Denying the disabled, an article by Jayna Kothari, Advocate

Indian courts have shown that they are ready for progressive interpretations of the law on the rights of persons with disabilities. Therefore, any new law that aims to replace the Persons with Disabilities Act, 1995, needs to be a significant improvement on it. 

By JAYNA KOTHARI

SINCE 1996, when the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), came into force, by far the majority of cases taken to court have been about equal opportunity in public employment, that is, reservation of jobs for persons with disabilities and related matters such as promotions, identification of posts and eligibility. This struggle is in many ways not that different from the caste and gender battles for affirmative action in government employment. For any marginalised group, including persons with disabilities, equality in employment is a benchmark for full participation in society.

In Union of India vs National Federation for the Blind and Others, the Supreme Court passed on October 8 a landmark judgment in this battle on reservation of jobs for persons with disabilities. The PWD Act, though a restricted statute mainly concerned with providing reservation in jobs and seats in public employment and education, has slowly been nudged by courts, lawyers and disability rights activists to become far more progressive than was ever imagined. Section 33 of the Act states that “every appropriate government shall appoint in every establishment such percentage of vacancies not less than 3 per cent for persons or class of persons with disability...”. Section 32 requires the appropriate government to identify jobs for persons with disability and review the list of identified jobs every three years.

In spite of Section 32, the reality on the ground since 1996 has been that hardly any jobs were identified by the governments as suitable for persons with disabilities. A 2009 World Bank report, titled “People with Disabilities in India: From Commitment to Outcomes”, found that only 10.2 per cent of the posts in all Ministries/departments and public establishments had been identified as suitable for persons with disabilities. The situation in 2013 is not very different. In a 2010 judgment, in Govt. of India through Secretary and Anr vs Ravi Prakash Gupta & Anr, the Supreme Court held that non-identification of posts could not be a reason for the government to evade its obligation to reserve 3 per cent of posts for persons with disabilities.

In the National Federation for the Blind case, the core question was whether the 3 per cent reservation should be calculated on the basis of the cadre strength or the number of vacancies in the identified posts. Cadre strength refers to the total number of posts in the cadre. At present, if at all reservation for and appointment of persons with disabilities are made, it is only on the basis of the vacancies that arise in “identified” jobs, which are far fewer than the total number of posts in the cadre. The Supreme Court held that from a bare reading of Section 33 it was clear that the intention of the legislature was that the 3 per cent reservation was computed on the basis of total vacancies in the cadre strength. This interpretation is significant as it will lead to an unprecedented increase in the number of appointments in State and Central government jobs for persons with disabilities.

One of the most interesting observations of the court in this judgment pertains to reservation in the private sector. Section 41 of the Act states that incentives should be given to public and private establishments so that they provide 5 per cent reservation for persons with disabilities. The Supreme Court held that “on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3 per cent in the establishments of appropriate government, the legislature intended to ensure 5 per cent of representation in the entire workforce both in public as well as private sector”.

This expansive observation of the court has gone unnoticed amid the excitement over its statement on reservation based on the cadre strength. This opens up new avenues for implementing reservation for persons with disabilities in the private sector as well. This opportunity was passed up by Justice Ravindran in the judgment in Dalco Engineering Pvt. Ltd vs Satish Prabhakar Padhye & Ors, which stated that the definition of “establishments” under the PWD Act did not include private companies. Now, however, the full Bench of Justice P. Sathasivam, J. Desai and J. Gogoi has clearly moved ahead by observing that the intention of the legislature was to ensure reservation of posts for persons with disabilities not only in the public sector but in the private sector as well.

Draft Bill, 2012 

This judgment comes at the right time as the Draft Rights of Persons with Disabilities Bill, 2012, is pending consideration. The Supreme Court even relied on the Bill for its reasoning. However, with regard to equality in employment rights for persons with disabilities, the Bill does little to improve upon the provisions of the PWD Act and does not include the exciting new possibilities that the Supreme Court judgment promises. It does not mandate reservation of jobs in the private sector at all for persons with disabilities although this was clearly included in the draft of 2011. Unless the private sector is mandated to reserve jobs for persons with disabilities, it is unlikely that their conditions of employment in the country will change significantly. If one were to review any significant disability rights legislation in other jurisdictions, one would notice that all of them contain employment obligations for the private sector as well.

