Disability Pension if Army Personal injured while on leave

Dear Friends,

This judgement comes in contrast to other judgement especially of the Delhi High Court which highlighted that the disability should be attributable to military service. From that angle, I feel the Punjab and Haryana High Court has given its judgements taking the holistic view of social justice provisions to those who are in the service of protecting the nation while disagreeing totally with Delhi High Court judgement.

I am hopeful that this trend will boost the morale of the combatant members of the  Armed Forces and Hon'ble Supreme Court will also take an appropriate view in the matter giving benefit to the soldiers when this matter reaches them in appeal. 

For the update on this matter in the Supreme Court, please refer to my post dated 18 July 2011. whereby the SC did not agree with granting disabilty pension if the injury is not attributable to military service.

regards

SC Vashishth

Here is the current coverage of the case:

HC allows disability pension for Army personnel on leave (Indian Express) 

The Punjab and Haryana High Court has ruled that Army personnel will be entitled to disability pension if injured in an accident while on annual/casual leave. As of now, Army personnel who suffer injury during annual leave are denied disability pension.

The order of the Full Bench of the High Court comprising Justices A K Goel, Alok Singh and K Kannan is significant as it disagrees with a judgment given by Full Bench of the Delhi HC on the same issue. With two Full Benches having divergent judgments on the issue, the question of law is all set to be decided by the Supreme Court.

In its 25-page judgment, the Full Bench made it clear that an Army personnel who suffers an injury or meets with an accident during leave will be entitled to disability pension only if the activity, during which he suffers the injury, is compatible with a military activity. For instance, if an Army personnel meets with an accident on leave, he is entitled to disability pension. But he will not be entitled to disability pension if he is injured while engaged in an activity which is not compatible with military service, or gets drunk and enters into a brawl.

The order came on two set of petitions filed by the Union of India against two Army personnel namely former sepoy Sumanjit Singh and former naib subedar Khusbash Singh.

Army men to be treated on duty even if on leave (The Tribune)

Tribune News Service, Chandigarh, April 5

Army personnel on casual or annual leave shall be considered on duty in case of any mishap, a three-Judge Bench of the Punjab and Haryana High Court today ruled.

The Bench made it clear that to decide their disability pension entitlement, it was to be seen whether the disability was attributable to or aggravated by military service.

With this, the Bench of Justice Adarsh Kumar Goel, Justice K Kannan and Justice Alok Singh has put to rest the controversy on disability pension entitlement of Army personnel suffering disability in accidents while on leave. So far, more often than not they were denied disability pension on the ground of not being on duty, while on leave.

The assertion comes with a rider. The Bench has clarified the only exception is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”.

The ruling came on a bunch of two petitions by the Union of India against two Army personnel. “In both cases, the disability had arisen through accidents during leave.”

Speaking for the Bench, Justice Kannan asserted: “If the Army personnel were on duty and they suffer disability due to natural causes, the issue whether it was attributable to or aggravated by military service will be examined by taking the case of Army personnel as they were and examining whether it was intervention of the Army service that caused the disability….

“In cases where the injury that resulted in the disability was due to an accident, which was not due to natural, pathological, physiological or psychological cause, the question that has to be answered is whether the activity or conduct that led to the accident was the result of any activity that is even remotely connected to military service.

“An activity of an independent business, or avocation or calling that would be inconsistent to military service, and an accident occurring during such activity, cannot be attributable to military service,” the Bench concluded.

Disability Pension

However, to decide their disability pension entitlement in case of any mishap, it is to be seen whether the disability is attributable to or aggravated by military service

Rider in the ruling is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”

Earlier Delhi High Court Order 

HC negates disability pension for Army man hurt doing personal work

The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

New Delhi, Aug 24 : The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

A Special Bench comprising Justices Vikramjit Sen, Sanjeev Khanna and S L Bhayana passed the verdict following a difference of opinion between the judges in a Division Bench.

While referring to a Supreme Court ruling the Special Bench observed, "Injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension."

