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)

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

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.

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

Employees with Disabilities can be denied promotion on grounds of efficiency, security and safety.

Dear Friends,

We have got in to a habit of opposing any thing that takes away rights of the disabled. But here is the time to think, cogitate and reason out. While on one hand the enabling PWD Act says that Promotion can not be denied on the grounds of Disability, this black judgement says people with disability can be a risk to safety & security to equipments, themself and to the organisation they work for, etc!

Hon'ble Supreme Court has said that Efficiency can be a ground to refuse promotions to those with disability if their disability poses a threat to the security, safety and efficiency. The issue is very sensitive for it goes against the intent of the beneficial legislation and poses threat of stagnation before an employee with disability or those who acquire a disability while in service.

The PWD Act actually mandates a social security system for those who happened to acquire disability or have disability that they don't get stagnated. And it is well known now that with assistive aids and devices, the employees with disabilities are no less than their non-disabled counter parts.

The problem is that there is no rehabilitation programme for those who acquire disability during service and also there is no sensitization in the superior officers who recommend or decide on promotions and sit in the Selection Committees and DPCs!

Even this judgement seem to be going against the spirit of the PWD Act and also doesn't take in to account the role of modern technology in enabling a person with disability while at work. Its easy to label some one unproductive, inefficient, risk for security and safety but equally difficult to remove these labels.

To me, this judgement reflects the attitude of general society toward the disabled. It reinforces a minimum medical standard for promotion even for disabled people. There were already biases and negative attitudes but the law was enabling the employees with disabilities to fight back and seek their rights.

I am sure this judgement would go as a dark phase in the history of disability and development and employees would never be promoted under this garb and would remain stuck at where ever they are.

I fear that under these situations and conditions, the Courts might come against Section 47 also and refuse the employee acquiring disability during service to even continue on the present post in the garb of security, safety and efficiency!! I deeply regret this judgement for I don't find it any way close to the intent of The Persons with Disabilities Act and as well as UN Convention on Rights of Persons with Disabilities!

My experience with The Indian Railways has been very negative so far as the rights of disabled in employment are concerned. At each step they have refused to accommodate people with disabilities in their workforce on some or the other ground and the sector had to knock the doors of the Judiciary. We had favourable judgements from the highly sensitized judges of High Court of Delhi and other high courts but this time the Railways have managed to manipulate and misrepresent the abilities of people with disabilities before the court as well as perpetuated their age old believe that disabled employees pose a risk even in the controlled set up like research laboratories!!

To me, its more a case of improper and misrepresentation of facts and law before the double bench and this is not in the interest of the disability sector. I don't see that after this judgement, the long list prepared by Min. of Social Justice of the Jobs suitable for People with disabilities is of any relevance!!

regards

SC Vashishth, Advocate-Disability Rights

To reach from source click here: Times of India

Efficiency can be a ground to deny promotion to a disabled: SC

Dhananjay Mahapatra, TNN 23 July 2009, 03:43am IST NEW DELHI: In a significant judgment, the Supreme Court has ruled that the government or an employer can deny promotion to a disabled person if they are of the opinion that it can compromise efficiency, security or safety.

A Bench comprising Justices R V Raveendran and P Sathasivam gave this ruling despite being fully aware of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandated that "no promotion shall be denied to a person merely on the ground of his disability". Allowing an appeal of the Union government, the Bench said the 1995 Act would have no significance where the employer stipulated minimum standards for promotion keeping in view safety, security and efficiency.

"If the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then the Act would not be attracted, nor can it be pressed into service for seeking promotion," said Justice Raveendran writing the judgment for the Bench.

Clarifying that it was not against the legislative intention behind the 1995 Act, the SC said: "Where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion merely on the ground of his disability."

The Bench said it was aware of the intention of the Act, that was to give a helping hand to persons with disability so that they could lead a self-reliant life with dignity and freedom. "But, the intention of the Act is not to jeopardize the safety and security of public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability," the Bench said.

