US Supreme Court ready to hear the land mark case on supporting Education for Disabled Students

Pls refer to my earlier post on  20 October 2016 titled 'US Supreme Court to hear ground breaking case involving what is "appropriate education" for students with Autism in public schools' . The Justices are hearing the arguments in the case wherein a school district refused to pay for private school for a student with autism whether federal law (IDEA) requires public schools to provide anything more than minimal instruction to such children.

A law dating from 1975, now called the Individuals with Disabilities Education Act, subsidizes special education but also requires school districts to provide a “free appropriate public education” to disabled students. Congress didn’t specify what it meant by appropriate, and when parents have challenged public school programs as inadequate—often because they want the district to pay for a private institution instead—appellate courts have disagreed over the quality of education the law mandates.

The Supreme Court agreed to resolve the issue in a case from Douglas County, Colo., where the school district rejected a parental request to pay $40,000 tuition to send an autistic child to a private school offering specialized programs.

Neal Katyal, an attorney for the school district, told the court as long as the public school program was better than nothing, courts had little role beyond reviewing whether local officials followed procedures that the law, known as the IDEA Act, lays out for a disabled student’s educational plan.

“That’s what Congress had in mind, the idea that you’ve got to go through the checklist,” Mr. Katyal said.

“That’s wrong,” said Justice Elena Kagan. “This is not just a procedural guarantee. Yes, the IDEA has lots of procedures in it, but they’re all geared towards a particular substantive result.”

The justices likewise felt Jeffrey Fisher, a Stanford law professor representing the child, identified as Endrew F. in court papers, pushed too far in contending the law mandated that disabled students receive “equal educational opportunity” with other students.

Such a high standard could invite numerous claims forcing courts to evaluate whether a plan for a disabled child was legally equal to the opportunities provided other students, said Justice Stephen Breyer. “I foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things that are extraneous. That is what’s actually bothering me,” he said.

Much of the argument concerned the meaning of a 1982 Supreme Court precedent upholding a school district’s refusal to provide a sign-language interpreter for a deaf student because she was progressing well using a hearing aid. In that case, Board of Education v. Rowley, the court cited a congressional purpose “to confer some educational benefit upon the handicapped child.”

Responding to Mr. Katyal, Chief Justice John Roberts summarized the disagreement this way:

“You’re reading it as saying ‘SOME benefit,’ and the other side is reading it as saying ‘some BENEFIT,’” the chief justice said, prompting laughter across the courtroom.

The Obama administration has proposed a compromise position, and by the argument’s end it appeared likely to prevail.

The law should be read to require “significant progress towards grade-level standards, not as close as possible to grade-level standards,” Justice Department lawyer Irv Gornstein told the court. “And we think that this is just what most school boards are already doing.”

Justice Samuel Alito asked whether school officials could consider costs in determining an appropriate program.

Probably not, said Mr. Gornstein, who noted that the federal government provides about 15% of special-education costs.

“I think Congress took costs off the table in the usual case,” Mr. Gornstein said, except in extreme cases where extraordinary costs would yield little benefit to the student.

A decision in the case, Endrew F. v. Douglas County School District, is expected before July.

Source: The Wall Street Journal 

Chattisgarh High Court | CG State & its HC fail candidates with disabilities; State Administrative Services exempted from purview of Section 33 of Disability Act 1995 [Judgement Included]

Dear Colleagues,

We are increasingly coming across cases where Court judgements are failing the persons with disabilities! Despite commenting  in the judgement that the State action defeats the objective of Persons with Disabilities Act 1995 and cornering the State for its inaction/ omission, the judgements fail to render effective justice in favour of persons with disabilities.

I can cite several such cases that I have come across recently. But here we are discussing a most recent judgement from Chhattisgarh High Court, where a 100% blind candidate, who cleared Public Service Commission (PSC) Exam and got appointment as a Tahsildar, approached the high court seeking a direction to the state to grant upper age relaxation up to 10 years and to reserve vacancies not less than 3% for persons or class of persons with disability as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for the post of Dy. Collector. The State defended saying that the benefit of age relaxation of 10 years was only available to Class-III and Class-IV posts as per the circular dated 12-2-1981 and not in Gp I and II. 

