no school ready to take them for they had no infrastructure or support to teach them.

The judiciary has restored the faith of people with disabilities, their parents, families, friends and supporters, NGOs that with this positive judgement, situations will change for them in the Government Schools too and inclusive education will not get restricted to ideological books only.

If this judgement is to be implemented, it would require a large number of special educators, therapists and supporting staff trained in sign language, braille and teaching techniques to include all by using multi-sensory methods. A daunting task both for the Govt. and as well as Rehabilitation Council of India. RCI will have to make sure that quality of training is maintained on highest standards in all their affiliated colleges, institutes. In the past there have been several cases where there were questions raised on quality of training in certain institutions. This would be necessary to protect the future of children with disabilities in mainstream (inclusive) education.

While the Education Department of Delhi Government has initiated the process of changing the Recruitment Rules to include Special Educators, other rehabilitation professionals have not been thought about as yet. To make inclusive education a reality, children with disabilities would require support of therapists, rehabilitation professional among all which should be considered by the Government.

Now with Mr. Agrawal been appointed Chairman of a Committee to oversee implementation of Right to Education of Disabled Children, these issues could be taken up with the Committee and necessary inclusion of more rehab professionals could be effected.

Recently, Central Board of Secondary Education (CBSE) has also indicated through a Categorical Circular that they would go to the extent of de-recognizing the Schools if any school dared to deny admission to a child with disability. This is a huge step in policy as well as in the domestic law of India - a step further to realize the mandate of UNCRPD.

We hope we will together face the challenges that might come in the way of realizing inclusive education a reality to make our nation a happier, welcoming & rights based place for its diverse population including those experiencing disability of any kind.

Regards

SC Vashishth

Advocate-Disability Rights

subhashvashishth@gmail.com

09811125521

Govt. buys six more weeks to amend postal insurance rules to stop discrimination against the disabled employees

Dear Friends,

This is in continuation to my earlier post on the discriminaton in Postal Life Insurance to the disabled wherein Hon'ble High Court of Delhi directed the Govt. to explain their stand. There have been some development on 07 October 2009 which are detailed below. I appreciate Ms. Sangeeta Sharma for covering this in her article for UNI and published in Indlaw.news.

regards

Subhash Chandra Vashishth, Advocate

 

Govt seeks 6 weeks time to amend insurance rules for disabled

07th October 2009

The Centre today sought more time to amend its insurance rules for disabled to bring them at par with the insurance rules of others.The lawyer appearing on behalf of Solicitor General (SG) Gopal Subramanium told the bench, comprising Chief Justice A P Shah and Justice S Murlidhar, that the Government has had talks with the Chairman of Life Insurance Corporation and some changes have been made in the policy which governs the Insurance of the disabled.

The LIC will consult the Actuaries, ‘who will also consider the amendments and get back to us, therefore, we need at least six weeks time to make such amendments,’ the lawyer said. The Delhi High Court had earlier directed the Centre to reconsider its postal insurance rules and to treat the persons with disability at par with other people. Appearing on behalf of the government, Solicitor General (SG) Gopal Subramanium assured the court that the government will take broad base consultation with experts and also take advice from the insurance regulator and draft a fresh policy, which will have no disparity for the disabled.

The Court had directed the ASG to consider the rules again and draft a policy in a manner that it should not be discriminatory and must consider the distinction between various types of disability as well as mortality factor caused by it.

‘Moreover, life expectancy and other factors should also be taken into account,’ Justice Shah said. A petition was filed by one Vikas Gupta, an Assistant Professor in Department of History, Delhi University, who is visually impaired. In his petition he said, ‘Rules of the postal insurance for government employees is discriminatory as it gives a cover of Rs 5 lakh to a normal person, but a handicap has to pay much more premium and gets an insurance cover of Rs one lakh only.’

The lawyer for the petitioner Mr Pankaj Sinha, also a visually impaired, and lawyer Ms Roma Bhagat told the court that Article 25 E of United Nations Convention On the Rights for Persons with Disability (UNCRPD) prohibit discrimination in the insurance policy.