The apex court, through this judgment, upheld the prescription of a minimum medical standard for promotion from Senior Research Assistant to Chief Research Assistant in the Research Designs and Standards Organisation of the railway ministry and upheld the Union government's decision not to grant promotion to a disabled person who did not meet the minimum standards.

dhananjay.mahapatra@timesgroup.com

Delhi High Court gets tough on Railways for failing to fill up the reserved seats of Disabled

Dear Friends,

An update on the case being argued currently by Mr. Mani, my colleage at AICB's Advocacy Committee which incidently I had filed few years back!

The High Court is taking the matter seriously as it is seized with the matter for a long time now. I have a fear- a genuine fear! The recruiting organisations often count the candidates on reserved seats even if they clear on their own merit thereby limiting the recruitment prospects. Thus the reservation policy often works counter-productive.

Till today, I have not come across any case where the person even though higher in the merit and selected in Disabled Quota ever went and challenged as to why he was selected in reserved quota and not on his own merit - for his job is done and he doesn't want to antagonise the employer.

Others never come to know about the waiting list unless they apply for it under RTI. Thus many who genuinely need that reservation to find an employment never get that.

Another area of concern is counting an old employee who was recruited as non-disabled but acquired disability during his service, in disability quota . This also further restricts the quota and doesn't give clear picture of the implementation of the reservation policy of the employer. Well, this needs some serious cogitation!

regards

Subhash Chandra Vashishth
09811125521

Here is the press release :

New Delhi, Monday, 6th April 2009:

While hearing a petition filed by AllIndia Confederation of the Blind relating to violation of persons withdisabilities Act by the Indian Railways, a division bench of the Delhi High Court headed by Justice A. P. Shah (Chief Justice) sharply criticized the railways for not adhering to the court orders of 20th January 2009 directing it to maintain a roster with regard to appointments of disabled persons in Railways.

Earlier, a joint report worked out by the petitioner and the respondent asper the directions of the Delhi High Court had stated that there was awhopping backlog to the extent of 4254 vacancies on which disabled persons should have been appointed as per the persons with disabilities Act, but therailways did not adhere to the provisions of this Act.

Mr. Rajan Mani, counsel for the petitioner, All India Confederation of the Blind, argued that maintaining a roster was the first step towards ensuring reservations for disabled persons. ”Clearly, the Railways is not serious about fulfilling its statutory obligations,” he argued.

The honuorable Chief Justice observed that non compliance of court ordersamounted to contempt of the Court. He directed that Secretary Railways /Member (staff recruitments) be present in person on Monday 13th April 2009.The court also directed Railways to start special recruitment drive toappoint disabled persons by utilizing at least 50% of the available vacancies for this purpose. In a landmark order the court also directed therailways that no recruitment will take place unless provision is made tofill up 4254 vacancies reserved for disabled persons.

MCI not allowing a candidate with polio in upper limbs to pursue PG Course

Hi,
Here is yet another example of attitude- (often attitudes have been termed as real disabilities!) of MCI not allowing the petitioner in this case to pursue her PG Course in Radiology.

Saroj Yadav, who has post polio residual paralysis of the right hand between the shoulder and the elbow, has completed MBBS from Grant Medical College and is currently pursuing PG course in radiology which was opposed by the MCI.

According to MCI rule, candidates with upper limb disabilities are not eligible for admission to MBBS course, too. However, as a result of this petition, the Bombay High Court has clearly said that the Candidate has proved that the rule is Bad and granted provisional admission to Saroj.

Often authorities fail to even recognise the abilities of the people with upper limb disabilities. A person with a congenital both arms malformation is not suitable for any job as per the Identification List published by Government of India. However, the list itself is not exhaustive and only indicative. In such a scenario the authorities fail to appreciate the abilities of the candidate and unilaterally close all doors of opportunities for them.

You may read the detailed news article at http://www.svayam.com/?q=node/714 and just wait for the final judgement which I shall post on this very blog.
warm regards
SC Vashishth