Kerala HC quashes HPCL's stipulation denying distributorship on groud of blindness [Judgement Included]

Dear Colleagues,

In a writ petition W.P.(C).No.29046/2013 titled Baby P. Versus M/s Hindustan Petroleum Corporation Limited, the Honorable Kerala High Court vide its judgement dated 30 May 2016 has quashed the stipulation that ‘totally blind person is ineligible’ for LPG distributorship as violative of Article 14 of Constitution of India.

The petitioner, P. Baby of Thiruvananthapuram, a totally blind person, applied for LPG Distributorship at Kodiyathoor in Kollam under S.C.(C.C) category. But his application was rejected by the respondent on two grounds, one of them being that a ‘totally blind person’ was ineligible to apply for LPG distributorship & the other being lack of own space for operating the agency. The petitioner had submitted that he was willing to take on rent adequate space to run the agency.

Quashing a part of the norms formulated by the petroleum company that allowed denying distributorship to persons who are completely blind, the court held that it amounts to violation of the constitutional right to equality before law and denies equal opportunity to blind persons.

In the judgment, the court said if a disability doesn't prevent a person from performing a job, such a disability cannot be the reason for denying the job. Denying a job citing disability can only be allowed if the disability prevents the person from performing the functions associated with the job. Denial of jobs citing disability becomes necessary only in special circumstances such as driving, the court said. 

The petroleum company had contended that if a blind person such as the petitioner is granted LPG distributorship, he won't be able to inspect complaints related to cylinders and that inspection of cylinders to rectify complaints is a job that requires maintenance of the highest safety standards. However, the court said those who formed the norms ousting blind persons completely from grant of distributorships are unaware of the fact that they are able to perform such tasks that require a high degree of specificity. 

Delivering the judgment, Justice Muhammed Mustaque, opined that the above stipulation of classification  was unreasonable, since it  had no nexus with the purpose sought to be achieved. The bench opined:- “The classification in the case in hand appears to have been made based on the broad generalization that the Distributorship can be run only by persons of certain abilities. Such a classification ex facie appears to be unreasonable and unsustainable. Though, the object of such prescription appears to be that in order to carry out day-to-day affairs, constant vision of the Distributors is required. The vision of eye sight, in fact, has nothing to do with the functions being discharged by the Distributors. A blind person is also endowed with a vision. Though, he cannot physically see an activity, with his insight vision he can run a Distributorship. Therefore, the object of classification must have a nexus with the purpose and intent to be achieved.

The modern technological advantages and improvement of social conditions of the blind cannot be ignored while considering the functional duties attached with Distributorship.” The court further elaborated its stand, by employing the Doctrine of strict scrutiny developed by American courts, wherein the general presumption available for a statute,  on its validity cannot be invoked for an executive action, but the onus is cast on the proponent of the classification to establish its constitutionality.

The Court thereupon proceeded, to determine the constitutionality of the stipulation and whether the same   causes reverse discrimination. Answering the query in affirmative the court ruled:-“The blind persons cannot be treated as a separate class except for affirmative action or for the purpose of functional duty attached with an office or post. They are equally competent and have all competitive and cognitive skills similar to the able bodied persons except lacking visionary functions. Therefore, they can be treated as a separate class for the purpose of affirmative actions or for any other purpose relating to the functional competence of the duties attached to the post/office.

As has been noted above, the doctrine of scrutiny casts a duty on the policy makers to justify discrimination and not otherwise. In this case, absolutely no materials have been placed before this Court to justify classification.” Terming the stipulation as violative of Article 14, the court observed:- “The equal opportunities for a blind person cannot be negated unless the functions that have to be discharged by him intrinsically, cannot be separated from his disability, such as persons like drivers or such other functionaries who may require vision for carrying out the function. A blind person would be also able to discharge the same functions as that of an able bodied person without any impediment as far as LPG Distributorship is concerned. Therefore, this Court is of the view that the stipulation in the Brochure that a “totally blind person is ineligible” is violative of Art.14 of the Constitution. Accordingly, the clause as above is set aside.”

Judgement dated 30.05.2016

W.P.(C).No.29046/2013 Baby P. Versus M/s Hindustan Petroleum Corporation Ltd.

Media stories  

Times of India - Disability not a bar for jobs they can perform: HC

The Hindu (HC Questions denial of job to visually impaired)

The Live Law- Kerala HC quashes stipulation that ‘totally blind person is ineligible’ for LPG distributorship as violative of Article 14 of Constitution of India

Franklin Institute's policy of charging attendant of disabled patron held discriminatory

Federal Judge orders Franklin Museum to change admission policy of charging the attendant of disabled patron since it would be deemed discriminatory to disabled under the provisions of ADA.

A federal judge has ordered the Franklin Institute to stop discriminating against disabled patrons by making personal-care attendants pay entrance fees.

The court order follows a 2013 lawsuit alleging that the nonprofit museum's policies prevented some disabled people from enjoying all the institute has to offer by charging their caretakers for the price of admission.

Lead plaintiff Michael Anderson has cerebral palsy and uses an electric wheelchair with the help of a full-time personal attendant. His attendant was charged at the door and for special offerings at the institute.

