Delhi High Court directs the private schools to make their schools barrier free & inclusive

Dear Colleagues,

After its order directing all private and government schools in Delhi to appoint Special educators for children with disabilities and provide necessary teaching and learning material earlier, the Delhi High Court, on a petition by Social Jurist has ordered to make all private schools barrier free for the disabled. It was brought to the notice of the court that private schools do not have adequate physical and academic infrastructure for children with disabilities and thus children forced in to these institution continued to face discrimination.

It was pointed out in the petition that there are 2039 unaided recognized private schools (1260 recognized by Directorate of Education (DoE), GNCTD and 779 recognized by MCD) and 258 aided recognized private schools (214 aided by DoE, GNCTD and 44 aided by MCD) in Delhi and most of them do not have the provisions of basic physical as well as academic infrastructure, including Special Educators as required for the education of the children with disabilities; These schools also did not provide barrier free infrastructure to the children with disabilities. This violated Right of Children to Free and Compulsory Education (RTE) Act, 2009 of such children as guaranteed under Articles 14,15,21, 21-A & 38 of the Constitution of India as well as contrary to the provisions of Delhi School Education Act, 1973, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, U.N. Convention on Rights of Child (1989) and U.N. Convention on Rights of Persons with Disabilities (2006).

The bench of Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw while hearing the petition W.P.(C) No.4618/2011 titled  Social Jurist, A civil rights group versus Govt. of NCT of Delhi directed all recognised, aided and unaided private schools in Delhi to appoint special educators and to make their buildings/school premises barrier-free for children with disabilities. The Director of Education has been directed to ensure that the Court Orders were followed and to de-recognise any school that has not made its premises disabled-friendly.

The court has now granted time up until March 31, 2013, to the schools to make their premises barrier-free and to appoint special educators with the next two years.

“Schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for special educators...no school shall refuse admission to children with disability for the reason of not employing special educators or not providing barrier-free access on the school premises,” the court order says.

The court has also clarified that the capital expenditure on making the school building and premises barrier free so as to allow free movement to children with disability has to be incurred by the schools from their own coffers and is not reimbursable by the Government as Section 19 of the RTE Act requires all schools, as a condition for their recognition, to provide a barrier free access in their buildings.

The Court ordered that the schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises. 

It may be pertinent to mention here that earlier a Division Bench of the Delhi High Court in matter Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi 163 (2009) DLT 489 had directed the GNCTD as well schools run by local bodies namely NDMC, MCD and Cantonment Board to ensure that each school shall have at least two special educators and that necessary teaching aids and reading materials are provided to children with disability. However, this did not cover the Private schools.

Those who want to go through the detailed order, Click here. W.P.(C) No.4618/2011

Media Coverage

Indian Express-  Make pvt schools barrier free for disabled: HC

regards

Subhash Chandra Vashishth

Advocate

ICAI's writer guidelines still discriminatory against persons with disabilities

Dear Colleagues,

This post is to alert the students with disabilities appearing in the CA exams organised by ICAI that start tomorrow onwards i.e. 02 May 2013 onwards and are facing any problem with regard to scribe / writers etc. 

Background
The Department of Disability Affairs, Ministry of Social Justice & Empowerment, Govt. of India on the order of Chief Commissioner Disabilities, have issued "Uniform and Comprehensive Guidelines for conducting examinations for the persons with disabilities"  vide Memorandum No F.No. 16-110/2003-DD.III dated 26 Feb 2013. These guidelines are binding on all the recruitment agencies, academics/ examination bodies including ICAI.

However, the ICAI's has till date not taken any step to revise their writer guidelines. Many of you would recall that last year during the month of April, we had to challenge the arbitrary and unreasonable Writer's Guidelines that put draconian conditions for usage of writers/ scribe by the persons with disabiliteis.  This issue was covered in my earlier post dated 26 April 2012 titled "ICAI imposes arbitrary writers/ scribes conditions for students with disabilities". 

When the ICAI did not budge even after a clear cut order from the Court of Chief Commissioner Disabilities, we had to urgently move the Delhi High Court on 02 May 2012 who passed its Judgement in the matter titled "Subhash Chandra Vashishth Vs. Institute of Chartered Accountants of India" on the same day allowing the petition and striking down the arbitrary guidelines as detailed in my earlier post dated 02 May 2012 for the said exams.