Ms. Bhagat told the court that their research has shown that those who are hearing impaired, visually impaired or orthopedically impaired are less prone to accidents as they have less mobility and are more cautious. She told the court that there is no data available in India to show the cause of death as the death certificate des not mention it. Also, there is no data to suggest that disabled are more prone to accidents, so why they have to pay more to get a less insurance cover, Ms Bhagat said.

UNI 

Reservation on single post would amount to 100% Reservation

Dear Friends,

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

SC Vashishth
To read from source, click here

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

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

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

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

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

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

• The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.

• In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.

• Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.

• The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.

• Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.

• Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
  Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.

• If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.

• However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).

• Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.

• However, in the instant case, the issue was of denial of promotion and not saving the job.
  As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.

• However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.

• However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.

• The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types, the way PWD Act does, Hence, it perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.

• Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to declare him to be 'medically unfit' for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.

The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate

Madras HC | WP No. 23379 of 2007 | LK Venkat & Anr. Vs. Min. of Civil Aviation & Others | 30 June 2008

Dear Friends, 

We often see the impact of Cases indirectly. Of late we have been seeing some enormous amount of activity in the DGCA and Ministry of Civil Aviation and their engaging very constructively with the Disability Sector in bringing about a Civil Aviation Requirement on carriage of People with Disability. 

In this regard, I refer to a case filed by Mr. L.K. Venkat & Rajiv Rajan against the Ministry of Civil Aviation, Air Sahara and Jet Airways etc. on the issue of lack of provisions for dignified flying for the disabled. The ministry drew flake for some time but this case surely was one of the factor in pushing the CAR guidelines more quickly from the tables of Ministry of Civil Aviation.   Finaly the HC has delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation, a summary of the same is as below:-

Court: In the High Court of Judicature at Madras

Bench/Coram: Mr. Justice P.K. Misra and Mr. Justice M. Sathyanarayanan

Case No.: Writ Petition No. 23379 of 2007  

Case Title: LK Venkat & Anr. Vs. Min. of Civil Aviation & Others

Date of Order: June 30, 2008  

Introduction

In a significant ruling aimed at safeguarding the rights of individuals with disabilities, the High Court of Madras addressed a public interest writ petition filed under Article 226 of the Indian Constitution. The petitioners sought a writ of mandamus to enforce the provisions of the Persons with Disabilities (Equal Opportunities, Protection, and Full Participation) Act, 1995 (the "Disabilities Act"). This judgment highlights the judiciary's role in upholding the rights of disabled persons and ensuring non-discriminatory practices in air travel.

Case Background

- First Petitioner: Mr. L.K. Venkat, a physically challenged individual, actively involved in social service through various initiatives across Tamil Nadu.

- Second Petitioner: Mr. Rajiv Rajan, also physically challenged, who was denied boarding by Air Sahara due to his disability.

The petitioners claimed that the airline's refusal to allow Mr. Rajan to board without a fitness certificate and an accompanying healthy person was discriminatory and violated Article 14 of the Constitution and the Disabilities Act.

Arguments Presented

Petitioners' Counsel: Argued that the refusal to board Mr. Rajan was discriminatory and degrading, contravening both national and international commitments to the rights of disabled persons. They emphasized the need to review the Aircraft Act of 1934 and the Indian Aircraft Rules of 1937 in light of constitutional and international standards.

  

Respondents' Counsel: Maintained that the existing rules (Rule 24A of the Aircraft Rules, 1937) were followed, which mandate certain conditions for the air travel of individuals with mental disorders. They argued that necessary facilities and amendments were being implemented to accommodate disabled passengers.

Court's Observations

The court examined a circular dated May 2, 2008, issued by the Director General of Civil Aviation (DGCA), detailing new requirements for the carriage by air of persons with disabilities. Key features included:

- Airlines must publish procedures for carrying disabled persons on their websites.