Also the State had already taken a retrograde step by issuing a notification dated 7-9- 2006 in accordance with the proviso to Section 33 of the Act of 1995 exempting the cadre posts of State Administrative Services from the operation of Section 33 of the Act of 1995 meaning thereby that there will be no reservation in  the cadre of State Administrative Service under section 33 of the Disabilities Act of 1995 in favour of persons with blindness or low vision, hearing impairment, locomotor disability or cerebral palsy.

It would be pertinent to mention that while the cadre posts of administrative services have been identified as suitable to be held by persons with blindness and low vision among others by the Centre and several blind candidates are successfully working as IAS officers under the Union of India, while a state under Union of India called Chhatisgarh decides that disabled people can not function as administrative officers. 

Who gives the state (read bureaucrats) to pass judgement on the capability of blind administrative officers and decide to exempt the post from the purview of section 33. The action smacks of arbitrariness and discrimination on the grounds of disability and must have been quashed by the judiciary.

The Court instead of quashing the notification being in contravention of Article 14 of the Constitution of India and giving relief to the candidate, dismissed the writ petition itself, saying that in light of the notification it can not give the petitioner any relief.

The judgement though reminded the State that the very object and purpose of the Disability Act 1995 is defeated if no reservation is provided for persons with disabilities in the cadre of State Administrative Service. And it directed the Chhatisgarh government to "reconsider" its notification which exempts the State Administrative Service from the requirement of providing reservation to the persons with disabilities preferably before the next notification  for examination for the posts are issued.

This direction/ judgement  literally fails the petitioner and is a joke played on "Right to Equality" enshrined in the Constitution of India. State is a perpetrator of injustice in this classic case and guilty of defying the constitutional mandate and the international commitments made by India to the international comity of nations by signing and ratifying the UN Convention on the Rights of Persons with Disabilities.

Now mere direction to "reconsider" is no direction as the State could always defend its action saying it did consider as per the court direction but did not find it proper to give reservation in jobs to people with disabilities in State Administrative Services! Such an action or inaction of the State would never come under the meaning of "contempt of court"!

Road Ahead

The Chief Minister of Chhattisgarh Dr. Raman Singh, is a pro-development leader. The Prime Minister of India, Sh. Narendra Modi ji has been batting for the rights of persons with disabilities and has made his commitment public by ensuring that despite road blocks in the winter session, the Rights of Persons with Disabilities Act 2016 was passed by both houses of parliament & got assent of the President of India on 27th Dec 2016 to be eventually notified on 28th December 2016. Its the time to act swiftly and restore justice to the candidate in this session itself & providing enabling environment to promising candidate with disabilities so that the fabric of the state administrative services gets stronger & richer by contributions of this diversity.

We call upon the Hon'ble Chief Minister Sh. Raman Singh to act now and walk the talk - Sabka Saath Sabka Vikaas - by withdrawing the exemption notification & appointing the blind candidate on the post of Tehsildar forthwith.

Download Judgement Copy

• Judgement dated 02 Jan 2017 of the Chhattisgarh High Court in Writ Petition (S) No. 640 of 2014 titled Sanjay Sondhi Vs. State of Chhattisgarh and Ors
• Or read directly in the embedded order below:

Delhi University gets another rap from Delhi High Court - Fined for defying Section 39 of Disabilities Act 1995 [Judgement Included]

Dear colleagues,

Delhi University was caught on the wrong side of the law once again for defying the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995. The Hon'ble Delhi High Court in the instant case W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors., has directed the Delhi University to grant admission to the petitioner - a candidate with 77% disability, while declaring the admission criteria adopted by the University as "unsustainable".

In the instant case, the petitioner had sought a direction to the University to grant him admission under the PWD (Persons with disability) category in the Ph.D programme of Department of Buddhist Studies University of Delhi. The petitioner was one among the 47 students who had cleared the written examination and were called for the interview. He was the only student under the PWD category to have qualified for the same. Post interview, only twenty candidates were declared successful. However, arbitrarily no admission was granted under the PWD category. Aggrieved by the unreasonable & arbitrary denial of admission, the petitioner made representations before various authorities viz. the DU Vice-Chancellor, OSD (Admissions and Research Council) and also the Dean of the Faculty of Arts and Head of Department of Buddhist Studies, but it failed to yield any result.