"This is so regardless of whether the injury or death has occurred at the place of posting or during the working hours," the Bench added.

The Court dismissed a plea of ex Naik Dilbagh for disability pension in addition to family pension. Dilbagh, in a petition, claimed for the disability pension after he had received a head injury in a road accident on Delhi-Panipat road while going to a school for the admission of his child on December 25, 1993.

Dilbagh was on a casual leave from December 12 to 29, 1993 at the time of the accident.

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

Notices to colleges for not adhering to disability quota



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


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

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

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

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

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

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

Discharged on request with undertaking- will not seek pension- illegal, arbitrary & bad in law

 Dear friends,

Here is a fit case that has come to light which reinforces that the principals of natural justice can't be overruled with illegal undertakings got signed from the outgoing employees. Disregarding the earlier rejection of the petition by lower court and also refusal from Punjab and Haryana High court, the Chandigarh bench of the Armed Forces Tribunal (AFT) decided the disability pension case in favour of the retired subedar, a day before i.e. on 09th March 2010.

The Subedar was discharged on his own request and the employer got an undertaking signed from him that he would not claim any pension. The court held it absoutely illegal, arbitrary and bad in law. Though the matter took a long time but finally some justice seems to be coming through.

This matter also indicates that specific courts can do much better job in rendering justice than a regular or general court. The same holds true for matters relating to disability- where our experience confirms that the Court of Chief Commissioner-Disabilities constituted under the Persons with Disabilities Act 1995 has done far better job while CAT and High Court went on against the petitioners in similar matters.

regards

SC Vashishth, Advocate-Disability Rights

To read from source click here:  VRS no ground for rejecting pension, says defence tribunal

The Chandigarh bench of the Armed Forces Tribunal (AFT) decided a disability pension case in favour of a retired subedar on Tuesday. The case had earlier been rejected by a lower court and the Punjab and Haryana High Court on the grounds that the army personnel had given an undertaking at the time of voluntary retirement stating he would not claim disability pension.

Citing the decision of the Division Bench of the Delhi High Court in the case of Mahavir Singh Narwal versus Union of India of 2005 in support of this case, the Chandigarh bench of AFT, comprising Justice Ghanshyam Prasad and Lieutenant General (retired) Justice N S Brar, decided that the lower court was neither legal nor justified and had wrongly rejected the suit of the petitioner.

The bench decided that the petitioner, former subedar Rohtash Singh, resident of Umrawal village, district Bhiwani, was entitled to get disability pension from the date of his discharge plus the arrears of three years prior to filing of the suit with eight per cent annual interest. It was stated that the rejection of Singh’s claim for grant of disability pension on the grounds that he was discharged from service at his own request and gave an undertaking that he would not claim any pension was absolutely illegal, arbitrary and bad in law.

Rohtash Singh joined the Regiment of Artillery on May 25, 1967. He had a head injury after he met with a serious accident on September 26, 1989.

The medical board proceedings conducted by the Military Hospital in Ambala Cantonment awarded him 30 per cent disability and he was discharged on September 1, 1992.

He approached the appropriate authority for the grant of disability pension, which was rejected by the Artillery Record, Nasik, on January 12, 1994, on the plea that he was discharged at his own request and hence not entitled for disability pension. He also filed an appeal against the rejection of his appeal which was also rejected by the competent authority on July 22, 1994.

The Punjab and Haryana High Court relegated the matter to the civil court on August 12, 2005. The civil court also rejected Singh’s appeal on the grounds that he was discharged from service at his own request on extreme compassionate grounds as per the Army Headquarters and he has approached the court after the lapse of nine years of rejection of his appeal.

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. brings in Notification to give equal benefit under PLI Scheme, but is that equal indeed?

Refer to my earlier post on Government seeking six week more time to bring in an appropriate insurance scheme which doesn't discriminate employees with disabilities.