- Disabled individuals who can manage their personal needs independently should not be required to have an escort.

- Necessary assistance and aids, such as wheelchairs, should be provided without requiring medical clearance unless specific conditions are met.

- Procedures for boarding, seating, and handling complaints were outlined to ensure smooth and dignified travel for disabled passengers.

Judgment

1. Restoration of Complaint: The court ordered the restoration of the second petitioner's complaint (C.C.No. 37 of 2007) before the State Consumer Disputes Redressal Forum, which had been dismissed for default.

   

2. Implementation of DGCA Circular: The court recognized the DGCA's circular as a positive step toward addressing the grievances of physically challenged persons. It expressed hope for further progress in alleviating the challenges faced by disabled individuals during air travel.

3. Future Directions: The court emphasized the need for continued and more effective measures to protect the rights of disabled persons in the aviation sector.

Conclusion

This landmark judgment reaffirms the judiciary's commitment to enforcing the rights of persons with disabilities. By mandating the implementation of the Disabilities Act and recognizing the DGCA's proactive measures, the court has set a precedent for ensuring equal treatment and non-discrimination in air travel. The ruling serves as a reminder that the dignity and rights of all individuals, regardless of their physical abilities, must be respected and upheld in every aspect of public life.

Read the Judgement:

I am appending the judgement (courtesy Disability Legislation Unit-South) for your information and comments. 

Court: Madras High Court, India

Bench: Mr. Justice P.K.Misra and  Mr. Justice M. Sathyanarayanan

Case No: Writ Petition No. 23379 of 2007 

Date of Order: 30 June 2008

IN RE:

 1.    Mr. L.K.Venkat 

 2.    Rajiv Rajan                                             ..Petitioners 

  

Versus 

1. The Ministry of Civil Aviation Chennai Airport, Mennambakkam, Chennai. 
2. The Secretary to Government Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
3. Air Sahara Airlines, Kamarajar Domestic Terminal, No.1, Link Building, Trisulam, Meenambakkam, Chennai-600 022 
4. Chief Executive Air Sahara (now known as Jet Lite) S.M.Centre, Andheri Koria Road Andheri (East), Mumbai-400 059 
5. Chief Executive Officer, Jet Airways (India) Ltd, S.M.Centrem Andheri Koria Road Andheri (East), Mumbai-400 059* 
6. Director General of Civil Aviation Opposite to safdurjung Airport New Delhi 
7. Chief Commissioner for Disablilities, Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi-110 001 

(Cause title amended as per order dt.13.2.2008 in M.P.No.1 of 2007 in w.p.23379 of 2007) 

                                                                            …Respondents 

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus as stated therein. 

For Petitioners ….. Mr. P.B.Suresh Babu for Petitioners. 

For Respondents …. Mr. P.Wilson, Asst. Solicitor General for R1, R2,R6 & R7. 

M/S Guptha & Ravi for R3 to R5. 

 (Order of the Court was made by M.SATHYANARAYANAN, J) 

The writ petition is filed in public interest for the issuance of writ of mandamus directing the respondents 1 to 3 to strictly implement the provisions of the persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (in short “the Act”).  Thereafter M.P.No1 of 2007 was filed to implead the second petitioner and respondents 4 to 7, it was ordered on 13.2.2008 and accordingly, second petitioner and respondents 4 to 7 came to be impleaded as parties to this writ petition. 

2. The first petitioner is a physically challenged person and he is a Postgraduate degree holder in Master of Arts and also did graduation in Law. The petitioner is doing social services in the name of Makkal Thalaivar Iyya Moopanar Peravai by conducting Blood Donation Camps, Eye Camps, Aids Awareness Programmes and other social services especially in rural areas of all over Tamil Nadu. 