The petitioner left with no option approached the High Court, alleging discrimination on the ground that other candidates who had secured similar marks in the interview were granted admission under other categories. He submitted that the University could not have frustrated the provisions of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates all Government educational institutions and other educational institutions receiving aid from the Government to reserve not less than three per cent seats for persons with disabilities. He had further contended that the minimum cut off marks could not have been fixed after the selection process had begun, as was the situation in the case at hand. The question then to be considered by the Court was then whether the cut off marks of 70, as prescribed by the Selection Committee, was justified. Accepting the contentions put forth by the petitioner, it ruled that fixing of 70 marks as the cut off for the PWD category was “without any basis/logic.”

Noting that seats in the Ph.D course were still available, and that the selection process was still going on, the Hon'ble Judge directed the University to grant admission to the petitioner, and also awarded costs to the tune of Rs. 10,000. 

To read the Court Judgement dated 14 December 2016 click below:

W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors.

RPWD Bill 2016 & the Right to Reservation in Promotion for Employees with Disabilities

Dear Colleagues,

Please refer to my earlier post dated July 1, 2016 titled 'Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C and D alike'. Subsequently on 15th Dec 2016, the Hon'ble Supreme Court rejected the Review Petition filed by the DoPT against the judgement thereby making the its said judgement final.

Meanwhile, the Rights of Persons with Disabilities Bill 2016 has been passed by the Rajya Sabha (14 Dec 2016) and the Lok Sabha (16 Dec 2016) with over 119 amendment in the 2014 bill. Let me come straight to the concerned section dealing with the employment. I reproduce the concerned sections from 1995 Act and 2016 Bill below which clarifies things:

Extracts from PWD Act of 1995

32. Appropriate Governments shall--
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-
(i) Blindness or low vision;
(ii) Bearing impairment;
(iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: 
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.'

Extract from RPWD Bill 2016

'33. The appropriate Government shall—

(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

(iii) undertake periodic review of the identified posts at an interval not exceeding three years

34. (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including 35 deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.'

The problem areas

The interpretation of this section 33 of the Act of 1995 meant that reservation in promotion was available to employees with disabilities in all groups i.e. ABC& D as held by Hon’ble Supreme Court on 09 Oct 2013 in 'Union of India Vs. National Federation of Blind' wherein court directed Govt. of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts as was being done for Gp C & D earlier. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act 1995, provided for reservation in promotion for persons with disabilities in Groups A and B also. Again in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others court held that reservation in promotion has to be given in Gp A & B posts under section 33. 

Despite clear writing on the wall on the issue of reservation in promotion for persons with disabilities after the Supreme Court's clarification, the bill negates the judgement. It relegates the right to reservation in promotion to a provisio  where it is left to the appropriate governments to issue instructions from time to time! I would say this bill takes away reservation in promotion from the PwDs in a clandestine manner and leaves this to the mercy of the states who have never been serious about implementing the benevolent legislation.

A National Consultation on the RPWD Bill on 29-30 Dec 2016 in Delhi

The above is one example, there are host of others that we find are negating the rights of persons with disabilities and also these are not in conformity with the UNCRPD to which this Bill claims to align with. Lawyers, activists, persons with disabilities will put their mind to the Bill and analyse where its goes wrong and how can this be corrected to ensure that rights of persons with disabilities are not taken away under the garb of legislation. We invite you to this consultation that starts tomorrow. For more details please visit the page 'Invitation for National Consultation on RPWD Bill 2016 on 29-30 Dec 2016 at New Delhi'  

Will look forward to meeting and interacting with many of you tomorrow & day after.

Hyderabad HC Permits Blind Advocate To Take Judicial Service Exam pending his Writ Petition

Dear Colleagues,

Please refer to my earlier posts titled "Can a Blind /Visually Impaired Person work as a Judge / Magistrate ?"  dated 01 Jun 2009, "Want to become Judge? An ideal opportunity for VH law graduates in Delhi" dated 29 Oct 2009, "First Blind Judge in Korea shows how blind persons can function as Judge successfully" dt 14 May 2012 & "Blind can write exam to become Judge, rules Spain's General Council of Judiciary"  dt 21 Jul 2014.

This time, Mr. Arepalli Naga Babu, a visually-challenged IDIA scholar from Machilipatnam in Andhra Pradesh, has yet again strengthened the well-known belief that the only disability in life is lack of will and fortitude. Acting on his petition, the Hyderabad High Court has directed the authorities to accept his application and permit him to write the Judicial Service Exam to be held on 27th of November 2016, which he was denied earlier. 