Discrimination Continues

Though as directed by the Hon'ble High Court in the above order, in a subsequent meeting of the ICAI board, some conditions objected by us were removed and a new guideline was brought out. However, several restrictive conditions still remained which are now running contrary to the Uniform Guidelines of the MSJE dated 26 Feb 2013. 

One of them is "Writer should be the same person for all the papers of an examination and in case there is a need to change the writer for the reasons beyond the control of the concerned examinee or the writer and a request in this behalf is made, change may be allowed.  Such a change in writer will be permissible once during the course of an examination." 

This works against the interest of the persons with disabilities since it is difficult to find good writers in the exam season. And one person can have exigencies of life that may now allow him/her to attend all the examinations.  Only a person with disability knows how difficult it is to find a competent writer. 

The ICAI has further restricted the writers on the basis of qualifications. The chartered accountancy is a technical examination and any undergraduate can not reduced the dictation on the answer sheet with perfection. But the ICAI has put in the following qualifications for writers:

Examination	Qualification of writer as per ICAI's Guidelines	MSJE Guidelines
CPT	10th/ /Matriculation	No cap on qualification. Invigilation needs to be strengthened
Final/Intermediate [IPCE]	Under Graduate and neither registered students of CA/CWA/CS course nor passed Final examination and nor a member of the ICAI, ICWAI, and ICSI.	No cap of qualifications
Post qualification course (meant for members of  ICAI )	Graduate (other than in Commerce or Corporate Laws Stream )  and neither registered students of CA/CWA/CS course nor passed Final examination and nor a member of the ICAI, ICWAI, and ICSI.	No cap on qualifications

One of the candidate wrote to the ICAI officials in mid of March 2013 requesting ICAI to relax the conditions so that they could appear with multiple writers those who are at least commerce graduates. However, today i.e. one day before the examination, suddenly the candidate received the following response by email :

"Please refer to your mail dated 14th March, 2013, stating, inter alia, as under:-

(a)  I be permitted to get different scribes for the different days of examinations so that unavailability of good scribes does not cause an impediment to my succeeding at the examination and;

(b)  It is requested that the regulations with relation to scribes be revised to enable visually impaired persons to use scribes who are commerce graduates.

In connection in the above, following is stated as under:

a)   In terms of related guidelines in place, ‘writer should be the same person for all the papers of an examination and in case there is a need to change the writer for the reasons beyond the control of the concerned examinee or the writer and a request in this behalf is made, change may be allowed.  Such a change in writer will be permissible once during the course of an examination.’

Hence, we regret our inability to accede to your request for different writers. In case, however, change in writer is beyond your control, you may submit a  request at the appropriate for change in writer as stated above. Such a change would be permissible only once.  The related guidelines are hosted on website www.icai.org .  You may like to visit the same.

b) The guidelines are framed at appropriate level vis-à-vis considering all the relevant factors.  Please refer to point No.2 of the enclosed revised guidelines.

ICAI, Exams."

The candidate was shocked to receive the response just a day before the exam. It is ICAI's tactic to inform the candidates closer to the actual exam so that no candidate can approach for legal remedy and suffer in silence. They did this last year also. 

The so called revised guidelines hosted on the icai website  have been found to be arbitrary, unlawful and highly unfair for persons with disabilities. The Additional Secretary- Exams, ICAI has been alerted to resolve this on priority today through a detailed telephonic call and also a detailed email by the undersigned. However, the response did not confirm any immediate action but only a typical  assurance "we are seized of the matter and are looking at it. Lets see what we can do  and we will try to do something....."

The Chief Commissioner- Disabilities has also acted promptly with a letter asking the ICAI to not only allow the students with disabilities to avail multiple number of scribes/ writers to write their exams but also have writers with no cap on qualifications or age etc. It means a student with disability can also take along with him/her a junior student studying in the same college/institution or a family member.