This has become even more urgent now as India has ratified the United Nations Convention on the Rights of Persons with Disabilities. Perhaps, the Supreme Court decision will prompt a revision of the relevant provisions in the Draft Bill. The Draft Bill also needs to address the problematic requirement of “identification of jobs”, which has been reproduced from the PWD Act. Identification of jobs is a concept that is considered outdated by disability rights activists the world over because it has a history of segregating persons with disabilities into the most menial jobs available, making it difficult for them to apply for other jobs. In the last century, the strategy of identifying particular professions for persons with disabilities was practised in the United Kingdom. But, as Anna Lawson, professor at Leeds University and author of Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart Publishing, 2008), points out, the occupations that were selected were of low status such as car park attendants and lift operators. In associating disabled people with such jobs, there is the danger of creating or reinforcing negative stereotypes about them and their abilities.

For example, in India, the stereotypical jobs reserved for the blind and persons with low vision are those of music teacher and telephone operator. These difficulties were recognised in the U.K. as early as 1956 by the Piercy Committee in its report of the Committee on the Rehabilitation, Training and Resettlement of Disabled Persons, and although initially the disabled community supported the strategy of identifying certain jobs for its members, such schemes were finally abolished.

In India, the battle for reservation of jobs has often been stalled by the government’s not identifying posts as suitable for persons with disabilities. Such identification is often restrictive and arbitrary; for example, in Group A, the job of an agricultural scientist specialised in econometric analysis is identified as being suitable for an individual who is blind or has an orthopaedic disability but not for someone with a hearing disability. There is also a great variance between the Central government and different State governments on what posts are suitable for persons with disabilities, and this has led to intense litigation.

As the World Bank report says, the list of identified jobs is based on the assumption that the characteristics of impairment are the exclusive determinants of an individual’s ability to hold a position at a particular skill level and such identification ignores the potential influences of individual characteristics (motivation, age at disability onset), the person’s access to employment services, and the characteristics of the workplace and labour market. Even though there is a statutory obligation to identify posts, what posts are identified is left to the discretion of the government, which decides on the basis of the nature of the posts and its requirement. The government often conveniently denies people with disabilities jobs by not identifying enough posts in each department for them. Thus, the whole concept of identification of posts is problematic. The Supreme Court recognised this in its recent judgment, saying: “[E]xperience has shown that identification has never been uniform between the Centre and States and even between the departments of any government. For example, while a post of middle schoolteacher has been notified as identified as suitable for the blind and low vision by the Central government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc.”

Reasonable accommodation 

Unfortunately, the requirement of identification of jobs is retained in the Draft Bill, and Sections 32 and 33 of the PWD Act are reproduced, with the only difference being an increase in the reservation from 3 per cent to 5 per cent. If this requirement is removed from the Bill, this, coupled with the obligation the Bill places on the employer to provide “reasonable accommodation”, every job could potentially be suitable for persons with disabilities. The concept of reasonable accommodation, or adjustment, lies at the heart of civil rights advancement in the context of disability. Its significance is that it is a way of accommodating difference. A 2004 baseline study by the European Union Network of Independent Experts of Disability Discrimination, titled “Disability Discrimination Law in the E.U. Member States”, noted: “The notion of ‘reasonable accommodation’ is individualised and involves the person with a disability in an interactive dialogue with the employer to discover the right kind of accommodation needed in the overall circumstances of the case.”