For instance, when Anderson tried to attend an Imax screening, he was told that his attendant must buy a ticket, a position that attorneys for the institute defended in federal court for more than two years. They have argued that waiving the fee could, eventually, cause the nonprofit to run a deficit and even trigger layoffs.

"The illogic of the institute's position is as striking as its hyperbole," wrote U.S. District Judge Gerald McHugh Jr.

McHugh wrote that he's "frankly puzzled" that the Franklin Institute would resist following the law — the Americans with Disabilities Act — because it could dampen ticket sales. 

"To credit such a theory would not only render the ADA meaningless, but endorse a result inimical to its purposes," he wrote.

According to institute attorneys, personal-care attendants are no longer charged the $19.95 cost of general admission. However in filings, they contend the institute cannot extend the policy to Imax screenings and other special exhibits that have limited seating.

Now, the institute is under a court order to change that. 

The institute provides personal-care attendants with a folding chair to sit in an upper section dedicated to wheelchair seating for Imax screenings. Arguing that waiving the folding chair cost is hurting the museum's revenue is "nonsensical," the judge wrote, since those seats are not available to the general public.

The institute does not keep records on how many people with disabilities are accompanied by personal-care attendants, making the financial impact of waiving the folding chair fee difficult to quantify. Furthermore, the majority of Imax and special exhibits never even reach 50 percent capacity, McHugh wrote.

"No reasonable fact-finder could conclude that an occasional $1 loss to a $135 million organization constitutes an unreasonable cost or an undue financial burden," the judge wrote.

In a statement, the Franklin Institute said it has a long history of serving the disabled community through education and outreach programs. 

"We strongly disagree with the decision," said spokeswoman Stefanie Santo, saying the institute will now "explore all of our options." 

The Miami-based attorneys representing the institute never returned calls seeking comment.

Attorney Stephen Gold, who represented the plaintiffs in the case, said without caretakers, many severely disabled people in the Philadelphia area cannot partake in the region's cultural offerings.

"We hope that museums and other institutions throughout the country will modify their policies to conform to the ADA," he wrote in a statement.

Source: Newsworks

Consent Decree filed to ensure Physically Accessible Polling Centres in Augusta County, Virginia

Dear Colleagues,

The US Justice Department announced today that it has filed a complaint and proposed consent decree today in the U. S. District Court for the Western District of Virginia resolving allegations that Augusta County, Virginia has discriminated on the basis of disability by failing to provide physically accessible polling places to people with mobility and vision disabilities. Title II of the ADA requires public entities to ensure that all of their polling places are accessible to people with disabilities.

Under the consent decree, which must be approved by the court, the County agreed to make permanent architectural changes to a number of polling place facilities, and to provide temporary measures such as portable ramps and temporary doorbells at others, to provide accessible polling places throughout the County. The County, which cooperated with the United States, also agreed to revise its policies and polling place survey instrument, and provide training to poll officials.

Click here to read the Consent Decree. However, it throws light that disability continues to be a subject last on the agenda of administration -some times due to lack of awareness and while other times due to lack of enforcement - both in developed as well in developing world. Glad that Deptt of Justice has taken this initiative to make Polling Process accessible to residents with Disabilities in Augusta County and also to create mechanism for monitoring and enforcement for a longer term.

A person with 71% physical disability can't study Medicine - says MCI's resolution!

Dear Colleagues,

The resolution of Medical Council of India that the disability must be between 40 per cent and 70 per cent to be eligible for admission and for seeking a seat reserved for candidates with physical disability itself is faulty. The degree of disability is a medical model and can not be a conclusive reason to declare what a person with disabilities can do or not do. Then we have highly subjective disability evaluation system wherein two different doctors give different grading of disability to the same person. A person with 71% will thus be technically outrightly rejected for the wrong assessment due to subjectivities involved.

Hon'ble High Court may have given the benefit to the petitioner in the instant case, however, technically even the bench is not competent to decide on the degree of disability, unless doubting the State Medical Board's assessment, it ordered for re-constitution of Medical Board which gave an otherwise recommendation on it. 

At the most, the bench could have expressed its opinion on the discernible abilities of the petitioner observed by them and ordered accordingly. I feel, getting in to guess work of percentage of disabilities is like falling in to the trap of 40-70 percentage set out by the improper and unreasonable resolution of the MCI which is not supported by the disability legislation in the country. This classification has been created by MCI of its own which doesn't stand the test of law.

Here is the news coverage:

Reconsider admission of physically disabled student: HC

A special medical board set up by the state government had found the student unfit for health science courses and ineligible for a seat under the physically disabled quota as his disabilities stood at 88 per cent.

Written by Ruhi Bhasin | Mumbai | Published on:June 26, 2015 2:50 am

Noting the movements of a physically disabled student inside the courtroom, the Bombay High Court has directed the state government to consider his admission in the first of year MBBS course. The student was earlier denied admission under the physically handicapped quota.