The court also directed that he be allowed to take the examination in a separate room with the assistance of a scribe and be granted 20 minutes extra for every hour to compensate for the disability. A division bench comprising Chief Justice Ramesh Ranganathan and Justice A. Shankar Narayana affirmed that he cannot be denied participation in the selection process under the open category merely on account of his handicap (blindness) and stated that ‘there does not appear to be any prohibition in the Andhra Pradesh State Judicial Service Rules 2007 prohibiting visually-challenged candidates from participating in the selection process for appointment to the posts in the AP State Judicial Service’. 

Naga Babu, a law graduate from National Law University, Odisha, and a practising advocate of the high court, said the exam notification issued for the Andhra Pradesh and Telangana Judicial Services Exam confined the benefit of reservation only to the orthopedically handicapped and excluded the visually impaired persons. He stated that after he applied for the exam, he was informed that his application would be rejected as he was not entitled to write the exam and is neither eligible for reservation as per the rules.

Read more at: http://www.livelaw.in/hyderabad-hc-permits-visually-challenged-idia-scholar-naga-babu-take-judicial-service-exam/

Right to Dignity - a Consititutional Right of the Female Disabled Employee will Prevail over Employer's Right to Take Work, says Kerala HC [Judgement Included]

Dear Colleagues,

Here is a classic case where the Indian Railways has been wasting the exchequer's money in unnecessary legal battle against a female disabled employee who was seeking protection under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of  Rights & Full Participation) Act 1995 since the year 2002.

Brief history

 

While serving in the Railways, in the year 1998, Ms. Fancy Babu suffered transverse myelopathy (inflammation of spinal cord) at D4 level, which eventually resulted in complete paralysis confining her to bed. In 2002, she proposed to retire voluntarily and the Indian Railways accepted it. In 2009, having come to know of the beneficial provisions of benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, the employee approached the Central Administrative Tribunal, Ernakulam Branch seeking reinstatement and extension of benefits under the Act in OA/49/2009. The Tribunal, allowed the original application, setting aside the order or retirement and directed the employee’s reinstatement with effect from 15.02.2002. But Railways went against it before the High Court in  WP(C) No. 15871 of 2010 [click here to read the judgement dt 25 Aug 2014], wherein the said order was confirmed by the High Court by dismissing the appeal preferred by the Railways. 

Facts leading to instant case

 

However, in the year 2015, Ms. Fancy Babu had to again approach CAT  & file MA No. 180 of 2015 under Rule 24 of the CAT (Procedure) Rules 1987 complaining that the Tribunal’s order, as has been confirmed by this Court, has not been implemented by the Indian Railways.  Ms. Babu cited Kunal Singh v. Union of India (2003) 4 SCC 524 and Bhagwan Dass and another v. Punjab State Electricity Board (2008) 1 SCC 579 on protections available to employees under Section 47 of the Act.

The Tribunal, treating it as a special case, held that the employee need not report to office to receive her salary and it directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. 

The Indian Railways again preferred an appeal  OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu, before the Kerala High Court against this order of the Tribunal.  The contention put forth by the Indian Railways was that that since it is in trust of public money; it would be against the public interest to let a person draw salary without her discharging any function—without even attending the office. On the part of employee, it was urged that, where an employee has been totally incapacitated and has been rendered immobile, it is inequitable and unconscionable to compel the employee to attend office, much less discharge functions. 

Dismissing the challenge against the CAT order, the division bench comprising Justices PR Ramachandra Menon and Dama Seshadri Naidu, observed: “Given the modesty of women, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowel incontinence: her modesty exposed and privacy invaded.” 

Strongly worded judgement authored by Justice Dama Seshadri Naidu discusses judicial recognition of human dignity in various countries. The bench also observed that employer’s insistence that she should physically mark her attendance daily in office violates her privacy. “The doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity,” the court held. “The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse,” the bench said. 

 Dismissing the appeal and upholding the CAT order, the bench remarked: “Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.”

Click here to read the judgement  dated 03 Oct 2016 in OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu passed by the Kerala High Court.

5% Marks Concession to Reserved Categories in TET is Creating Equal Level-Playing Field - Supreme Court [Judgement Included]

Dear Colleagues,

Hon'ble Supreme Court has reiterated that the preferential treatment or concessions granted to SC/ST, backward classes, persons with disabilities and de-notified communities is within the concept of equality and is in furtherance of the  constitutional obligation of the State to the under-privileged and to create an equal level-playing field.