All students with disabilities espcially those who are entitled for writers/ extra time and who are to appear in the ICAI examination that starts tommorrow should claim the benefits of the Scribe Guidelines of the Ministry of Social Justice referred above.If any of the students/ candidates with disabilities particularly those with vision impairment  face any problem while appearing for the ICAI exams that start tomorrow, please do let us know.

Mr. Pranay Gadodia & others at Eye-way Help Desk  deserve accolades for facilitating the candidates approach us in time. 

Madras High Court reinstates conductor citing section 47 of Disabilities Act

Dear Colleagues,

It is little surprising that the corporations, government departments continue to disregard Section 47 of Indian Persons with Disabilities Act  1995 that provides as under:


"47. (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. "

Despite the clear cut provisions in the Act, Ravichandran, a conductor with the Tamil Nadu State Express Transport Corporation was declared medically unfit to continue in service by a medical board in 2004 and removed from service, though with an assurance of an alternate employment which was refused later.

The Court reinstated the conductor with back wages from the date of his termination citing Section 47 ibid.

Here is the news coverage.



Conductor sacked over disability, gets back job
TNN | Jan 23, 2013, 06.24 AM IST

CHENNAI: About nine years after a government bus conductor was removed from service on the ground of an unidentified 'disability', the Madras HC has ordered his immediate reinstatement with all salary arrears and service seniority.

Justice D Hariparanthaman, ruling on a petition filed by T M Ravichandran, said: "Any employee who acquires disability during his service is given protection under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. There is a mandate under the Act that no establishment shall dispense with a staff who acquires a disability during service."

Ravichandran, a conductor with the Tamil Nadu State Express Transport Corporation, was found 'medically unfit' to continue in service by a medical board of the Government General Hospital in Chennai on February 2, 2004. He was removed from service on August 16, 2004, with an assurance that he would be given an alternate employment based on the seniority list. On December 26, 2011, however, the corporation rejected his request for reinstatement, stating that no other suitable post was available.

Rejecting the transport authorities' stand, Justice Hariparanthaman said Section 47 contemplated that if there is no suitable post is available, the person should be kept on a supernumerary post till a vacancy arises or till his superannuation. "There cannot be any gap between the disqualification of an employee due to acquiring disability and adjustment in a suitable post," he said, setting aside the dismissal order. The judge then asked the authorities to reinstate Ravichandran in service within two weeks along with back wages from the date of his termination.

Forcefully retired while on leave, cancer patient granted pension

Dear colleagues,

We have seen in the past that several persons with disabilities have been removed from service by forcing them voluntary retirement on acquiring disabilities in contravention to Section 47 of the Persons with Disabilities Act.

The instant case is of an employee with State Bank of India (Chennai Circle) who was a cancer patient and was forcefully "voluntary retired" while she was on leave undergoing treatment for cancer some 12 year back. The irony is that she continued to fight till 2005 when her gratuity and PF were settled after prolonged representations. However, she was denied her pension and she had to approach the court.

Now after several years of protracted legal battle, the Madras High court has allowed her appeal granting her the pension. Though this is not directly related to a person with disability, however is a good case law in cases where employers take unilateral actions removing employees from service without even informing them. Here is the report.


For cancer patient, a protracted battle for pension is finally won;  Court says voluntary retirement had been forced on the petitioner.

A cancer patient who was ‘voluntarily’ retired by a nationalised bank has won a legal battle for pension with the Madras High Court declaring she is entitled to the benefit.

A Division Bench comprising Justices C. Nagappan and M. Sathyanarayanan granted a declaration on an appeal by Premila Kiruba Augustus. She had joined State Bank of India as a clerk-cum-typist at the Bangalore Main Branch and on her request was transferred to Chennai Circle in January 1981. She was posted as an electronic machine operator from May 1990. When she was on leave for personal reasons, the bank ‘voluntarily retired’ her from service on March 31, 1999. She challenged the order by raising an industrial dispute and after it failed, asked for a reference before the Labour Ministry. This was declined on grounds of a delay. She then made several requests for her pension to be settled. She had completed 25 years of pensionable service. Her gratuity and provident fund were settled in 2005. However, her request for pension was not considered.