“He (petitioner) has been walking with braces and having seen his physical movements in the court room, we are of the view that his disability cannot be assessed as 88 per cent. His case should be considered for admission to the first year MBBS course on the basis that his disability is between 50 per cent and 70 per cent ,” said Chief Justice Mohit Shah and Justice A K Menon.

Earlier, a special medical board set up by the state government had found the student unfit for health science courses and ineligible for a seat under the physically disabled quota as his disabilities stood at 88 per cent. While under the Medical Council of India resolution, the disability must be between 40 per cent and 70 per cent to be eligible for admission and for seeking a seat reserved for candidates with physical disability.

The HC, however, directed the state government to consider his case on the basis of his marks obtained by him in the common entrance, MH-CET, 2015, for admission to first MBBS course in a seat reserved for physically handicapped.

The student had sought admission to the first year MBBS course in the Government Medical College in a seat reserved for physically handicapped on the ground that his disability is between 50 percent and 70 percent.

He was born on March 18, 1996 and had been suffering from congenital disability involving both the lower limbs due to Bilateral Congenital Dislocation (CHD) of hip and Congenital Talipes Equinovarus (CTEV).

From 1996 to 2004, his father who is a doctor, provided him with treatment and care, including multiple surgeries and physiotherapy.

The boy underwent five surgeries on the deformities and the correction was carried out to the extent that there is no more dislocation of the hip joint.

There were, however, restrictions to the hip joint while doing physical activities of the lower limb. Pooja Thorat, the petitioner’s lawyer, informed the court that the special medical board has examined him without wearing braces. “He, infact, was wearing braces even while studying in school and was himself commuting from his residence to the school,” the lawyer had submitted.

Source: Indian Express

UPSC discriminates against disabled in Civil Services Exam - PIL

HC notice on PIL on quota for disabled in civil services exam

Last Updated: Saturday, June 20, 2015 - 00:58

New Delhi: The Delhi High Court today sought response of the Centre and UPSC on a plea by an organisation for disabled persons seeking quashing of the civil services exam notification alleging non-implementation of statutory three per cent quota for handicapped persons.

A bench of justices Mukta Gupta and P S Teji issued notice to the Ministry of Personnel, Public Grievances and Pensions and Union Public Service Commission (UPSC) and sought their reply by July 15 on the plea by Sambhavana which has alleged non-compliance of high court's orders.

Sambhavana has claimed that as per the examination notice, approximately 1129 vacancies are expected to be filled, out of which only five vacancies have been reserved for candidates with visual impairment, whereas the Supreme Court in 2013 had held that three per cent reservation on total number of vacancies in the cadre strength have to be reserved against candidates with disabilities.

In its PIL filed through advocates Pankaj Sinha and Nupur Grover, Sambhavana has alleged "blatant disregard" on the part of the central government and UPSC for neither following high court's orders nor complying with provisions of the Persons With Disabilities (PWD) Act.

"The examination is also being conducted in contravention of the guidelines for conducting written examination for Persons with Disabilities notified by the Ministry of Social Justice and Empowerment which have also been held to be mandatorily followed in various judgements passed by this court," the petition has said.

Besides not implementing the quota, it has said UPSC also did not adopt the exam writing policy for disabled on the basis of guidelines of the Chief Commissioner for Persons with Disabilities (CCPD).

It has claimed that due to non-implementation of the high court's directions, disabled aspirants are unable to give exams in an accessible environment.

The organisation has said that as per the PWD Act, it is the statutory obligation of the government to "appoint not less than three per cent vacancies for the persons or class of persons with disabilities".

"This implies that the minimum level of representation of persons with disabilities deals with the distribution of this three per cent among the three categories of disabilities namely, blind and low vision, hearing impairment, locomotor disabled or cerebral palsy and hence, one per cent of seats should be reserved for each of the said categories," it has said.

"It is pertinent to note that in the impugned examination notice, the three per cent reservation has not been adequately meted out by Respondent No. 2 (UPSC) and hence, discrimination on the basis of blindness has been clearly shown," the plea has said.

The petition has sought equal bifurcation of the vacancies amongst the three categories as well as directions to the government and UPSC to implement the executive order of Department of Disability Affairs, Ministry of Social Justice and Empowerment, with respect to "uniform guidelines for scribes for persons with disabilities."

It has also sought "filling up of all backlog vacancies of persons with disabilities arising since 1996 till date".  

PTI/ Zee News

Kerala High Court: Non-consideration of VH candidate by Kannur University illegal

Terming the non-consideration of VH candidate and appointment of another candidate on the post reserved for persons with Disabilities as illegal, High Court has directed the Kannur University to appoint the visually impaired petitioner within two months.


HC to the aid of visually challenged woman

KOCHI, June 9, 2015
K.S. SUDHI

The High Court of Kerala has come to the support of Prasannakumari, a visually challenged woman from Chottanikkara, who appeared for an interview to a post of lecturer in law reserved for disabled persons in Kannur University.

Justice A.K. Jayasankaran Nambiar of the High Court ordered Kannur University to consider the suitability of Ms. Prasannakumari “for the post notified by treating her as a candidate who has the necessary age qualification for the post and is otherwise eligible for the post.”