In the instant case the 5% marks concessions granted by the Tamil Nadu State to the reserved categories in State Teachers Eligibility Tests conducted under the NCTE guidelines was under challenge. The division bench comprising Justice Siva Kirti Singh and Justice R Banumati was considering a batch of appeals on conflicting judgments from Principal and Madurai Bench of Madras High Court concerning appointment of secondary grade teachers and B.T. assistants in Tamil Nadu as per the guidelines prescribed by the National Council for Teacher Education (NCTE).

Hon'ble SC Bench observed that “The idea behind laying down NCTE guidelines for conducting TET was to bring about uniformity and certainty in the standards and quality of education being imparted to the students across the nation. However, at the same time the framers of the guidelines took note of the huge socioeconomic disparity existing in the nation and accordingly, by virtue of Clause No. 9 enabled the respective state governments/authorities to provide relaxation to the candidates belonging to socially backward classes.” 

Hon'ble Bench expressed that the Constitution   of   India   has   made   adequate   enabling   provisions empowering   the   State   to   promote   reservation/concessions.   Special provisions are made for advancement of the socially and economically backward classes.  These provisions will bring out the contents of equality of opportunity guaranteed under Articles 14, 15 (1), 16 (1) of the Constitution of India by creating equal level-playing field.  

Hon'ble Court made a reference to M. Nagaraj and Others vs. Union of India and Others  (2006) 8 SCC 212, wherein the Constitution Bench held as follows:-

“47. Equality of opportunity has two different and distinct concepts.  There is a conceptual distinction between a non-discrimination principle and affirmative   action   under   which   the   State   is   obliged   to   provide   a level-playing field to the oppressed classes.   Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups.   Both the conceptions constitute “equality of opportunity”.”

The Bench also made a reference to State of Madhya Pradesh and Anr. Vs. Kumari Nivedita Jain and Others (1981) 4 SCC 296 wherein it was eloquently stated that the grant of relaxation is for the upliftment of Scheduled Castes and Scheduled Tribes and other backward communities.  

The bench also indicated that in a similar case wherein Rajasthan High Court upheld the challenge to relaxation to reserved categories,  the Hon'ble SC had reversed the Rajasthan High Court judgement  in the matter titled  Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10 SCALE 163.

The bench held that such a provision is in line with the principles enshrined in the Constitution and state government cannot be faulted for discharging its constitutional obligation of upliftment of socially and economically backward communities by providing 5% relaxation to candidates belonging to scheduled caste, scheduled tribes, backward classes, most backward classes, de-notified communities and persons with disability (PWD). 

The bench also rejected the contention that the government has changed the rules of selection. “It is not the case where a basic eligibility criterion has been altered in the midst of the selection process.” “By granting relaxation of 5% marks in TET for reserved categories only, the eligibility criterion is neither altered nor is any prejudice caused to the appellants.”

The Hon'ble bench finally held that Madras High Court principal bench rightly rejected the challenge to G.O.(Ms.) No.25 dated 06.02.2014 and G.O.(Ms.) No. 71 dated 30.05.2014, holding that as per the NCTE guidelines, the state government has the power to grant relaxation on marks obtained in TET to candidates belonging to reserved category and the same is affirmed.

Read / Download the judgement 

Civil Appeal No. 10700/2016 titled V. Lavanya & Ors Vs. State of Tamil Nadu & Ors. [PDF 213KB]: 

Supreme Court of India | Civil Appeal No. 213 of 2013 | State of Punjab Vs. Jagjit Singh & Ors | Dated 26 Oct 2016

Equal Pay for Equal Work: Supreme Court Rejects Artificial Distinctions Between Temporary and Regular Employees

Supreme Court of India | Civil Appeal No. 213 of 2013 and connected matters | Judgment dated 26 October 2016

Appellants:       State of Punjab & Ors.   
Respondents:    Jagjit Singh & Ors.
Bench:              Hon'ble Justice Jagdish Singh Khehar
                          Hon'ble Justice S.A. Bobde)
Order Date:       26 October 2016
Status :              Reportable

Introduction

Can a government employee be paid substantially less merely because they are engaged as a daily-wage, casual, ad hoc or contractual worker, even though they perform the same duties and carry the same responsibilities as a regular employee?