Hence, she filed a writ petition. She was not guilty of delay because the bank failed to respond to her representations, it said. She could not pursue her pension claim as her husband underwent a bypass surgery and her father, who was living with her, also underwent a hip replacement surgery and later died. She was diagnosed with cancer and was undergoing treatment. She sought to declare the bank’s action in not sanctioning pension after retiring her, illegal.

The bank contended that the petitioner had voluntarily abandoned her service. Therefore, in terms of a bipartite settlement, she was voluntarily retired from service. Since, she did not make a request seeking voluntary retirement, she could not claim pension.

In June last year, a single Judge disposed of the writ petition with a direction to settle the pensionary benefits. The settlement was to be made depending upon the outcome of another case before the Supreme Court. This case arose out of a Punjab and Haryana High Court ruling that the settlement in question had undergone a change. Mrs. Augustus and the bank preferred appeals against the single Judge’s order.

The petitioner’s counsel, S. Vaidyanathan, said the case pending before the Supreme Court had nothing to do with the facts of the present case. Since the bank itself had voluntarily retired the petitioner from service, it amounted to deemed voluntary retirement. As a corollary, the petitioner was entitled to pension as she had put in the required number of years of pensionable service.

Writing the common judgment for the Bench, Justice M. Sathyanarayanan said considering the facts and circumstances and the Supreme Court’s decision in Syndicate Bank vs Satya Srinath, which was applicable to the present case, it was of the view that voluntary retirement had been forced on the petitioner. The bank’s contention that she had voluntarily abandoned the service could not be sustained.

There was no necessity to await the Supreme Court’s judgment. The Bench allowed her appeal and dismissed the bank’s appeal.

Woman had completed 25 years of bank service;  She had then been ‘voluntarily’ retired;  Court says voluntary retirement had been forced on the petitioner.

Source: The Hindu

Non discrimination, UN CRPD and Disabled Soldiers in India

Dear Friends,

The two most enabling sections of the The Persons with Disabilities Act 1995 i.e. section 33 (Employment Chapter) and section 47 (Non Discrimination Chapter) have been made redundant by their disabling proviso which I call as Black proviso i.e.  "Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

This black provisio continues in the new draft Right of Persons with Disabilities Bill 2012  ready to be tabled in the parliament in different sections. The biggest victim of this proviso under Section 47,  have been those brave citizen of this vast nation who risked their lives to preserve the integrity of their motherland while being in defense forces, para-military forces & police departments and acquired disabilities - both minor or severe. The effect of this black proviso has been catastrophic on the morale of those who are out there on the borders to defend the nation or stationed in troubled areas to control the  law and order and save the democracies.

What will happen to me and my family if I become disabled during the course of duty or during my job? Am I being treated like my civilian counter parts when it comes to the social protection or non-discrimination? .... such questions plague the psyche of the ordinary officers of our forces - thanks to the black proviso and the subsequent notification by the Govt. of India under the said proviso declaring the defense forces to be kept out of the ambit of the protections available under this section.

Civilian Employees Versus Combatant Employees

Lets understand how the two employees - one civilian and one from the forces is treated under section 47 of the disabilities Act:

The section mandates as below:

"47. Non-discrimination in Government Employment - (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.  (most misused proviso)

Now if it was a civilian employee under the government, on acquiring a disability due to any reason, his pay scale and service benefits remain protected even if the disability sustained limits the functional capacities of the person to an extent that he/she can not be adjusted against any existing post. Such a person remains on a supernumerary post until a post is found out or till he attains age of superannuation.

On the contrary, an employee from the forces, on acquiring a disability - whether during the course of duty or during any mishap when not on duty is invariably  medically  boarded out with a paltry disability pension and left to fend for himself in the grim employment scenario. The family members and dependents suffer due to sudden calamity and the person becomes a liability for the family in absence of strong social security provisions. 

Why the talented youth is not attracted to Forces any more

Given an option, any talented young person would prefer a civil employment to an employment in the forces since the forces have not thought to respect for the sacrifices or say the human rights, social security and non-discrimination clauses of the central laws and international human right conventions. The youth of today knows there is no future in the forces. Worst - in case of a mishap - death or disability is inevitable. And both  will take away the bread winner of the family with no social protections.