The court also ordered the university to complete the aforesaid exercise within two months.

In her writ petition, the 40-year-old woman stated that she applied for the post of lecturer in law, reserved for the physically challenged, in 2008 and appeared for the interview on October 5, 2011.

Later, she received information that another woman had been appointed to the post.

The petitioner approached the court to quash the appointment and direct the university to consider her for the post.

Allowing the petition, the court held that the “action of the university in not considering the suitability of the petitioner for the post of lecturer in law, under the quota earmarked for the physically challenged candidates, is clearly illegal.”

The court also declared illegal the appointment of another candidate to the post that was intended for physically challenged candidates, consequent to a finding that no such candidate was available.

The appointment of another candidate as the lecture in law was also annulled by the court.

Source:  The Hindu 

Chief Commissioner Disabilities directs UPSC to withdraw discriminatory performa

UPSC asked to withdraw ‘discriminatory proforma’

The Court of Chief Commissioner for Persons with Disability has directed the Union Public Service Commission (UPSC) to withdraw its “discriminatory performa”. It has directed the UPSC to refrain from asking persons with disabilities to submit photographs showing their disabilities and to consider the ‘permanent disability certificate’ issued from a government hospital as a valid proof.

The action comes following an intervention by Dr. Satendra Singh, who has been working in the area of disability rights and had written to the UPSC against “its discriminatory policies”.

“Despite having a valid disability certificate, the UPSC asks all applicants to use their own format for disability certificate. This is against the existing guidelines but nobody challenged the UPSC. Moreover, the format asks applicants to paste ‘photo showing disability’, which is not only discriminatory but also infringement of right to privacy. An example – how can an amputee female attach her photograph?’’ asked Dr. Singh.

He added that in a follow-up to his complaint, he also quoted the Amended Persons with Disabilities Rules 2009, which were circulated to all the Ministries/Departments (Rules 3 to 6 of Chapter II relating to Disability Certificate as per Ministry of Social Justice and Empowerment’s notification in November 2013.

“The amended rules show the format to be used for disability certificate and none of them asks ‘to showcase disability’,” said the physician.

He further pointed out that Rule 6 of the same order clearly states that a certificate issued under Rule 4 is to be generally valid for all purpose. “When a person already has a valid government certificate of permanent disability why does he have to get his disability certificate again in the prescribed form of the UPSC?’’ questioned Dr. Singh.

Source: The Hindu

Physically Challenged Versus Logically Challenged

Dear Colleagues,

There is an inherent bias in the executive when it comes to giving equal opportunities to those living with disabilities in employment despite the tall claims on paper by the Government and harshest judgements from the Courts criticizing the executive and the government. Now whether it is born out of age old mis-beliefs, myths and resultant negative attitudes towards the disabled or an utter lack of awareness about the possibilities and potential of those living with disabilities - the result is insurmountable barriers for disabled people on every step of their lives.

A committee of High Court Judges decides that those with vision impairments and those with hearing and speech impairment can not function as Judges (Blind/deaf can't be judges, say govt and HC; PIL questions it), the Babus decide what a person with disabilities is capable of, without even knowing a, b, c of disability! And these decisions are taken in solo without involving those with disabilities or their organisations. 

We recently saw certain candidates with disabilities who passed the UPSC's Civil Services Examination way back in 2007 -08 continue to await allocation of posts! The principles of natural justice particularly in a democratic set up as ours, demand that an opportunity of being heard be given to those affected by the proposed action. This is amazing way of functioning displayed by the Indian bureaucracy where the bureaucrats and not the law decides whom they want to allow in their gang!

Section 32 and the List of Identified Jobs

The List of Identified Jobs for persons with disabilities which had been prepared by the Babus with some experts from field also on the panel has done more harm than good for persons with disabilities of this country.  The list has been used to deserving people out by State governments from several key posts. The successive committees of babus have not allowed the stakeholders to even know what was added or removed in the successive list of jobs published through gazettes. Each time a list of published, the earlier was removed from the website, without even explaining what new post(s) have been added or deleted from the list and the basis for the same! And this business of identified jobs has been in business since 1989 even before the disabilities Act came in to force.

The list doesn't seem to have applicability in all the states and union territories since so many states (read babus) have published their own selective lists of posts (read... unimportant posts) jobs, keeping the posts to the minimum that could be held by  persons with disabilities. Certain states and Ministries have been on an exemption seeking spree under the proviso of Section 33 of the Disabilities Act. For instance the post of Judge has been identified in the Central List whereas states like West Bengal, Kerala, Tamil Nadu and Uttar Pradesh seems to have taken regressive steps by obtaining exemptions of judicial posts from the purview of section 33 (reservation in favour of persons with disabilities particularly against the candidates with visual and hearing and speech disabilities.)  

3% reservation in promotion under Section 33 

Similarly, by twisting the interpretation of section 33, the Babus have for long denied the 3% reservation in promotional posts to employees with disabilities particularly in group A and B posts citing various untenable reasons.  