Essentially, the concept stems from a realisation that the achievement of equal treatment can only become a reality when some reasonable allowance is made for disability in order to enable the abilities of the individual concerned to be put to work. In employment, it is the duty of the employer to make reasonable accommodations to any physical features of the premises or to the duties of the job which would place disabled persons at a substantial disadvantage in comparison with those who are not disabled. As stated in the E.U. report, reasonable accommodation as provided in other legislations could include adjustments to premises; reallocation of duties; redeployment to an existing vacancy; alteration of working hours; reassignment to a different place of work; allowing absence for rehabilitation; assessment or treatment; training; acquisition of equipment; modification of equipment, instructions, reference manuals and testing or assessment procedures; and provision of a reader, interpreter or supervision. Thus, the need to identify jobs would not arise at all as every job could be done by a person with a disability. With India ratifying the U.N. Disabilities Convention, the concept of reasonable accommodation has not only been brought under the Draft Bill, but also recognised by the Bombay High Court in Ranjit Kumar Rajak vs State Bank of India.

Finally, only token improvements to the PWD Act have been made in the Bill. Instead of the seven disabilities stated in the PWD Act, the Bill provides for 5 per cent reservation of jobs for persons with “benchmark disabilities”, which means those found with 40 per cent or more of the specified 18 disabilities. However, the provisions for reservation of jobs only mentions that out of the 5 per cent of jobs, with 1 per cent each being reserved for persons with blindness and low vision, hearing impairment, locomotor disability, autism and intellectual disability, and mental illness. These provisions do not adhere to the progressive social model of disability, which does not view disability as a medical impairment (with 40 per cent or more of a certain characteristics) but as a form of discrimination due to social and environmental barriers. If these medical models of understanding disability are reproduced in the new law, one can hardly say that the Bill is in conformity with the U.N. convention, which was supposed to be the basis for the whole drafting exercise.

The Supreme Court decision signals that Indian courts are ready for progressive interpretations of the law on the rights of persons with disabilities. These interpretations have breathed life into the PWD Act and transformed it from a limiting statute into a legislation that has been successful in changing the lives of persons with disabilities, at least in the field of public employment. This judgment bears in it the seeds for further reform. This requires a serious reconsideration of the Draft Bill, which needs to take all these concerns into account. The disability rights movement has worked hard for the last 17 years to make the PWD Act what it is today, and any new legislation that replaces it needs to make a significant improvement to it.

Jayna Kothari is an advocate practising in the Karnataka High Court and a director of the Centre for Law and Policy Research. She is the author of The Future of Disability Law in India and can be contacted at jayna.kothari@clpr.org.in

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Deaf medical student denied Interpretor during clinical training

Dear Colleagues,

The lawsuit deals with the accommodations that needs to be provided to persons with disabilities  to ensure an equalizing environment. An interesting read from the New York Times.

Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

By JOHN ELIGON

Published: August 19, 2013

Speaking with the parents of a sick infant, Michael Argenyi, a medical student, could not understand why the child was hospitalized. During another clinical training session, he missed most of what a patient with a broken jaw was trying to convey about his condition.

His incomprehension, Mr. Argenyi explained, was not because of a deficiency in academic understanding. Rather, he simply could not hear.

Mr. Argenyi, 26, is legally deaf. Despite his repeated requests to use an interpreter during clinical training, administrators at the Creighton University School of Medicine in Omaha, Neb., have refused to allow it. They have contended that Mr. Argenyi, who is able to speak, communicated well enough without one and that patients could be more hesitant to share information when someone else was present. They added that doctors needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis.

Mr. Argenyi took a leave of absence at the end of his second year, in 2011, after suing Creighton for the right to finish his medical training with an interpreter. The case, scheduled to go to trial on Tuesday in Federal District Court in Omaha, is attracting the attention of the federal government and advocates who are concerned that it could deal a setback to continuing efforts to achieve equality for people with disabilities.

“I couldn't understand so much of the communication in the clinic,” Mr. Argenyi wrote in an e-mail. “It was humiliating to present only half of a history because I had missed so much of what was communicated. I was embarrassed every time I would miss medicine names that I knew from classes but couldn't understand when the patient or a colleague spoke them.”

Despite making tremendous strides over the past four decades with the passage of the Rehabilitation Act and the Americans with Disabilities Act, those with disabilities remain underrepresented in higher education and in the work force. In the medical field, people who are deaf or hard of hearing remain less likely to hold high-skilled positions than those without impairments.