Need to think out of box in light of UN CRPD

We as a nation has to think what we offer to our sons and daughters  who risk their lives for the country in comparison to a civilian on duty. Also we have to walk the talk since India is among first few handful countries  who signed the UN Convention on Rights of Persons with Disabilities on the very first day of its opening for signature and subsequently ratified the same. However, we continue to discriminate on the basis of disability when it comes to government employment in forces.

The UN Convention defines "Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation;

Some possibilities worth considering

Not all jobs in the forces are of combatant nature and many involve desk jobs such administration, logistics, equipment, stores, purchase and several others. This means that the exemption given under the garb of black proviso, can be easily withdrawn and combatants acquiring disabilities can be adjusted in non-combatant jobs/branches. 

If the Government feels that it may compromise with the war preparedness of the forces, it may also consider keeping all such severely disabled combatant employees on supernumerary posts with full pay scale and other benefits. While those who are with disabilities that allow sufficient functional abilities to be gainfully occupied in the desk operations, should be accommodated in the base units/formations.

This can help fill up the huge shortfall in the forces by motivating the youth and assuring them that they would not be discriminated if they become disabled while in service- whether the injury was or not attributable to service.

This would ensure that our forces do not discriminate on the basis of disability and are in conformity with the UN Convention on the Rights of Persons with Disabilities. There have been several examples in the defence forces where combatants who acquired disability during action were retained and such a trend is very good, however, one should not be forced to go to Armed Forces Tribunal each time to obtain right to equality before the law and equal protection of the law (Art 14 of the Constitution) and Article 5 (equality and non-discrimination) of the UNCRPD.

We don't need to wait for the new draft law to come in to being to enforce this and it can be simply done by withdrawing the "Black Proviso" and the Notification of Exemption accordingly encapsulating the above.

Court rules severely disabled woman wasn't raped because she didn't 'bite, kick or scratch' her assailant

This outrageous judgement from Connecticut State Supreme Court is only going to encourage crimes against disabled women! This indicates the prejudices, negative attitudes, lack of awareness about the disabling conditions that many of us live with in the community, especially among certain sections of the judiciary!

Court Rules Severely Disabled Woman Wasn't Raped Because She Didn't 'Bite, Kick or Scratch' Her Assailant

October 3, 2012    

In a 4-3 ruling Tuesday afternoon, the Connecticut State Supreme Court  overturned the sexual assault conviction of a man who had sex with a woman who “has severe cerebral palsy, has the intellectual functional equivalent of a 3-year-old and cannot verbally communicate.” The Court held that, because Connecticut statutes define physical incapacity for the purpose of sexual assault as “unconscious or for any other reason. . . physically unable to communicate unwillingness to an act,” the defendant could not be convicted if there was any chance that the victim could have communicated her lack of consent. Since the victim in this case was capable of “biting, kicking, scratching, screeching, groaning or gesturing,” the Court  ruled that that victim could have communicated lack of consent despite her serious mental deficiencies:

When we consider this evidence in the light most favorable to sustaining the verdict, and in a manner that is consistent with the state’s theory of guilt at trial, we, like the Appellate Court, ‘are not persuaded that the state produced any credible evidence that the [victim] was either unconscious or so uncommunicative that she was physically incapable of manifesting to the defendant her lack of consent to sexual intercourse at the time of the alleged sexual assault.’

According to the Rape, Abuse, and Incest National Network (RAINN), lack of physical resistance  is not evidence of consent , as “many victims make the good judgment that physical resistance would cause the attacker to become more violent.” RAINN also notes that lack of consent is implicit “if you were under the statutory age of consent, or if you had a mental defect” as the victim did in this case.

Anna Doroghazi, director of public policy and communication at Connecticut Sexual Assault Crisis Services,  worried that the Court’s interpretation of the law ignored these concerns: “By implying that the victim in this case should have bitten or kicked her assailant, this ruling effectively holds people with disabilities to a higher standard than the rest of the population when it comes to proving lack of consent in sexual assault cases. Failing to bite an assailant is not the same thing as consenting to sexual activity.” An amicus brief filed by the Connecticut advocates for disabled persons  argued that this higher standard “discourag[ed] the prosecution of crimes against persons with disabilities” even though “persons with a disability had an age-adjusted rate of rape or sexual assault that was more than twice the rate for persons without a disability.”