3. The first petitioner through newspaper reports came to know that the third respondent refused to board to board the second petitioner who is similarly affected buy a Polio Syndrome like the petitioner, on account of the fact that he is a physically challenged person. The second petitioner approached the third respondent to find out the reason why he was not allowed to board the aircraft and he was informed that unless he obtained fitness certificate from a doctor and accompanied by a healthy person to assist him during air travel, he will not be allowed to board aircraft. 

4. According to the petitioner, the attitude of the third respondent is in violation of Article 14 of the Constitution of India and also clear contravention to the above said Act. The petitioner also sent a notice through his lawyer on 23.06.2007 calling upon the respondents to implement the provisions of the above said Act and he was not favoured with any response. Therefore, the petitioner has filed this writ petition. 

 5. Mr. P.B.Suresh Babu, learned counsel appearing for the petitioners had made his submissions based on the averments made in the affidavit filed in support of the writ petition. The learned counsel for the petitioners also filed a memorandum in reply to the counter affidavit filed by the respondents 1 to 4. It is submitted by the learned counsel appearing for the petitioners that there were similar incidents pertaining to aircraft Sahara and Jet Airways and complaints have been lodged with Chief Commissioner, Disabilities and the said complaints are pending adjudication. It is further submitted by the learned counsel for the petitioner that persons with disabilities are facing discrimination and degrading treatment wherever they go., The rights of the disabled persons was first declared in U.N. Declaration on the rights of persons with disabilities in the plenary meeting held on 19.12.1975 and the said declaration is yet to be given full effect. 

6. It is also submitted by the learned counsel appearing for the petitioner that the provisions of the Aircraft Act 1934 and the Indian Aircraft Rules 1937 have to be reviewed in the light of the Constitution of India and the various commitments with the Government of India as made in the International Forums. In spite of the existing law, the facts would now disclose that the degrading treatment shown by the airliners are give recurrent and had been in different forms. Therefore, the writ petitioner has prayed for a declaration that the persons with disabilities constitute a separate class by themselves distinct from the medical ill or temporarily disabled persons and for a direction to review the Legislation and Rules relating to Civil Aviation and the lines of this understandings and also for the other consequential reliefs. 

7. The respondents 1 and 2 had filed counter affidavit. It is stated in the counter that as per Rule 24 A of Aircraft Rules 1937, the persons suffering from any mental disorder are prevented to be carried on board of the aircraft and it is subject to the provision which is as follows:- “(a) has not taken or used any alcoholic drink or preparation within 12 hours of the commencement of the flight; (b) is kept under proper sedative; if in a state of excitement, during the flight and stops enroute; and (c) is accompanied by an attendant, provided that in case he has been in a state of excitement requiring sedation within the 2 weeks preceding the date of commencement of the flight, he shall be accompanied by a registered medical practitioner and adequate escort who shall individually and collectively be responsible for ensuring that no alcoholic drink or preparation is taken by the person in their charge and that such person is kept suitable sedated during the flight and shops en-route.” It is further state in the counter that the said rule which allows disabled person to travel in an aircraft and the disabilities Act 1995, is already implemented in the Civil Aviation Sector and no discrimination is made against any disabled person. The Airport and aircraft have suitably been designed to have easy access to Airport and aircraft for the benefit of physically challenged persons. The Civil Aviation Requirement is being suitable amended in consonance with the Persons with Disabilities (Equal Opportunities Act) and necessary directions are contemplated to be issued to all the Airliners to facilitate the carriage of physically challenged passenger by air by virtue of the powers conferred under Rule 133-A of the Aircraft Rules, 1937. 

8. During the course of arguments Mr. P.Wilson, learned Assistant Solicitor General has produced a circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation, New Delhi, wherein the Civil Aviation requirements in respect of carriage by Air to persons with disability and or persons with reduced mobility came to be issued. The salient features of the said circular are as follows:-

 “4.2 The airlines shall formulate a detailed procedure for carriage of disable persons or persons with reduced mobility and publish the same on their website.  

4.6 Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of a n escort. 