Now the Bombay High Court has dealt with the issue in a PIL filed by an NGO - National Confederation for Development of Disabled. The petition pointed out that the ratio of percentage of direct IAS to IAS by promotion or election was 67% : 33% in Maharashtra state at present. Thus effectively, out of 100 new posts, 67 were being filled by people who have been directly recruited in the IAS category and 33 posts were filled by state civil service officers.  Thus the reservation in 33% promotional posts was being denied to the disabled officers from State Civil Services (for the impugned executive orders provide for no reservation in promotion in Group A and B posts!).

In a remarkable judgement the Division Bench of Chief Justice Mohit Shah and Justice M S Sanklecha has on 04 December 2013, directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota i.e.  now reservation would be applicable on all the 100 posts.   The court held that it is clear  that  reservation has  to  be computed with  reference to  total  number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion.  Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. 

Judgement

Download the above Bombay High Court judgement in PIL No. 106 of 2010  titled National Confederation for Development of Disabled and another versus Union of India and ors.  (PDF 132 KB) or read below:






Manner of computation of reservation under Section 33

The manner of arriving at or computing 3% reservation in various posts has not been spelled out in the Act. and thus in exercise of the powers conferred by sub-sections (1) and (2) of Section 73 of the Act, the government (read babus) used their discretion to spell it out through executive orders (read DoPT Memos) thereby restricting the reservation benefits to the minimum particularly in Gp A and B posts.  

For Eg. Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities, wherein the 3% reservation for the disabled persons was being computed by taking into account the total number of vacancies arising in Group C and D posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Group D posts. 

However, interestingly, when it came to Gp A and B posts, it was specifically restricted to be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment.

Justification to such a restriction given was that since the reservation for Group C and D posts is being calculated on the basis of the vacancies in identified as well as unidentified posts prior to the Act came into existence and in view of the provisions of Section 72 of the Act (Act to be in addition to and not in derogation of any other law), continued in the same way, however, reservation for Group A and B posts is  to be calculated on the basis of the vacancies for identified posts as per the provisions of the Act.

The court thus decided that the modus of computation of reservation on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength will uniformly apply to Group A, B, C and D and not just Gp C and D). Supreme Court Judgement dated 08 October 2013 in Union of India  Versus National Federation of Blind (Civil Appeal 9096 of 2013) (click on link for judgement).

Accordingly, the DoPT  issued a revision on 03rd December 2013 to its Memo dated 29.12.2005 (click link for a copy)

The way ahead

The tendency of the Government (read Babus) is to find ways to block the entry of the disabled into the mainstream of employment. This undeclared blockade has no direct link with abilities of persons with disabilities and indicates a greater malady that exists in our system. This can only be tackled by a sincere attempt to raise awareness of all government employees from the top order to the lowest about the capabilities of the disabled and also supporting employees with disabilities with reasonable accommodation and equal opportunities to work and prove their worth. At the same time, the executive has to be interpret the benevolent provisions of the Act so as to give effect to the will of the legislature and the mandate of international convention called UN CRPD. 

One out of box idea is to scrap the Identification List  and  the present system of effecting reservation on identified posts. Let all posts be open for persons with disabilities with only condition that each person showcases how he/she will perform the functions of that post. Those competing on merit be not adjusted against reserved vacancies (policy exists but seldom implemented thereby defeating the intent of legislature of minimum 3% reservation). The government on their part must provide reasonable accommodation and an enabling environment to the employees with disabilities. I am sure this will work out and we must give it a try.

Here are some stories on such undeclared blockade and court intervention that recently made headlines in Indian Express and Times of India.

Civils: Centre, state told to implement quota rules for disabled 

Aamir Khan, Indian Express, Mumbai, Thu Dec 05 2013, 11:58 hrs

The Bombay High Court on Wednesday directed the state and Union governments to implement the rules of reservation for differently-abled candidates in civil services. The court also said the rules would apply during promotions.

The court was hearing a PIL filed by the National Confederation for Development of Disabled, stating that the People With Disabilities (PWD) Act was being violated. It sought the implementation of the rule, which provides 3 per cent reservation to disabled people in civil services recruitment. Directing the state and the Union government to implement the rule, the division bench of Chief Justice Mohit Shah and Justice M S Sanklecha directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota.

The petition said the ratio of percentage of direct IAS to IAS by promotion or election was 67%:33% in the state at present. "Therefore, out of 100 new posts, 67 are filled by people who have been directly recruited in the IAS category and 33 posts are filled by state civil service officers. As per the PWD Act, three per cent of the posts in the IAS are reserved for such class of people. Thus, reservation should be applicable to all the 100 posts," the petition stated. It also contended that the quota for PWD had not been filled for 15 years. According to the Constitution, the authorities are under obligation to apply the provisions of the PWD Act. Granting relief to the petitioners, the HC disposed of the petition.

Source: Indian Express

Disabled people clear UPSC, but wait for service allocation

Rema Nagarajan, TNN | Dec 2, 2013, 04.55 AM IST

MUMBAI: Several persons with disabilities (PWDs) who crack one of the toughest exams in the country and get selected for the civil services are routinely rejected with the government claiming there is no suitable service for them. 