Source: www.alternet.org 

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

Dear Colleagues,

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

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

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

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

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

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

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

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

To read/download the Show Cause Notice click here.

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

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

regards

Adv Subhash C Vashishth

Bombay HC panel to evaluate the prototype of Accessible Railway Station

Dear Colleagues,

This is further to my earlier post on 29th Jan 2012 titled Bombay High Court directs Railways to be Sensitive to Disabled.

There is some development in the case pending in the Bombay High Court against the Indian Railways, however, this doesn't seems encouraging as an important member of the High Court appointed panel Mr. Sudhir Badami feels, "The railways should have involved us right at the stage of drawings. I have visited these facilities but they are not up to the mark," 

The Railways have put up a prototype of disabled-friendly low-height booking counters, a separate toilet and drinking water dispensing facility has been set up at Dadar station. 

"If the panel appointed by the high court gives its approval, Central Railway will start constructing similar facilities at other stations," said a senior Railways official. Western Railway has created a such facilities at Bandra Terminus. Currently, there are only six disabled-friendly toilets at 109 local stations in Mumbai. 

This is a result of a petition  filed by the India Centre for Human Rights and Law in the Bombay HC seeking directives to the railways to provide "accessible facilities at stations and on suburban trains"  which is pending adjudication in the Bombay High Court. 

Source: The Times of India

Delhi High Court directs the private schools to make their schools barrier free & inclusive

Dear Colleagues,

After its earlier order directing all private and government schools in Delhi to appoint Special educators for children with disabilities and provide necessary teaching and learning material, the Delhi High Court, on a petition by Social Jurist has now ordered to make all private schools barrier free for the disabled. 

It was brought to the notice of the court that private schools do not have adequate physical and academic infrastructure for children with disabilities and thus children forced in to these institution continued to face discrimination.

It was pointed out in the petition that there are 2039 unaided recognized private schools (1260 recognized by Directorate of Education (DoE), GNCTD and 779 recognized by MCD) and 258 aided recognized private schools (214 aided by DoE, GNCTD and 44 aided by MCD) in Delhi and most of them do not have the provisions of basic physical as well as academic infrastructure, including Special Educators as required for the education of the children with disabilities; These schools also did not provide barrier free infrastructure to the children with disabilities. This violated Right of Children to Free and Compulsory Education (RTE) Act, 2009 of such children as guaranteed under Articles 14,15,21, 21-A & 38 of the Constitution of India as well as contrary to the provisions of Delhi School Education Act, 1973, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, U.N. Convention on Rights of Child (1989) and U.N. Convention on Rights of Persons with Disabilities (2006).

The bench of Hon'ble Acting Chief Justice and Hon'ble Mr. Justice Rajiv Sahai Endlaw while hearing the petition W.P.(C) No.4618/2011 titled  Social Jurist, A civil rights group versus Govt. of NCT of Delhi directed all recognised, aided and unaided private schools in Delhi to appoint special educators and to make their buildings/school premises barrier-free for children with disabilities. The Director of Education has been directed to ensure that the Court Orders were followed and to de-recognise any school that has not made its premises disabled-friendly.

The court has now granted time up until March 31, 2013, to the schools to make their premises barrier-free and to appoint special educators with the next two years.

“Schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for special educators...no school shall refuse admission to children with disability for the reason of not employing special educators or not providing barrier-free access on the school premises,” the court order says.

The court has also clarified that the capital expenditure on making the school building and premises barrier free so as to allow free movement to children with disability has to be incurred by the schools from their own coffers and is not reimbursable by the Government as Section 19 of the RTE Act requires all schools, as a condition for their recognition, to provide a barrier free access in their buildings.

The Court ordered that the schools where children with special needs are already admitted or will be admitted hereafter shall immediately make provision for Special Educators and further ordain that no school shall refuse admission to children with disability for the reason of not employing Special Educators or not providing barrier free access in the school premises. 