After a prolonged period finally they came up with a notification on the last date of hearing which provides the maximum insurance limit up to 10 lacs as available to other employees. You can view the notification of Department of Post by clicking here: Notification dated 04th January 2010

In other words with this notification the maximum limit of insurance for physically handicapped persons has been made equal with maximum limit prescribed under Rule 3 of POIF Rules and revised from time to time to ensure non-discrimination and equality with other employees.

Consequently, POIF Rules have been amended to include Physically Disabled employees also. However, what remains to be seen is that the extra premium being charged from the employees with disabilities has yet not been addressed which would actually go on to prove that the insurance scheme is still discriminatory against employees with disabilities.

I am hopeful that they would address this lacunae also and not ask employees with disabilities to cough up extra premium for an insurance amount that is equal to other employees.

regards

Subhash Chandra Vashishth

Advocate-Disability Rights

Railways continues to discriminate against Persons with Disabilities- Case of Jayanta Khamari

Dear Friends,

Laws fail to work when social attitudes and mindsets are rotten, diseased and highly biased towards persons with disabilities. Defect, abnormality, less fortunate, to be dealt with pity and not equal are what prevalent in our society still!

To top the list of such organisation is Indian Railways. They refuse to abide by law. Railways is a sea with so many divisions, branches, regions and due to lack of a uniform, transparent and effective system in place, rights of people get often abused at the whims and fancies of certain officials who continue to harbor such attitudes against the citizens with disabilities. This is precisely the reason that the Railways have not been able to fill up their backlog of jobs for disabled persons in a transparent manner despite Delhi High Court orders on a PIL filed by AICB, Delhi.

The present case is of Shri Jayanta Kumar Khamari, who wanted to join Railway Engineering Service and has been forcibly given Military Engineering Service. Result declared by Railways indicates his name on page 3 rank 38. Result 2007. He is still awaiting his choice posting even after two years of clearing the Indian Engineering Service. Reason- he doesn't have three fingers in the right hand!

Any physiotherapist/occupational therapist or orthopedic surgeon would opine that if one has thumb opposition available in the hand, majority of jobs requiring fine finger dexterity can be easily performed. Also in the present case, Jayanta functionally uses his left hand as efficiently as his right hand but Railway believes he can not work efficiently and his disability will affect his work. So they came up with a plea that they don't have any post identified for such candidate.

And mind you, the gentleman is working as Junior Engineer with CPWD for past several years with no adverse remarks on productivity due to disability!

High Court of Orissa has categorically expressed in its order, "We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"

Hope good sense of law and human rights will prevail and Railways will make itself more receptive to diversity (read) employees with Disabilities to be contributing members of their workforce.

warm regards

Subhash Chandra Vashishth

Advocate & Consultant -Disability Rights

0981125521, subhashvashishth@gmail.com

Click here to read from Source: Even Rahul Gandhi Failed Me

Jayanta Kumar Khamari, an Indian Engineering Service graduate, is fighting for a job in the Indian Railway Service of Engineering. He says he was assured by many leaders, including Gandhi, but the Railways denied him his choice as he doesn't have three fingers on his right hand

Rahul Gandhi, the scion of the most powerful family in the country, can give cold feet to his veteran political opponents. Yet, there are things which are beyond his reach too. Ensuring a job with the Indian Railways, for instance.

That too, despite a High Court order in support of the applicant.

Jayanta Kumar Khamari, from Bhubaneswar, met the Congress general secretary in hope that he will be able to get justice with the young leader's intervention. However, even after receiving assurances from Gandhi, the 35-year-old Indian Engineering Service graduate continues to work in the Military Engineering Service, despite achieving 35th rank in the merit list that qualifies him for the Indian Railway Service of Engineering (IRSE).

Handicap trouble

Even the Railways has no qualms about Khamari's qualification. The problem lies in his right hand that is devoid of any fingers except for the thumb. Khamari suffered from a consumption disease in his childhood, thereby causing the amputation of four fingers in his right hand.