Source: Times of India, 02nd Dec 2013

They are good enough to overcome their disability and get selected for the civil services after clearing two levels of exams and the interview, but the Department of Personnel and Training, the allocating authority, rejects them and cancels their candidature.

In the last two years alone, out of 67 such candidates who got selected, 11 are still waiting to be allocated services. Many selected PWDs are allocated lower services  than their ranking merits, on the plea that the nature of their disability prevents them doing the job in most services.

So how do babus sitting in offices decide what candidates with varying levels and kinds of disabilities are capable of? The answer lies in a totally arbitrary list called "list of services identified suitable for physically disabled category along with physical requirements and functional classification" published in the gazette. It lays down what service a successful candidate with disability can get. For instance, under the category of locomotor disability, if the disability affects both hands or arms, you can get into the most sought-after Indian Administrative Service (IAS) but you would not be eligible for any of the other 23 services.

Again, the Delhi Andaman and Nicobar Islands Police Service (DANIPS) is open to those with one leg affected or whose hearing is impaired. However, there is no place for people with these or any other disability in either the Pondicherry Police Service or the Indian Police Service (IPS). How different can the job be in different police services? In an age of economic crime and cybercrime, will the police service be limited to physical fitness or brawn and not brains?

All accounts services, the Indian P&T Accounts & Finance Service, Gr.A, Indian Civil Accounts Service, Gr. A and Indian Railway Accounts Service are open someone with one arm (OA) or one leg (OL) affected or with one arm and one leg affected (OAL) and to those with both legs affected (BL). However the Indian Audit & Accounts Service Gr. A alone is not open to persons with both legs affected. Why is only this accounts service not open to people with both legs affected? Nobody seems to know.

"My disability says both legs affected. But I use crutches and can do all jobs. However, most services are closed to me because some officials who have never met me decided that if both legs are affected, I must be immobile or unable to do most jobs. It is totally unfair. This identification of service has to be done away with. Let them select us, meet us, see what we can do and allocate us services accordingly and by our ranks," says a candidate who cleared the exam earlier but will be appearing again for the civil service exam on Monday, hopeful of getting in again through the 3% quota in all services for PWDs mandated by the Disability Act 1995.

The identification of service ought to be abolished as it is discriminatory under the Disability Act and under international conventions signed by India on ensuring equal rights to the disabled, pointed out yet another PWD. 

Officials in the DoPT did not comment despite several attempts to get their version."Frankly, I am appalled that nine years after this issue was first brought to light, it remains unresolved, that too, against the express orders and directions of the Prime Minister. If the country, the government and the prime minister's office in particular wish to demonstrate their true commitment towards protecting the rights of India's disabled citizens, they ought to resolve this issue once and for all," said Javed Abidi of the National Centre for Promotion of Employment for Disabled People (NCPEDP). He added that in protest against such apathy, NCPEDP will not take part in the "charade" of celebrating World Disability Day on December 3 when "speeches would be delivered, advertisements issued, and some more false promises made".

News Source: Times of India

Hospital refused Sign Language Interpretor - sued for disability discrimination under ADA

Department of Justice Files Lawsuit Against Vero Beach, Fla. Doctor and Medical Practice for Retaliating Against Deaf Couple

Monday, July 29, 2013

The Department of Justice announced today that it has filed a lawsuit against Dr. Hal Brown and Primary Care of the Treasure Coast of Vero Beach, Fla. (PCTC), alleging that the doctor and the medical practice violated the Americans with Disabilities Act by discriminating against Susan and James Liese, who are deaf. The complaint alleges that the doctor and the practice violated the ADA by retaliating against Mr. and Mrs. Liese because they engaged in activities protected under the act.  The suit was filed in the U.S. District Court for the Southern District of Florida in Ft. Pierce.


According to the Justice Department’s complaint, the doctor and medical practice terminated Mr. and Mrs. Liese as patients because the couple pursued ADA claims against a hospital for not providing effective communication during an emergency surgery.  The hospital is located next door to and affiliated with PCTC.  The complaint alleges that the Lieses threatened the hospital with an ADA suit based on failure to provide sign language interpreter services, and upon learning of the lawsuit, PCTC and Dr. Brown, who was the Liese’s primary doctor at PCTC, immediately terminated the Lieses as patients.

“The Department of Justice is committed to enforcing the provisions of the ADA that protect an individual from retaliation when he or she opposes disability discrimination and prohibit interference with an individual in the exercise of rights granted by the ADA,” said Jocelyn Samuels, Acting Assistant Attorney General for the Civil Rights Division.  “A person cannot be terminated as a patient because he or she asserts the right to effective communication at a hospital.”

The enforcement of the ADA is a top priority of the Justice Department’s Civil Rights Division.  The ADA prohibits retaliation against an individual because they oppose an act that is unlawful under the ADA and because they made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under the ADA.  The ADA also makes it unlawful to coerce, intimidate, threaten or interfere with any individual exercising their rights protected by the ADA.  The department’s Civil Rights Division enforces the ADA, which authorizes the Attorney General to investigate allegations of discrimination based upon disability. Visit www.justice.gov/crt and www.ada.gov to learn more about the ADA and other laws enforced by the Civil Rights Division.