Universities tend to provide requested accommodations after admitting a student who they know has a disability, proponents for the deaf say. And most arrangements for the deaf are settled long before any issues reach a courtroom, said Curtis Decker, the executive director of the National Disability Rights Network, a federally financed association of legal services programs.

But, he said of Mr. Argenyi’s lawsuit, “It’s a very important case because, I think, if it’s successful it will send a very powerful message to the university community that the law does cover them and the law is clear about the accommodations that they need to provide.”

Creighton officials maintain that they have provided Mr. Argenyi with the necessary tools for him to succeed in medical school.

“Michael Argenyi is a very bright, capable young man who Creighton believes will make a good doctor,” said Scott Parrish Moore, the lead counsel for Creighton.

After being accepted to Creighton four years ago, Mr. Argenyi asked the university to provide a real-time captioning system for lectures and a cued speech interpreter. (Mr. Argenyi, who does not know sign language, can read lips. An interpreter helps by mouthing words while using hand signals to clarify sounds.) These were the same accommodations that Mr. Argenyi, who had a diagnosis of profound deafness when he was 8 months old, received for much of his schooling, from grade school through undergraduate studies at Seattle University.

Creighton provided Mr. Argenyi with just one of the aides that his audiologist had recommended — an FM system, which amplifies the sounds he hears in cochlear implants. The university also provided note takers for lectures, priority seating and audio podcasts.

Soon after classes began, Mr. Argenyi told school officials that the accommodations were inadequate and that he was missing information. He sued in federal court in Omaha in September 2009, arguing that the university was legally required to pay for and provide necessary aides.

Mr. Argenyi said he hired his own interpreter and transcription service, which cost him more than $100,000 during his two years in medical school. The breaking point, he said, came during his clinical work in his second year when Creighton refused to allow him to use an interpreter, even if he paid for it himself. The university did allow Mr. Argenyi to use interpreters during a couple of clinics while the Justice Department was trying to broker a settlement, but stopped when a deal could not be reached.

Mr. Argenyi is pursuing degrees in public health and social work at Boston University, which is providing his requested transcription services, while the lawsuit is pending.

Source: New York Times with the headline: Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates.

Delhi High Court directs Private Schools to appoint 2 special educators

Dear colleagues,

Division Bench of the Delhi High Court has directed private schools to appoint two special educators to respect the mandate of the RTE Act. The court had already directed the Govt. of Delhi to appoint 2 Special educators in all government schools. This is a welcome step and calls for drastic changes in the way we look at education of children with disabilities.

Here is the news report from the Time of India.


'Special educators must in private schools’
Abhinav Garg, TOI



NEW DELHI: Disabled students enrolled in private schools received a unique gift from the Delhi high court on Teachers' Day - special educators.

A division bench comprising acting Chief Justice A K Sikri and Justice Rajiv Sahai Endlaw directed all private unaided schools in the capital to hire two qualified special educators as per the mandate of the Right to Education Act (RTE).

The bench made it clear that special educators are required not just in government-run or aided schools but should also in private schools as they too enroll disabled students with special needs. HC was hearing a plea by civil rights organization Social Jurist which sought to extend appointment of special educators to private schools.

The court has already directed the government schools to appoint special educators for disabled children in 2009. It re-iterated the ruling earlier this year while hearing a contempt plea against the government for its failure to fill up vacancies for special educators.

The PIL, filed through advocate Ashok Agarwal, highlighted that 2039 unaided private schools and 258 aided schools lack basic physical and academic infrastructure, including special educators for those suffering from blindness, hearing impairment or mental retardation. "The failure on the part of these unaided and aided schools to have these facilities in place violates the fundamental and human right to education of the children with disabilities as guaranteed to them by the Constitution, RTE Act (2009) and UN Convention on the Rights of the Persons with Disabilities (2008)," the PIL had argued.