However, Khamari turned ambidextrous and is now able to use his left hand as efficiently as his right. But, the Railways believes the disability could become a hurdle in his way of achieving success as an engineer and therefore, he was refused his preferred choice of service.

"I appeared before the medical board, which recommended me for field work after examining my hand. The Railway Board was the nodal authority for appointment and it did not take up my case, as per my choice for the Indian Railway Service of Engineers," Khamari said.

For the last two years, Khamari has been waging a pitched battle against the alleged discrimination against him.

Even ten years of Khamari's experience as a junior engineer with the Central Public Works Department (CPWD) failed to convince the bosses at the Railway Board to allow him to achieve what he truly deserved.

In the hope that the 'most powerful leader in the ruling party' (Rahul Gandhi) will ensure his choice of job, Khamari met him in August last year. But contrary to his belief in the omnipotence of the scion of the Nehru-Gandhi family, nothing happened.

Not only Gandhi, many others, including the Minister of State for Railways Naranbhai Rathwa, did not pursue Khamari's case.

"I met the chairman and secretary of the Railway Board. I also met Sanjay Mitra, joint secretary and Satyanarayan Sahu, director at the Prime Minister's Office but even they could not help me," Khamari told MiD DAY.

In court

The young engineer, however, did not lose hope and moved court against the alleged discrimination against his disability by the Railways. He lost in the lower courts, initially, yet continued his battle.

Now, Khamari has the backing of a favourable order by the Orissa High Court and an equally damning assessment of the discrimination by the Railways from the Chief Commissioner for Persons with Disabilities (CCPD).

Long fight

Apart from a frustrating wait for what he deserved, Khamari had to face several other hardships to shuttle between Bhubaneswar and Delhi.

"When my case was pending with the CCPD, I stayed in Delhi for almost two months. During that period, almost for a month, I stayed at Jagannath temple, near IIT. And then with my friends in Jia Sarai, Katwaria Sarai and Ber Sarai," said Khamari. But, now with the High Court by his side, it seems that Khamari has finally got his 'hand of God'.

What the law says

Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that the appropriate government in every establishment shall appoint such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for the persons suffering from:

i. Blindness or low vision

ii. Hearing impairment

iii. Locomotor disability or cerebral palsy, in the posts identified for each disability.

The proviso to Section 33 of the Act states the appropriate government body is at liberty to exempt any establishment from the provisions of this section by notification. From the order of the Chief Commissioner it appears there is no notification exempting the Railway from the purview of Section 33 of the Act.

The High Court said...

"We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Accordingly, we direct the Railway Board to issue necessary orders in favour of the petitioner in terms of the order of the Chief Commissioner within a period of two months from the date of receipt of this order." Justices BP Ray and BP Das, September 17, 2009

Awaited Judgement on Driving Licences to the Deaf

Dear All

I am eagerly waiting for the judgement but each time the Learned ASG has been seeking time on behalf of Govt. of India to frame rules!

Waiting for the day when he will come in the court with amended rules!

regards

Subhash

India's deaf may get licence to drive

The Government of India is considering issuing driving licences to hearing impaired people by amending the Motor Vehicles Act

Published on 11/9/2009 2:08:16 PM
By Kanu Sarda

New Delhi: India is one of the few countries in the world where the hearing impaired are not allowed to drive. But this may change soon, with the government informing the Delhi High Court it is considering changing its rules.

"We are considering issuing driving licences to hearing impaired people and thinking of amending our rules and regulations," Additional Solicitor General AS Chandiok informed a division bench of the High Court comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar.

The court has granted the government three months' time to take a decision and posted the matter for December 16.

At present, the Motor Vehicles Act prohibits the deaf from obtaining a driver's licence on the ground that they could be a source of danger to the public. There is around 50 million hearing impaired in India.

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

According to the NAD, the deaf are allowed to drive all over the world except in 26 countries including India.

"The only reason why India is not willing to issue licences is that Indian vehicles lack the special gadgets that other countries' vehicles have. But we are considering the same and hoping that we will be able to amend some rules," Chandiok informed the bench.