Source: US Department of Justice

Mechanical and Rigid implementation of Disabilities Act is against the legislative intent

Dear Colleagues,

The cases as below wherein the courts as well as lawyers fail to appreciate the basic intention of the legislature behind the benevolent Persons with Disabilities Act 1995 are indicative of the ignorance in the legal fraternity on the rights of the persons with disabilities.

The DoPT memorandum dated 29 Dec 2005 categorically states in para 22 as under:

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. 

However, rigid cut off marks as 90% would defeat the very purpose of the Disabilities Act and the courts must look at the legislative intent before dismissing such petitions mechanically. An appeal against this order must be preferred in the next superior court to set the things right.

Here is the news coverage from Indian Express 16 Jul 2013

No quota job if cut-off isn't met

The Madras High Court on Monday rejected a plea from K Kumaravelu of Marudhur South village in Nagapattinam district, praying for a direction to Teacher Recruitment Board (TRB) to appoint him as a secondary grade teacher under the priority quota for physically-disabled persons.

After passing the higher secondary examination, Kumaravelu, belonging to a backward class community, completed diploma in teacher education, in 2009. During his school days, he met with an accident and his right leg below the knee had been amputated.

He was issued a certificate by the Joint Director, Medical and Rural Health and Family Welfare in Nagai, fixing his disability at 60 per cent. He also appeared for the TET and obtained 83 per cent marks.

The petitioner contended that against the total vacancy of 12,000 posts, 3 per cent of 360 posts had to be earmarked for the disabled under Sec 33 of the Person with Disability Act, 1995.

Very few candidates were selected under this section. Hence, he must be given accommodation, after giving relaxation in the requirement of 90 per cent marks, he pleaded.

Additional Government Pleader P Sanjay Gandhi submitted that the minimum eligibility marks under the Act was 90 per cent.

No person could claim any relaxation in the matter, he added.

Indian Express 16 July 2013

Court of CCPD issues notices to Department of Disability Affairs, GOI

Dear Colleagues,

Even after more than 16 years of the Persons with Disabilities Act 1995, there is no Uniform Guideline for availing scribes and writers by the persons with Low Vision and Blindness. The candidates continue to suffer in absence of such guidelines and are often on the mercy of the institution/ departments  both in the matter of studies as well as employment.

A recent PIL by the undersigned against ICAI for putting forth unreasonable guidelines for blind students was just an example in the recent past of such hardships faced by the visually impaired students/persons. Please see my earlier posts dated 26 April 2012 and 02 May 2012 on the subject. The court did solve the problem with its pro-active Order the same day for visually impaired students of ICAI but how many students and how many times will be able to afford going to knock the doors of judiciary?

In the year 2005, All India Confederation of Blind had also drafted a detailed guideline for the scribe highlighting the issues and shared with the Chief Commissioner Disabilities and the  concerned Ministry. This was also discussed during the annual meeting of the State Commissioner's Disabilities in subsequent year. However, it remained pending for a long time due to inaction of the then Disability Division (now Department of Disability Affairs).

Through a consultative process lead by Score Foundation, over 70 organisations working with the Persons with disabilities in India (especially Low Vision and Blind) to which I have been a party myself, had suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons" and sent to  of Social Justice & Empowerment for their acceptance. However, it seems the Ministry has some other priorities than the every day sufferings of the stakeholders for which it exists.

The Department of Disability Affairs, Ministry of Social Justice & Empowerment is the nodal department to coordinate the implementation of the Disabilities Act but have not acted on the issue in the interest of justice to alleviate the hardships of the stakeholders and sitting over the above guidelines for a pretty long time leading to untold miseries and hardships to the stakeholders.

In an unprecedented manner, the Court of Chief Commissioner Disabilities has issued notice to the sister department i.e. Department of Disability Affairs, under the same Ministry and sought explanation in the following unequivocal words:

"Take this show cause notice and explain as to why the Department of Disability Affairs, Ministry of Social Justice and Empowerment, Govt, of India, should not be directed to finalise, issue & circulate to all concerned comprehensive and uniform guidelines/norms for conduct of all examinations (both academic & recruitment related) as soon as may be keeping in mind, among other things, the suggestions of the complainants; and, pending finalisation, issuance and circulation of such comprehensive guidelines/norms, to circulate to all concerned the proposed guidelines/norms submitted by Score Foundation vide their letter dated 06.06.2012 for persons with blindness and persons with low vision and evolved by several organisations including Score Foundation on or before 20.10.2012 under intimation to this Court. The respondent department's reply should also explain reasons for the inordinate delay in finalisation, issuance and circulation of such comprehensive and uniform guidelines/norms for all persons with disabilities.

The Chief Commissioner for Persons with Disabilities has further directed the respondent Department to appear before the Court of the Chief Commissioner for Persons with Disabilities in person or through a representative (not below the level of Group 'A (Class-l officer) or a counsel well versed with the case and with all the related documents on 02/11/2012 at 3.00 p.m. to present the case unless uniform and comprehensive policy for conduct of all kinds of examinations for all persons with disabilities is duly finalised and notified before that date."