On its part, the state government agreed with the need to have special educators and said all the unaided private schools of Delhi are required to make provisions for special educators for children with special needs. Earlier HC had directed the action committee of unaided private schools to file affidavit explaining about their position on recruitment of special educators, availability of provisions of ramps and special toilets etc. for the children with disabilities.

Source: Times of India

We need sensitized and qualified Disability Commissioners in States

Dear colleagues,

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

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

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

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

The root cause of the problem

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(B) Lack of clearly written instructions for employers

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

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

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

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

(a) prevention of disability;

(b) rehabilitation including community based rehabilitation;

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

(d) job identification;

(e) on site modifications in offices and factories

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

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

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

The general trend

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

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

The road ahead

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

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

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

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

regards

Subhash Chandra Vashishth

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

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

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

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

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

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

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

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

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

Disabled employees suffering as employers not aware of disability provisions

Disabled need support, not your sympathy: High Court

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

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

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

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

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

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

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

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

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

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

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

© Copyright 2010 Hindustan Times

Supreme Court: J&K High Court was insensitive to Teacher with Cerebral Palsy [Judgement Included]

Court: Supreme Court of India

Bench:  Altamas Kabir, Justice and  Cyriac Joseph, Justice

Case No. : Civil Appeal Nos. 2281-2282 OF 2010, (Arising out of SLP(C) Nos.10669-70 of 2008)

Case title: Syed Bashir-ud-din Qadri  Vs. Nazir Ahmed Shah & Ors 

Date of Judgement: 10.03.2010

Brief of the Case

The Appellant was a B.Sc. graduate with cerebral palsy who had applied for a job as a ‘Teaching Guide’ in the State of Jammu and Kashmir. The state government objected to his appointment on the grounds of his disability stating that he had speech and writing difficulties, which would make it difficult for him to perform his duties as a teacher. The Supreme Court held that a person having cerebral palsy should be given access to an external electronic aid as a reasonable accommodation to offset the impact of his inability to write on the blackboard. The electronic assistance would eliminate the need for drawing a diagram and the same could be substituted by a picture on a screen, which could be projected with minimum effort.

This order from Hon'ble Justice Altamas Kabir,  Supreme Court of India, is remarkable in many sense. The order is indicative of the apathy of certain implementing authorities and lack of awareness and sesitivity even at the level of the High Court when it comes to ensure equal opportunities and rights to Citizens with disabilities. 

Expressing concern over the shabby treatment meted out to disabled persons while considering them for government jobs, the Supreme Court has said these cases must be handled with sensitivity and not with bureaucratic apathy. 

Dealing with an appeal filed by a person with cerebral palsy, a Bench of Justices Altamas Kabir and Cyriac Joseph said: “It has to be kept in mind that this is not one of the normal cases relating to a person's claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity.”

Syed Bashir-ud-din Qadri, a B.Sc. graduate, was appointed Rehbar-e-Taleem (teacher) in a government school at Pulwama by the Jammu and Kashmir government under the merit quota for physically challenged candidates. Two committees appointed by the government also approved his appointment after noting that he was capable of discharging his duties. But, acting on a petition from Nazir Ahmed Shah, the High Court set aside his appointment.

Allowing the appeal against this judgment, the Supreme Court said: “The appellant is a person with cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds.” The Bench pulled up the High Court for ordering his dismissal, and directed his reinstatement forthwith with all notional service benefits.

Writing the judgment, Justice Kabir said: “It is unfortunate that in spite of the positive aspects of the appellant functioning as Rehbar-e-Taleem and the clear and unambiguous object of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, the High Court adopted a view which was not compatible therewith. The High Court has dealt with the matter mechanically, without even referring to the Act or even the provisions of Sections 22 and 27 thereof.”

The Bench said: “Instead, the High Court chose a rather unusual method in assessing the appellant's capacity to function as a teacher by calling him to appear before the court and to respond to questions put to him. The High Court appeared to be insensitive to the fact that as a victim of cerebral palsy, the appellant suffered from a slight speech disability which must have worsened on account of nervousness when asked to appear before the court to answer questions.”