According to medical experts, those who can hear up to 60 decibels with the use of a hearing aid can be permitted to hold a driving licence for private vehicles, while those with a hearing level of up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.

According to the petitioner, even the Delhi Police website indicates that deaf people can drive and states, "There is no reason why a deaf person cannot drive a private motorcar. However, the possibility of additional rear vision mirrors may need to be considered."

Delhi High Court relief on disabled quota suspended by Supreme Court

 Source: IANS New Delhi, Nov 6, 2009 (IANS) 

The Supreme Court Friday suspended a Delhi High Court order to the union government to provide three percent reservation in state jobs to physically challenged persons as per a special law that accords one percent quota for visually impaired candidates.

A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam and Justice Deepak Verma suspended the high court order saying: “We are staying the high court directions. They are prima facie incorrect.” The bench, however, clarified that it was not suspending the law for three percent reservation in state jobs to physically challenged persons, the Disabilities Act. 

The apex court gave the order on an appeal by the union government challenging a Delhi High Court order, which had directed the centre to fully comply with the Disabilities Act and reserve three per cent seats for disabled persons according to its 1996 notification. 

 While granting the relief to the union government, the bench refused to heed the plea of National Federation of the Blind which wanted that the High Court order be allowed to operate. Advocate Pratiti Rungta, himself visually impaired, who appeared for the federation, opposed the government’s appeal but the bench declined it saying “it is not possible to continue with the high court order.” 

Rungta’s failed to convince the bench that no recruitment has been made under the Act. Additional Solicitor General Indira Jaising contended that the directions of the high court were not workable. The apex court had earlier directed the government to file a detailed status report regarding the extent to which the posts had been identified and filled up and also what steps had been taken to fill up the vacancies that had arisen since the Act has gone into force in 1996. The government is yet to file the status report.

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

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

Dear Friends,

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

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

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

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


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

regards

S.C. Vashishth, Advocate

Delhi HC directs Centre to amend its insurance rules for disabled

8/31/2009

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

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

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

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

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

Dear Friends,

Here is some news from the long awaited case which has not been concluded by the Hon'ble High Court as yet. The Govt. of Delhi is still contemplating assigning one special teacher for three schools which doesn't seem to be anywhere close to the promise of Inclusive Education that Govt. of India has tried to bring out in its recent Right to Education Bill ready for the assent of the President of India.

What you have to say?
regards
SC Vashishth



To read from source click here

The Municipal Corporation of Delhi (MCD)'s much-hyped decision to screen Bollywood movies such as Taare Zameen Par to educate teachers on ways to handle disabled students has angered the Delhi High Court.
The court suggested the Delhi government should instead form a committee to identify these children and treat them in a special manner to make their future bright.
On Wednesday, Chief Justice A.P. Shah and Justice Manmohan said Taare Zameen Par did not cover all aspects of disability, but was confined only to dyslexia.

The court observed that just by watching a film, a teacher won't be able to understand how to handle the special students.

"Proper mapping must be carried out by the government and the MCD to identify the number of disabled students. Secondly, the appointment of special, qualified teachers to take care of these students is an important aspect. The state must look into this matter seriously," Shah said.

The court suggested that a committee comprising a member each from the NCERT, the National Commission for Protection of Child Rights and the MCD be formed to oversee the process.

The bench also said designated schools should have transportation facilities for these students.
The Delhi government said there were 1,746 MCD and 922 government schools, and the process of identifying disabled students was tough and could only be completed by next June.

The government counsel said it planned to appoint one teacher for every three schools. "If we go by the 1: 3 ratio, we would require 300 teachers in government schools and 600 teachers in the MCD schools with the required qualifications to teach these students," the chief justice said.

MCD schools have been facing major problems in teaching disabled students due to paucity of specially trained teachers. As it is, it is hard to find fully equipped schools to teach them. Though the MCD claims it has two or three students with disabilities in almost every school, the teachers have many a times expressed its inability to teach such students.