4.9. Persons with disabilities not holding any certificate shall also be provided necessary assistance as well as the aids such as wheel chairs, ambulifts etc. In such cases during ticketing / check-in the individuals’ degree of disability and his need for assistance may be confirmed. Airlines shall not refuse carriage in such cases. However, cost of such facilities may be borne by passengers requiring them. 

Medical Clearance:- 

 5.1: No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who only require special assistance at the airport for assistance in embarking /disembarking and a reasonable accommodation in flight, who otherwise do not require any additional assistance. 

5.2: A medical clearance by the airline may be required only when the airline has received information that the passenger a) suffers from any disease, which is believed to be actively contagious and communicable: b) who, because of certain disease, or incapacitation may have or develop and adverse physical condition which could have an adverse effect during flight and on safety and emergency evacuation procedures: c) would require medical attention and / or special equipment to maintain their health during the flights; d) there exists a possibility of medical condition aggravated during or because of the flight; Note: Persons with specific disabilities should plan to have all required forms for assistance ready in advance, to avoid flight delays. Forms and information will be made available on each airline’s website. 

5.3: Any passenger having any of the conditions mentioned in 5.2(a) through 5.2(d) be subjected to prior clearance for air travel by the medial departments /advisors of the carrying airlines. In case the passenger has a connecting flight with another airline, this medical clearance should be accepted at the first point of check-in and the information transmitted by the first Airlines to the connecting airlines so that the passenger is not required to furnish the same again and again. 

5.4: Before refusing carriage of any such passengers, the airlines shall refer to their medical departments /advisors for advise/clarification in accordance with a procedure, which shall be documented by the airlines. For such clearance the airline may seek the necessary medical information from the passenger(s) concerned or their representatives. Any forms for such information to be provided to the passengers by the airline staff will be made available on the airline’s website. 

5.5: The airline shall enter for each person with disabilities or person with reduced mobility or incapacitated passenger the information sheet requiring special assistance. Notes:1 – The airline shall establish a procedure for expeditious clearance by their medical departments, where required, to avoid delays causing inconvenience to passengers. Airlines shall provide necessary forms and procedures on their web-sites and through their call-centers/ agencies to make the process simple. The passengers should pre=clear themselves with the airline in advance. Notes:2 - The airline shall ensure that at time of check in airline staff is alerted and shall verify that all needs required by such passenger in advance in the relevant forms have been made available. 

Notes:3 – The procedures involving medical clearance shall be documented and published in each airline’s web-sites.  

Boarding, Seating and Briefing:- 

7.1: Boarding:-

a) The presence of all categories of incapacitated passengers and persons with disabilities or reduced mobility with their escorts and any special arrangements made for them while on board, shall always be referred to the captain/senior cabin crew member.

b) Incapacitated passengers and persons with disabilities or reduced mobility and their escorts shall be offered pre-boarding facilities.

c) If passengers for any reason have to be offloaded, the highest possible priority for transportation shall be given to persons with disability or persons with reduced mobility, and to their escorts. 

9. The said circular also provides for complaint procedure. As per the said procedure, a disabled person or person with reduced mobility who considers that this regulation has been infringed may bring to the attention of the managing body of airlines, airport or other concerned authorities, as the case may be and on receipt of such a complaint, shall ensure speedy and proper redressal of these complaints. 

10. Mr. P.Wilson, learned Assistant Solicitor General of India has submitted that in view of the said circular which came to be issued with affect from 1.5.2008, the grievance expressed by the petitioners and persons similarly placed have been taken into account and appropriate remedial measures have been provided and hence nothing survives in the writ petition. 