As disability did not impede the appellant from discharging his duties, the High Court ought not to have directed the termination of his services, the Bench said.  

Read the Supreme Court Judgement in Syed Bashir-ud-din Qadri Below 

Supreme Court: Employee Acquiring Disability During Service Cannot Be Removed from Employment in Kunal Singh Vs. Union of India & Anr.

Court: Supreme Court of India
Bench: Justice Shivaraj V. Patil and Justice H. K. Sema
Case Title: Kunal Singh v. Union of India & Anr.
Case No.: Civil Appeal No. 1789 of 2000
Decided on: 13 February 2003
Law Involved: Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Background

In a landmark judgment that laid the foundation of disability rights in public employment, the Supreme Court held that a government employee who acquires a disability during service cannot be dismissed, invalidated or reduced in rank merely because of that disability.

The appellant, Kunal Singh, was serving as a Constable in the Special Service Bureau (SSB). During the course of his service, he suffered an injury to his left leg, which eventually had to be amputated after gangrene developed. On the basis of a Medical Board's opinion declaring him permanently incapacitated for further service, the authorities invalidated him out of service.

Challenging the decision, Kunal Singh argued that instead of terminating his employment, he should have been provided alternative duties consistent with his disability and length of service. While the High Court rejected his claim, the Supreme Court examined the scope and purpose of Section 47 of the Disabilities Act, 1995.

Issues Before the Court

The Supreme Court considered:

• Whether an employee acquiring disability during service is entitled to protection under Section 47 of the Disabilities Act, 1995.
• Whether a government employer can invalidate an employee from service solely because a Medical Board declares him permanently incapacitated.
• Whether invalidity pension under the Central Civil Services (Pension) Rules overrides the statutory protection provided under the Disabilities Act.

Key Findings

1) Section 47 Is Mandatory

The Court held that the language of Section 47 leaves no discretion with the employer. Once an employee acquires a disability during service, the establishment cannot dispense with his services or reduce him in rank merely because of the disability. If the employee is unable to perform the duties of the original post, he must be shifted to another post carrying the same pay scale and service benefits. Where no suitable post is immediately available, he must be retained against a supernumerary post until a suitable vacancy arises or he attains the age of superannuation.

2) 'Disability' and 'Person with Disability' Are Distinct Concepts

Rejecting the Union's argument that the appellant was not entitled to protection because he was permanently incapacitated, the Court drew an important distinction between the definitions of "disability" and "person with disability" under the Act.

The Court held that Section 47 protects employees who acquire a disability during service, irrespective of whether they satisfy the definition applicable to reservation in initial recruitment. The provision is intended to safeguard existing employees who become disabled while serving.

3) Invalidity Pension Cannot Replace Employment Protection

The respondents argued that since the appellant had been granted invalidity pension under the Central Civil Services (Pension) Rules, 1972, no further relief was required.

The Supreme Court rejected this contention, holding that the Disabilities Act is a special welfare legislation. Applying the principle generalia specialibus non derogant, the Court held that the Pension Rules cannot override the mandatory protection contained in Section 47. The Disabilities Act supplements other service benefits and does not operate in derogation of them.

4) Disability Rights Are Part of Social Welfare Legislation

Tracing the legislative history of the Disabilities Act, the Court noted that it was enacted pursuant to India's commitment under the Beijing Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region.

The Bench observed that social welfare legislation protecting persons with disabilities must receive a liberal interpretation that advances its object of ensuring equal opportunity, dignity and participation.

Decision

Allowing the appeal, the Supreme Court:

• set aside the order invalidating the appellant from service;
• held that Section 47 imposed a mandatory obligation upon the employer to protect his employment; and
• directed the authorities to grant him the benefits contemplated under Section 47, including alternative employment or placement on a supernumerary post, as the case may be.