"Disabled students face many hurdles. First, the schools are reluctant to admit them. Even if they do, the teachers don't know how to handle them. The result: the children do not learn anything," Ashok Agarwal, the counsel of the petitioner, an NGO, said.

Agarwal said the government carried out mapping of such students in 2007. But with the help of 19,000 personnel, it was able to track only 1,511 students, he noted, questioning the efficacy of the procedure the government adopted for the exercise.

"Even after two years, the government is saying it is still carrying out the mapping process. It's a delaying tactic. Those students, who were identified, have not even been admitted to schools.
The government will take a year to identify these students. It is wasting an academic year of these students," Agarwal said.

"Disabled students face many hurdles. First, the schools are reluctant to admit them. Even if they do, the teachers don't know how to handle them. The result: the children do not learn anything," Ashok Agarwal, the counsel of the petitioner, an NGO, said.

Agarwal said the government carried out mapping of such students in 2007. But with the help of 19,000 personnel, it was able to track only 1,511 students, he noted, questioning the efficacy of the procedure the government adopted for the exercise.

"Even after two years, the government is saying it is still carrying out the mapping process. It's a delaying tactic. Those students, who were identified, have not even been admitted to schools.
The government will take a year to identify these students. It is wasting an academic year of these students," Agarwal said.

The court's suggestions:

• The Delhi government must form a committee to identify disabled students and treat them in a special manner.
• The MCD and the government must carry out proper mapping to identify the total number of such students in the government schools.
• The state must appoint qualified teachers to take care of them.
• A committee comprising a member each from the NCERT, the National Commission for Protection of Child Rights and the MCD should supervise the entire process.

The Raped Mentally challenged Girl can continue her pregnancy- says SC

Dear Friends,

This has reference to my earlier post on the subject. Finally, what I guessed turned out to be right. The Court allowed the girl to continue with her pregnancy. A strong argument that "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state" was successfully used.

Another argument "why should poor women, who are found lacking in bringing up their children should be allowed to have babies? if this girl with mental retardation is to be disallowed the motherhood only on this ground that she can not bring her up" was also used.

The life won and won the motherhood! UNCRPD, right to life, Right to motherhood, and social support were all discussed. The arguments were touching and Supreme Court gave in! Congratulations to life and pro-life and pro-right activists and so to the concerned pro-abortion activists as this much publicised matter would eventually provide some support structures to the girl and her coming baby!

regards

SC Vashishth

To read the news from source click here

Raped mentally challenged girl can continue pregnancy: SC

Dhananjay Mahapatra, TNN 21 July 2009, 03:54pm IST

The Supreme Court on Tuesday allowed a mentally challenged orphan girl who was raped at a Nari Niketan in Chandigarh to continue her pregnancy resulting from the sexual assault. The apex court was initially reluctant to interfere with a Punjab and Haryana High Court order directing medical termination of the pregnancy. But it changed its mind after counsel Tanu Bedi crafted her arguments based both on law and emotional grounds.

When the CJI expressed concern as to who would take care of the baby and what would be the health of the newborn, more so since the girl had no one to look after her, Bedi in her 40-minute long monologue repeatedly put these questions to the court — "Why would a girl, even if mentally retarded, be deprived of motherhood which is her right? If her mental age was a consideration for the judiciary to think that she could not take care of her baby, why should poor women, who are found lacking in bringing up their children, be allowed to become mothers?"

She said medical termination of pregnancy could not be done under law without the consent of the mother. "And here is a case where the girl wants to keep her pregnancy. She has no blood relation in the world. Should we not help her to get her first blood relation in the baby she is carrying now," Bedi asked. The arguments not only touched the Bench but every one present in the court as Bedi went on, "She is already 20 weeks pregnant and termination could cause damage to her health and further deteriorate her mental state."

If the Bench was worried about the future of the baby and whether the girl, with a mental age akin to that of a 9-year-old, could take the strain of motherhood, it was supported by senior advocate Colin Gonsalves, who appearing for a social activist cited medical reports that cast doubt on her ability to handle motherhood.