In State of Punjab & Ors. v. Jagjit Singh & Ors., the Supreme Court answered this question firmly: a temporary employee performing the same work, with the same duties and responsibilities as a regular employee, cannot be denied the minimum of the regular pay-scale merely because of the temporary nature of the appointment. SC Judgement-213of2013-EqualPay…

The judgment, delivered by a Bench comprising Justice Jagdish Singh Khehar and Justice S.A. Bobde, is an important exposition of the constitutional principle of “equal pay for equal work”, particularly in the context of temporary employment.

The Issue Before the Court

The appeals arose from conflicting decisions of the Punjab and Haryana High Court concerning the entitlement of daily-wage and other temporary employees to the minimum of the regular pay-scale.

The employees included persons working as Pump Operators, Fitters, Helpers, Drivers, Plumbers, Chowkidars and others. The central question was whether temporary employees performing the same duties as regular employees against corresponding posts were entitled to the minimum of the regular pay-scale. SC Judgement-213of2013-EqualPay…

The Full Bench of the High Court had carved out limited exceptions under which temporary employees could receive the minimum of the regular pay-scale—for example, where they had been selected through a fair process against sanctioned posts, or where they had worked continuously for ten years. The Supreme Court found that this approach improperly mixed up the question of regularisation with the distinct question of pay parity. SC Judgement-213of2013-EqualPay…

What Does “Equal Pay for Equal Work” Mean?

The Supreme Court undertook an extensive review of its earlier decisions and distilled the principles governing equal pay for equal work.

Importantly, the Court clarified that designation alone is not decisive. What matters is the substance of the work.

Among the factors relevant for determining parity are:

• the nature and quality of duties;
• the responsibilities attached to the posts;
• the level of responsibility and reliability;
• the volume of work;
• the qualifications prescribed;
• the hierarchy of the posts;
• the nature of recruitment; and
• whether the duties are qualitatively and functionally comparable. SC Judgement-213of2013-EqualPay…

The onus of establishing parity lies on the person claiming equal pay. At the same time, the Court made clear that employees cannot be denied parity merely because they are working in a different department if their duties and responsibilities are otherwise identical. SC Judgement-213of2013-EqualPay…

Thus, “equal pay for equal work” is not a mechanical or mathematical formula. The comparison must be substantive and based on the actual nature of work.

Temporary Status Cannot Become a Reason for Lower Wages

One of the most significant aspects of the judgment is its treatment of temporary workers.

The Court reviewed several earlier cases where temporary employees had been granted parity with regular employees. It noted that the principle had already been applied to employees described variously as work-charge, daily-wage, casual, ad hoc and contractual employees. SC Judgement-213of2013-EqualPay…

The Court rejected the proposition that temporary employees could automatically be denied pay parity merely because they had not been appointed through the same process as regular employees.

The critical consideration is whether the employee is actually performing the same duties and responsibilities and possesses the qualifications required for the corresponding post.

Regularisation and Pay Parity Are Different Questions

The judgment draws an important distinction between two concepts which are often conflated:

Regularisation of employment and pay parity for work actually performed.

An employee may not have a right to be regularised simply because they have worked for a long period. But that does not automatically mean that the employer can pay them less for performing the same work as a regular employee.

The Supreme Court specifically found that the Full Bench of the Punjab and Haryana High Court had mixed the law relating to regularisation with the law relating to equal pay. SC Judgement-213of2013-EqualPay…

This distinction is particularly important in public employment, where temporary or contractual arrangements may continue for years.

The Constitutional Foundation

The Court traced the principle of equal pay for equal work to the Constitution, particularly the values embodied in Articles 14, 16 and 39(d).

The judgment also relied upon the Court's earlier decision in Randhir Singh v. Union of India, where equal pay for equal work was recognised as a constitutional principle flowing from the equality provisions.

The Court emphasised that the principle is not simply an administrative policy. It constitutes law declared by the Supreme Court under Article 141 of the Constitution. SC Judgement-213of2013-EqualPay…

The Court also referred to Article 7 of the International Covenant on Economic, Social and Cultural Rights, which recognises fair wages and equal remuneration for work of equal value. India ratified the Covenant in 1979. SC Judgement-213of2013-EqualPay…

Dignity of Labour

The judgment goes beyond technical questions of pay fixation.

The Supreme Court observed that creating artificial distinctions to deny the fruits of labour undermines human dignity. Where one person performs the same work as another but is compelled to accept a substantially lower wage, the Court viewed such inequality as potentially exploitative and coercive.