It may be pertinent to mention here that earlier a Division Bench of the Delhi High Court in matter Social Jurist, A Civil Rights Group Vs. Govt. of NCT of Delhi 163 (2009) DLT 489 had directed the GNCTD as well schools run by local bodies namely NDMC, MCD and Cantonment Board to ensure that each school shall have at least two special educators and that necessary teaching aids and reading materials are provided to children with disability. However, this did not cover the Private schools.

Those who want to go through the detailed order, Click here. W.P.(C) No.4618/2011

Media Coverage

Indian Express-  Make pvt schools barrier free for disabled: HC 

regards

Adv Subhash Vashishth

Railways submits Scheme for Online Concessional Rail Ticket booking for persons with Disabilities to Delhi HC [Judgement Included]

Dear Readers,

The present case challenged the discriminatory policy of Indian Railways that denied the persons with disabilities right to book railway tickets online while the same service is readily provided to other persons. Case was successfully fought by Mr. Pankaj Sinha, an advocate with visual impairment with Human Rights Law Network.

The petition pointed out that whereas senior citizens could book their railway tickets at concessional rate on the internet as mentioned in the policy, persons with disabilities could not avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centers.

Petition challenged the existing rules of Indian Railways and sought parity in extension of benefits that are currently available to senior citizens. The lawyer for the petitioner argued that denying such benefits violates Article 14 of the Constitution of India and also contravenes the provisions contained in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as well as the decision in Satyawati Sharma v. Union of India, AIR 2008 SC 3148.

Respondents argued that if such a service were offered, it would be abused.  It is pertinent to mention that the Railway Administration has already issued a warning  that if a concession certificate is obtained without meeting the required parameters, an enquiry can be launched as to how the person obtained that ticket. Additionally, the original documents that substantiate the plea of disability are required to be produced upon examination.

The policy for online ticket booking of senior citizens said- "In case of tickets booked through internet no concession is permitted except senior citizen."

Thus, as per this impugned policy, a person with disability was not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

In response to the petition, the Railway Board, Ministry of Railways, Government of India were forced to prepare broad outline as under :-

• A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility. • The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities. • This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms. • The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification. • A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

Subsequently, the Govt. of India has earmarked suitable budget for implementing the above scheme. 

Judgement dated 12 Sep 2012 in W.P.(C) 2145 OF 2011 titled Praveen Kumar G vs Union Of India and Ors. 

Text of the Judgement

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 2145 OF 2011

 Judgments Reserved on:22.8.2012

 Judgment Delivered on:12.09.2012

PRAVEEN KUMAR G                                    . . . PETITIONER

Through : Mr. Pankaj Sinha, Advocate.

                                 VERSUS

UNION OF INDIA and ORS.                               ... RESPONDENTS

Through: Mr. Rajeeve Mehra, ASG with Mr. R.V. Sinha, Mr. R.N. Sinha, Mr. Ashish Virmani, Advocates for UOI.

CORAM :-

HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW A.K. SIKRI, ACTING CHIEF JUSTICE:

1. This petition filed in public interest by a blind person alleges, in this petition the discrimination between disabled persons and senior citizens in the Policy of IRCTC which provides facilities and services for issuing the railway ticket on internet, or at the reservation counters. It is pointed out that whereas senior citizens can book their railway tickets at concessional rate on the internet as mentioned in the policy, disabled persons cannot avail the same. Therefore, they are left with no other option but to get their railway ticket booked from the designated ticket counters at various railway stations and reservation centres.

2. The policy of senior citizens is as under:-

"In case of tickets booked through internet no concession is permitted except senior citizen." Thus, a person with disability is not entitled to avail the concessional facility in case the tickets are booked through internet, which is otherwise available to him if he/she buys from the designated ticket counters at various railway stations.