11. Mr. Ravi, learned counsel appearing for the respondents 3 to 5 has drawn the attention of this court to the averments made in the counter affidavit filed by the third respondent. According to the learned counsel, when the second petitioner was brought to check-in counter the shift in-charge of the third respondent attended him and found that the passenger was not fit to travel by air and that nobody had accompanied him and that he was asked for a fitness certificate. However, he gave irrelevant answers and also later started shouting at the staff in an abnormal way. It is further submitted by the learned counsel appearing for the respondents 3 to 5 that the respondents 3 to 5 had fully complied with the provisions of Indian Aircraft Rules 1937 as well as IATA medical manual. It is further submitted by the learned counsel that the second petitioner had invoked the jurisdiction of the State Consumer Redressal Forum by filing C.C.NO.37 of 2007 claiming compensation and the same was dismissed for default. As respondents 3 to 5 had complied with the laws applicable to them, the learned counsel for the respondents 3 to 5 submits that the present writ petition lacks merits and is liable to the dismissed. 

12. We have considered the submissions made by the respective counsel appearing for the parties and also perused the affidavit filed in support of the writ petition, counter affidavits, reply to the counter affidavit filed by the parties and also the circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation. 

13. A perusal of the circular dated 2.5.2008 issued by the Director General of Civil Aviation would reveal that positive steps have been taken to alleviate the grievances of physically challenged persons in right earnest by the Director General of Civil Aviation and we hope and trust that further progress will definitely be made by the concerned authorities to redress the day to day problems faced by the physically challenged persons while they travel by air. 

14. The second petitioner herein has filed a complaint before the State Consumer Disputes Redressal Forum, Chennai in C.C.No. 37 of 2007, which came to be dismissed for default after the filing of this writ petition. The second petitioner was under the bona fide belief that he can get all reliefs in this writ petition and hence, allowed the said complaint to be dismissed for default. The alleged agony undergone by the second petitioner on 18.06.2007 was seriously disputed by the third respondent in its counter affidavit and aggrieved by the same, originally the second petitioner had filed the above said complaint before the State Consumer Disputed Redressal Form, which came to be dismissed for default as the second petitioner felt that in view of his impleadment in the writ petition, he cannot prosecute the said complaint. 

15. The question as to whether such person would be entitled to receive compensation obviously depends upon many factual findings based on evidence and the High Court is ill-equipped to deal with those aspects. However, we feel that the second petitioner should not suffer on that account and in the interest of justice, we feel; that without any application, the complaint in C.C.No. 37 of 2007 which was dismissed for default, can be restored to file and decided on its own merits. 

16. We heard the learned counsel appearing for the respondents 3 to 5, who very fairly submitted that such an order of restoration can be passed in this writ petition itself. Accordingly, C.C.No.37 of 2007 filed by the second petitioner before the State Consumer Disputes Redressal Forum, Chennai, which was dismissed for default, stands restored to its file and it can be disposed of on its own merits. 

17. The circular dated 2.5.2008, issued by the Director General of Civil Aviation is an effective step in a right earnest. We feel that more effective steps have to be taken to alleviate the grievance of persons who are physically challenged and we hop and trust that such steps will definitely be on the cards. The writ petition is disposed of on the above terms. In the circumstances, there will be no order s to costs.

 Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar Gr. 

 To 

1. The Ministry of Civil Aviation, Chennai Airport, Meenambakkam, Chennai. 

2. The Secretary to Government, Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 

 3. Air Sahara Airlines, Kamarajar Domestic Terminal. No.1, Link Building, Trisulam, Meenambakkam,Chennai-600 022 

 4. Chief Executive, Air Sahara (now known as Jet Lite). S.M.Centre, Anhjeri Koria Road, Andheri (East), Mumbai – 400 059. 

 5. Chief Executive Officer, Jet Airways (India) Ltd., S.M.CentreAndheri Koria Road, Andheri (East), Mumbai-400 059. 

 6. Director General of Civil Aviation opposite to Safdurjung Airport, New Delhi. 

 7. Chief Commissioner for Disabilities , Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi – 110 001. 

1 cc To Mr. P.Wilson, Advacate, SR.33533. 

1 cc To Mr. Gupta & Ravi, Advocate, SR.33150 

1 cc To Mr. P.B.Suresh Babu, Advocate, SR. 33188. w.p.no.23379 of 2007 nsm(co) 

RVL 11.07.2008