The Court linked fair remuneration with the dignity and self-worth of the worker and recognised that a person may accept lower wages not voluntarily, but because economic circumstances leave little real choice. SC Judgement-213of2013-EqualPay…

This makes the judgment particularly significant from a human rights perspective: remuneration is not merely a matter of service rules but can also implicate equality, dignity and freedom from exploitation.

What Did the Supreme Court Ultimately Hold?

The Court set aside the Full Bench judgment of the Punjab and Haryana High Court and affirmed the entitlement of the concerned temporary employees to the minimum of the pay-scale applicable to regular employees holding the same post, though the Court clarified the treatment of allowances. SC Judgement-213of2013-EqualPay…

In the particular batch before it, the factual position was decisive. The State itself acknowledged that:

• the temporary employees were working against posts also available in the regular establishment;
• temporary employees and regular employees were being assigned the same duties from time to time;
• the temporary employees possessed the qualifications prescribed for regular appointment; and
• there was no other applicable principle that would disentitle them to parity.

The Court therefore held that the principle of equal pay for equal work applied to them. SC Judgement-213of2013-EqualPay…

Consequently, the Court held:

Temporary employees performing the same work as regular employees are entitled to wages at the minimum of the regular pay-scale applicable to the corresponding post. SC Judgement-213of2013-EqualPay…

Why Does the Judgment Matter?

Jagjit Singh is an important reminder that employment status cannot, by itself, determine the value of labour.

The judgment does not say that every temporary employee is automatically entitled to the pay-scale of a regular employee. The employee must establish the requisite parity in duties, responsibilities, qualifications and other relevant factors.

But once such parity is established, the employer cannot create an artificial distinction merely by labelling one employee “temporary” and another “regular”.

For workers in the public sector, therefore, the judgment provides an important constitutional safeguard against unequal remuneration for substantially identical work.

A Disability Rights Perspective

Although the judgment does not concern disability rights or a claim under the Rights of Persons with Disabilities Act, 2016, its reasoning has wider relevance to equality in employment.

For persons with disabilities, employment discrimination can sometimes operate through apparently neutral classifications—such as the nature of appointment, category of engagement, contractual status or job classification. Jagjit Singh reinforces the broader constitutional proposition that formal labels cannot substitute for an examination of the actual work, responsibilities and circumstances of the employee.

However, this should not be read as creating a disability-specific rule from Jagjit Singh. Its direct holding concerns pay parity between temporary and regular employees performing comparable work.

Conclusion

State of Punjab v. Jagjit Singh strengthens the constitutional commitment to equal pay for equal work by rejecting artificial distinctions that result in workers being paid less despite performing the same duties and carrying the same responsibilities.

The judgment is ultimately about more than salary. It is about equality, dignity of labour and protection against exploitation.

Where the work is genuinely equal, the Court's message is clear: the temporary label cannot become a licence to pay less.

Read the Judgement in Civil Appeal No. 213 of 2013

US Supreme Court to hear ground breaking case involving what is "appropriate education" for students with Autism in public schools

Dear Colleagues,

The origins of this potentially lank mark case stretch back to 2010 when the parents of a child with autism in Douglas County of USA had to withdraw their child from "Summit View Elementary" -  a public school  after the child (now 17) began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. The parents having been convinced the school wasn’t doing enough to help their son with autism progress academically, pulled the child out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

The parents have argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA (Individuals with Disabilities Education Act) was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the "appropriate standard" to be used to assess the proper level of educational benefit a disabled student should get. The petition of the parents argues that this case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA.

It is pertinent to note that the U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education Versus Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

Even in India, we have been facing this issue of what is 'appropriate education' for children with disabilities, particularly those with intellectual and developmental disabilities. While the government schools in India are woefully ill-equipped in absence of trained educators, lack of teaching learning material in the schools given the large number of students. The situation is equally grim in the private schools as well who charge a considerable amount in the name of tuition fee and other counts, however, have made the education of disabled children an affair to be managed by Shadow Teachers (paid by parents). In the name of inclusion, children do remain in the school but there is hardly an effort to include them in the classroom or the learning outcomes. Children with disabilities are also not included in play or extra-curricular activities. This is surely not inclusion. This is a clear violation of the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and in particular Section 30 of the Act.