Further Readings: http://timesofindia.indiatimes.com/NEWS/Sunday-TOI/View-From-Venus/Whose-baby-is-it-anyway/articleshow/4820858.cms

Motherhood is for all? Debate rages in SC- Hindustan Times

Dear friends,

A rather tricky legal entangle from High Court now in the Supreme Court. A tussle between pro-life and pro-choice activists and at stake is the life of a 19 year mentally retarded unwed and orphaned girl stranded in a state run home! Any delay can be a peril to her life. And I am sure the delay would not allow any abortion eventually in this legal entangle and pro-life activists are most likely to win - not because of their arguments for life of child and the rights of the girl to have her baby but because of the inherent threat to the life of the challenged girl that an abortion would pose after 20 weeks!!

Links of the News Items
Hindustan Times: Motherhood is for all? Debate rages in SC- Hindustan Times
Indian Express: http://www.expressindia.com/latest-news/terminate-pregnancy-of-mentally-challenged-rape-victim-orders-hc/490988/

Here is the debate that went on on the Facebook for your information:

Subhash Chandra Vashishth
Would this be a travesty of justice and permanent addition to the miseries of the orphaned girl ? The supreme court has to take a decision on urgency taking a holistic approach and giving due emphasis to social, physical, mental capacity and financial conditions! Can't afford to prolong such matters before various courts!

Jo McGowan Chopra
Not that simple, I'm afraid. Leave aside the issue of the baby's right to life (which doesn't seem to even come into the argument), the young woman in question has expressed a strong desire to keep the baby. Are her wishes to be ignored? She is said to have the intellectual age of a nine year old. Nine year olds are very capable of making good decisions, especially if given support by wise, impartial older friends. Does the court feel that all people of limited intellectual ability should be prevented from having children? Are we prepared to make such decisions for other people, particularly when they have expressed their convictions repeatedly and with force?

Jamie Osborne
If the woman is a ward of the State, then what the State says goes. As far as I know, the UNCRPD doesn't ensure that people with developmental disabilities have more say over their possible futures than their guardians...

Subhash Chandra Vashishth
Thanks Jo for your view and I agree with your argument but where is the support by wise and impartial older friends. She is in a state run home for mentally challenged where two security guards were involved in raping her. God knows how many others have been treated there similar way. I am only worried about the future of the child who would have no support but to remain in the same home and the mother may not be able to look after the interest of the child. The fear is what if the child is a girl .... Thanks Jamie for your opinion, the girl is under the guardianship of the state, however, since it was a criminal case, the matter is subjudice hence any action needs to be okayed by Court.


Rama Chari
If the girl has desired to keep the baby, she should be allowed to do so.. She has equal rights like anybody else.

Jo McGowan Chopra
The wise and impartial friends have to be us, I think. Surely there is some NGO in Chandigarh which can help this young woman? And if we are truly concerned about the baby, is killing it the way to express that concern?

Subhash Chandra Vashishth
Between the two groups of Pro-life & Pro-choice activists the young girl is waiting for answers from the Supreme court. May be it is the right time that some NGO then takes her in to their guardianship and provide crucial support. My dear senior colleage Senior Advocate Collin Gonsalves, who incidently also heads HRLN is pro-abortion for he seem to... Read more believe that all those who are showing support to the girl to have a baby will not be found when she would need some support!

Jo McGowan Chopra
Colin may be right. But there are definitely pro-life people who WILL step forward if the baby needs a home. I think my husband and I are too old to do it ourselves, but I think I could find someone willing.

Kavita Agrawal
Another question that comes to my mind is that whether any one is coming forward to take care of the child should the girl be allowed to have the child. It is Ok to talk about society supporting the girl. I don't see any of the so called society people coming forward to take care of the girl and the child. if we had such responsible society probably the rape wouldn't have taken place at all......people would have been more sensitive....