To read/download the Show Cause Notice click here.

I congratulate Mr. PK Pincha, Chief Commissioner for Persons with Disabilities, Govt of India for rising up to the expectations in discharge of his constitutional duties under the law. I am hopeful that the officials of the Disability Division will not take it as an adversorial litigation like many other cases in which they keep defending the Ministry's (in)actions in the Delhi High Court and other forums- issue of sign language interpreter being just one odd example that is being contested by the Ministry for over two years now at the Government's expense!

It is an apathy on the part of the Ministry that the stakeholders- the persons with disabilities continue to suffer and it has to defend cases due to its in-actions in various courts and now face this show cause from a constitutional authority like CCPD. Hope the Department of Disability Affairs will notify the guideline without any delay before the next date of hearing in the court of CCPD i.e. 02nd November 2012.

regards

Adv Subhash C Vashishth

ICAI imposes arbitrary Writers / Scribes Conditions for Students with Disabilities

Dear Colleagues,
The Institute of Chartered Accountants of India (ICAI) is organizing its annual exams starting 03^rd May 2012. It has provided “INSTRUCTIONS TO EXAMINEES – MAY, 2012” at link: http://220.227.161.86/26540exam15942.pdf. These instructions are utterly silent on the conditions for  Scribes allowed for Persons with Disabilities as per law, though they are exhaustive on other conditions to be met /observed for the examination.

This time the candidates with disabilities have been surreptitiously sent a three page document titled “Guidelines and Procedure to be followed regarding granting of Writer/ Extra Time to the Differently Abled Candidates”. Coincidentally, this document has not been provided  on the Institute website though is purported to have been adopted by Examination Committee during January 2012 and effective from May 2012 examinations. 

These impugned guidelines are illogical, arbitrary and work against the spirit of The Persons with Disabilities Act 1995 that aims to ensure equal opportunities, Protection of Rights & Full participation of persons with disabilities since they insist the following conditions among others:

1. The writer should not be above 20 years of age as on the date of commencement of a particular examination for which the writer’s assistance would be utilized by a candidate (for instance 02nd May 2012 for May 2012 CA Examinations)
2. The writer should be the same person for all the papers of an examination and no request for change of writer shall be permitted.
3. The writer should not be a relative of the candidate for whom he / she is acting as a writer.

The students with disabilities are in shock as they can not meet such arbitrary guidelines forced upon them. However, most students are not willing to come openly  against the institute for fear of a backlash which may spoil their career.


None of the earlier guideline (for 2007 or 2010 exams) which are available on the ICAI’s website at link: http://www.icai.org/new_post.html?post_id=639 do not contain any of such arbitrary and illogical conditions. The conditions put forth are unreasonable & discriminatory against persons with disabilities and defy the objective and mandate of the Disabilities Act.

I have been approached by several students who have failed to find writers below the age of 20 and are most likely to fall in to trap of missing their examinations despite their good preparation for the same.

Also since this is an exam season and most teen-aged students who may be eligible to act as writer as per the eligibility condition put forth by the new guideline,  are busy in their exams hence it is next to impossible to meet such a unreasonable guideline. Moreover, the relatives have been barred from acting as a writer. I am wondering as to who would then come forward to help (even at a cost!) to write for them. They are bound to fail due to lack of level playing field!

The condition that write should be same for all the papers spread over a length of period is also a detrimental to the interest of the examinee  since the teenager, who may agree to write the exam for the disabled student may have his own exam clashing. Then most students in graduation second or third year are more than 20 years.

Such attitude with the students with disabilities is an open discrimination and a discouragement for them to enroll for the course and not only is against the mandate of the Disabilities Act but also Article 14 of the Constitution of India that ensures equality to all. The names of the students have been withheld on their request since they fear revengeful action on the part of ICAI.

I have taken up the matter with the Chief Commissioner- Disabilities and hope that good sense will prevail over the ICAI and they would withdraw the unreasonable guideline.


If you remember, recently, several organisations working for the Persons with disabilities in India (especially Low Vision and Blind), to which I have been a party myself, have suggested an exhaustive document titled "Uniform Guidelines for Conducting Examinations (Practicals and/or Theory) for Blind and Low Vision Persons". These have been sent to Ministry of Social Justice for their acceptance. In all probability these would be accepted since the content is the revised edition of the draft guidelines discussed in the Meeting of the State Commissioners Disabilities in the year 2008, if I correctly remember hence has a principal approval from the authorities.


I suggest the ICAI to accept these guidelines in toto for implementation in all their examinations (including the one in May 2012) and take a lead in being the first progressive and disabled friendly institution of the Government of India.


regards,
Subhash Chandra Vashishth

Advocate- Disability Rights

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

Dear Colleagues,

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

The brief background of the case

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

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

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

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

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

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

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

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

The judgement 

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

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

The Road Ahead

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

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

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

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

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

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

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

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

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

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

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

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

regards

Subhash Chandra Vashishth

Advocate-Disability Rights