Why This Judgment Matters

a) Foundation of Employment Protection Jurisprudence

Kunal Singh is widely regarded as the seminal judgment interpreting Section 47 of the Disabilities Act, 1995. Its principles continue to govern Section 20 of the Rights of Persons with Disabilities Act, 2016, which substantially carries forward the same protection.

b) Disability Is Not a Ground for Loss of Livelihood

The decision firmly establishes that acquiring a disability during service cannot become a reason for depriving an employee of employment, income or career progression.

c) Reasonable Accommodation Before It Was Statutorily Recognised

Although the term "reasonable accommodation" did not appear in the 1995 Act, the judgment effectively recognised its underlying principle by requiring employers to identify suitable alternative posts rather than terminate disabled employees.

DRI Commentary

Kunal Singh remains one of the cornerstones of disability rights jurisprudence in India. Before this decision, employees acquiring disabilities during service were routinely invalidated out of employment on the basis of medical opinions declaring them unfit for their existing posts.

The Supreme Court fundamentally changed that approach by shifting the focus from medical incapacity to employment protection. The Court recognised that while an employee may become incapable of performing one particular job, this does not justify extinguishing the employment relationship itself. The employer's obligation is to identify an alternative role or create a supernumerary post until suitable work becomes available.

Equally significant is the Court's clarification that Section 47 protects employees acquiring disabilities during service, irrespective of the benchmark disability requirements applicable to reservations in recruitment. This distinction has shaped disability employment jurisprudence for over two decades and continues to influence judicial interpretation under the Rights of Persons with Disabilities Act, 2016.

Perhaps the judgment's greatest contribution lies in its recognition that disability rights are not matters of charity or administrative discretion. Employment security is a statutory right, and the State bears a positive obligation to accommodate employees who acquire disabilities while serving the public.

Kunal Singh continues to be the leading authority whenever employers attempt to terminate, compulsorily retire or invalidate employees solely because they have acquired a disability during service.

Read the Judgement (Embedded)

Read the Judgement (content below)

Court: Supreme Court of India

Bench: Hon'ble Justice Shivaraj V. Patil, and Hon'ble Justice H.K. Sema

Case No.: Appeal (civil)  1789 of 2000

Caste Title:   Kunal Singh  Vs. Union of India & Anr.
Date of Judgement:  13 February 2003
Act/Law: Section 47 of The Persons with Disabilities Act 1995

JUDGMENT:

By Shivaraj V. Patil, J.

The appellant was recruited as a Constable in the Special Service Bureau (for short 'the SSB'). When he was on duty, he suffered an injury in his left leg. The medical aid given to him did not help. Ultimately, his left leg was amputated on account of gangrene which had developed from the injury. He was invalidated from service by the respondents on the basis of the report of the Medical Board, Kullu under which he was declared permanently incapacitated for further service as per order dated 20.11.1998 passed by the Commandant, Group Centre, SSB Shamshi (Kullu). He filed a writ petition in the High Court challenging the validity and correctness of the said order on the ground that it was arbitrary and that he could have been assigned with alternative duty which he could discharge keeping in view the extent of his disability and having due regard to 17 years of his unblemished service. The writ petition was dismissed by the High Court holding that he had been permanently invalidated on the basis of the medical opinion and as such there was no scope for him to continue any further in service of any kind in the SSB. Hence, this appeal is filed assailing the impugned order. It appears, before the High Court, no argument was advanced specifically in support of the writ petition on the basis of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'the Act'). However, a specific ground is raised in this appeal based on Section 47 of the Act. Since it is a pure question of law, we have heard learned counsel for the parties on the contentions including the one based on Section 47 of the Act.

2.    The learned counsel for the appellant, pointing to few relevant definitions contained in Section 2 and Section 47 of the Act, urged that on the facts and circumstances of the case, keeping in view the object and purpose of the Act, relief ought to have been granted as sought in the writ petition.

3.    In opposition, the learned Senior Counsel for the respondents made submissions in support and justification of the impugned order. He also drew our attention to Rule 38 of the Central Civil Services Pension Rules, 1972 under which the appellant is granted invalidity pension which he is drawing. According to him, in view of the relevant definitions contained in Section 2 of the Act, the appellant is not a person with disability as he is permanently incapacitated. He also drew our attention in support of his argument to Section 2(o) of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 to make a distinction.