3. The petitioner filed an application under Right to Information Act, 2005 to the Public Information Officer of the Indian Catering and Tourism Corporation limited on 18.9.2009 seeking information for travel concessions for completely blind persons on the website of IRCTC. The said application was replied by the IRCTC on 12.10.2009 stating that the travel concessions for blind persons for online ticket booking is a policy matter and needs to taken up by the Ministry. Hence, IRCTC shirked off its responsibility from this vital issue and no initiative was taken by the same regarding introducing the system of online ticket booking at concessional rate. The petitioner filed a representation to the Railway Board dated 3.6.2010 requesting the facility of concessional booking of tickets on IRCTC to be extended to the handicaps as is already done for the senior citizens. The said representation was replied by the Railway Board on 13.9.2010 stating that the concessional booking of ticket on IRCTC website has been extended where the physical document is not required to be submitted in advance as it might lead to misuse of the electronic reservation slip and hence, handicaps are not allowed to do the same. It is submitted that no effort has been made by the Ministry of railway to make the policy disabled friendly and have arbitrarily denied the facility to them. The Policy of IRCTC was formulated to provide as a feature to the public at large. Later, the internet ticket booking facility was introduced at concessional rates for the senior citizens. The said policy is formulated and issued by the Railway Board, which is under the Ministry of Railway. Thus, the said policy is exclusively for the public at large and the same is highlighted as the sole Eligibility Criteria on the website of the said department except the senior citizens, who are entitled for ticket booking through internet at concessional rate.

4. The submission of the petitioner is that the persons with disability cannot access this concession facility though provided to senior citizen and, therefore, it amounts to discrimination qua the disabled persons. With this, though the concessional facility is required, it cannot be effectively availed. It is submitted that the system of online ticket booking helps to save time and resources and also help the public at large to avoid long queue at the reservation counter. The said system has also helped the system of ticket booking more accessible and easy to handle. In this context it would be pertinent to mention that such a system for ticket booking would be magnanimously useful and beneficial for the persons with disability for whom the reservation counter in most of the occasions is inaccessible. The petitioner therefore calls for amendment to the Policy.

5. Notice in this petition was issued. Initially, the respondent filed the counter affidavit contesting the petition, pointing out the difficulties which may face by introducing this facility for disabled persons as well. The main apprehension of the Railways is that it may lead to misuse. Since it is a matter in public interest and not adversarial in nature and the intention was to find a solution, when it came up for argument on 21.12.2012, Mr. Chandhiok, learned ASG took time to enable the respondent to have a re-look in the matter and to find a solution as to who the facility of online ticketing with concession could be available, at the same time, scheme be devised that it prevents any misuse. Thereafter, the Railway Board, Ministry of Railway, Government of India prepared broad outline and placed before us. These are as under:-

• A unique Photo Identify Card would be issued by the concerned Zonal Railways to those physically challenged be as per the extant eligibility criteria subject to verification of proper supporting documentation. Issue of the said ID card will be a one-time activity, subject to re-validation from time to time, on the basis of which physically challenged will have access to e-ticket facility.
• The card will be valid for a specified period and thereafter can be renewed subject to verification/completion of the necessary procedural formalities.
• This card will contain a Unique-ID which will be used by the physically challenged for undertaking concessional booking through the internet. The details of the physically challenged who have been issued unique-id Cards will be stored in the PRS database and details can be verified at the time of internet-booking. Any fake ID Cards/false declarations can be verified and the particular Card suspended if the details a provided are not genuine/or as per prescribed norms.
• The Card will have to be carried during journey and produced for verification during on-Board/Off-Board verification.
• A Pilot based on the above outlines will be initially implemented as a pilot project for a period of one year. After six months a review will be undertaken to assess the performance and make modifications/system improvements if any, based on the feedback/learning outcomes.

6. The petitioner has filed response to the aforesaid Draft Scheme dated 3.8.2012. Attempt is made to show that there can be a better system, as suggested by the petitioner, without any misuse. Since it is for the Government to devise the procedure and system and it is making endeavour in this behalf, we direct the respondents to take into consideration the suggestions given by the petitioner in its response dated 30.8.2012 and on that basis, further amendments in this scheme that may be feasible can be carried out. Mr. Rajeeve Mehra, learned ASG appearing for the Government submitted that there is always scope for improvement and these suggestions will be taken into consideration. The Railway Board can deliberate on these suggestions and come out with further recommendations if so required in the Draft Scheme suggested by it. If the petitioner still feels aggrieved, he is given liberty to approach again.

7. Writ petition stands disposed with these directions.

ACTING CHIEF JUSTICE                                                     (RAJIV SAHAI ENDLAW)
                                                                                                  JUDGE
SEPTEMBER 12, 2012