For proper appreciation of the rival submissions of the learned counsel for the parties, it is useful and necessary to notice few definitions as contained in Section 2 and Section 47 of the Act.

"2. Definitions In this Act, unless the context otherwise requires, -

(a) to (d)..............................

(e) "Cerebral palsy" means a group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the pre-natal, peri-natal or infant period of development;

(f) to (h).............................

(i) "disability" means-

(i) to (iv).......................

(v) locomotor disability;

(vi) to (vii).....................

(j) ..................................

(k) "establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government;

(l) to (n).............................

(o) "locomotor disability" means disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy."

(p) to (s)..............................

(t) "persons with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;

(u) to (v)..............................

(w) "rehabilitation" refers to a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric or social functional levels;

 

"47. Non-discrimination in Government employments - (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service;

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits;

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

According to the learned counsel for the appellant, his disability falls under Section 2(i)(v), namely locomotor disability. What is meant by locomotor disability is stated in Section 2(o). There is no dispute that the Act applies to the establishment of the respondents and this establishment is not exempted under any notification issued under Section 47 of the Act. "Persons with disability" means a person suffering from not less than 40% of any disability as certified by a medical authority as per the definition given under Section 2(t).

Short question that arises for consideration in this appeal is whether the appellant is entitled for the benefit of Section 47 of the Act.

From the facts, which are not in dispute, it is clear that the disability suffered by the appellant is covered by Section 2(i)(v) read with Section 2(o) of the Act. It is also not in dispute that this disability was acquired by the appellant during his service. Under Section 2 "disability" and "person with disability" are separately defined and they are distinct. We may also notice some provisions in Chapter VI of the Act relating to employment. Section 32 deals with identification of posts which can be reserved for persons with disabilities. Section 33 speaks of reservation of such percentage of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Section 38 requires the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. Section 47 is included in Chapter VIII of the Act. Chapter VI deals with employment relating to persons with disabilities including identification of posts and reservation of vacancies for such persons. Under this Chapter, reservation of vacancies for persons with disabilities is made for initial appointments. Section 47 in Chapter VIII deals with an employee of an establishment who acquires a disability during his service.

The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the 'Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asian and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions'. This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons. 

Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. 

An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service. The argument of the learned counsel for the respondent on the basis of definition given in Section 2(t) of the Act that benefit of Section 47 is not available to the appellant as he has suffered permanent invalidity cannot be accepted. Because, the appellant was an employee, who has acquired 'disability' within the meaning of Section 2(i) of the Act and not a person with disability.

We have to notice one more aspect in relation to the appellant getting invalidity pension as per Rule 38 of the CCS Pensions Rules. The Act is a special Legislation dealing with persons with disabilities to provide equal opportunities, protection of rights and full participation to them. It being a special enactment, doctrine of generalia specialibus non derogant would apply. Hence Rule 38 of the Central Civil Services (Pension) Rules cannot override Section 47 of the Act. Further Section 72 of the Act also supports the case of the appellant, which reads: - "72. Act to be in addition to and not in derogation of any other law. - The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with disabilities."

Merely because under Rule 38 of CCS Pension Rules, 1972, the appellant got invalidity pension is no ground to deny the protection, mandatorily made available to the appellant under Section 47 of the Act. Once it is held that the appellant has acquired disability during his service and if found not suitable for the post he was holding, he could be shifted to some other post with same pay-scale and service benefits; if it was not possible to adjust him against any post, he could be kept on a supernumerary post until a suitable post was available or he attains the age of superannuation, whichever is earlier. It appears no such efforts were made by the respondents. They have proceeded to hold that he was permanently incapacitated to continue in service without considering the effect of other provisions of Section 47 of the Act.

For the reasons stated and discussions made above, the appeal deserves to be accepted. Hence the impugned order affirming the order of termination of services of the appellant is set aside and the appeal is allowed. We direct the respondents to give relief in terms of Section 47 of the Act.

There shall be no order as to costs.

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