Entire world will be watching this case with great curiosity as to what Supreme Court of USA decides. But one thing is sure, Supreme Court had made up its mind to speak its mind on the issue and likely to grant Certiorari to the parents. This case is truly about equal opportunity for the special needs children that the law requires. And this is likely to help realize inclusive education as enshrined in the IDEA.

Brief about IDEA 

The Individuals with Disabilities Education Act (IDEA) is a four-part (A-D) piece of American legislation that ensures students with a disability are provided with Free Appropriate Public Education (FAPE) that is tailored to their individual needs. IDEA was previously known as the Education for All Handicapped Children Act (EHA) from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142). Overall, the goal of IDEA is to provide children with disabilities the same opportunity for education as those students who do not have a disability.

IDEA is composed of four parts, the main two being part A and part B.[1] Part A covers the general provisions of the law, Part B covers assistance for education of all children with disabilities, Part C covers infants and toddlers with disabilities which includes children from birth to age three, and Part D is the national support programs administered at the federal level. Each part of the law has remained largely the same since the original enactment in 1975.

In practice, IDEA is composed of six main elements that illuminate its main points. These six elements are: Individualized Education Program (IEP), Free and Appropriate Public Education (FAPE), Least Restrictive Environment (LRE), Appropriate Evaluation, Parent and Teacher Participation, and Procedural Safeguards. To go along with those six main elements there are also a few other important components that tie into IDEA: Confidentiality of Information, Transition Services, and Discipline. Throughout the years of IDEA being reauthorized these components have become key concepts when learning about IDEA.

Here is the coverage in Denver on the issue

U.S. Supreme Court will hear Douglas County student with disabilities case

Origins of potentially landmark case stretch back to 2010

The U.S. Supreme Court announced Thursday that it will hear a potentially groundbreaking case brought by a Douglas County couple who claim that their autistic son was not provided an adequate education in the public school system as required by federal law.

The high court’s ruling on the case, which likely wouldn’t come down until next year, could have substantial implications for students with disabilities across the country in terms of the standard school districts will be required to meet when providing instruction and services. At issue is whether schools must provide an education equal to other students.

The family, whose last name is not used in court documents, told The Denver Post on Thursday that they were “shell-shocked and giddy” about the decision by the Supreme Court to grant certiorari to their case, which has dragged on for half a dozen years.

“It’s about equal opportunity for special-needs kids that the law requires,” said Joe F., father of Endrew F., whose name anchors the Endrew F. v. Douglas County School District case file. “If we can change any families’ lives, that’s our goal.”

The district released a statement on the high court’s decision late Thursday.

“It would be inappropriate to discuss the specifics of the case while it is still being litigated, but the Court’s decision today is not a decision on the merits, and we look forward to addressing the issues before the Court,” district spokeswoman Paula Hans said.

The roots of the case go back to 2010, when the Highlands Ranch couple pulled Endrew, now 17, out of Summit View Elementary after he began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. Convinced the school wasn’t doing enough to help their son progress academically, the couple pulled him out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

“If he was able to show up to school and say ‘good morning,’ that was good enough for them,” Joe F. said of the Douglas County School District. “They weren’t moving his education forward.”

The family has asked that their last name not be used.

The parents, who said their son has made progress in his learning since attending Firefly, asked the district to reimburse them for the tuition they paid for Endrew’s private schooling. They claimed that the Douglas County School District did not do enough to provide their son with a “free appropriate public education” as required by the 1975 Individuals with Disabilities Education Act (IDEA).

But an administrative law judge, a federal judge and the 10th U.S. Circuit Court of Appeals backed the district, claiming in separate rulings that the federal statute only requires that schools provide students with “some educational benefit,” a standard they determined Douglas County had met with Endrew.

The family argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the appropriate standard to be used to assess the proper level of educational benefit a disabled student should get.

“This case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA,” their petition argued.

The U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education v. Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

The family received a boost last month when the Office of the Solicitor General filed an amicus brief urging the Supreme Court to take up the case. It said that the 10th U.S. Circuit Court of Appeals had set the bar — a standard of “merely … more than de minimis” educational benefit — too low.

“No parent or educator in America would say that a child has received an ‘appropriate’ or a ‘specially suitable’ or ‘proper’ education ‘in the circumstances’ when all the child has received are benefits that are barely more than trivial,” the solicitor general’s office wrote.

But Kathleen Sullivan, chief counsel for the Colorado Association of School Boards, said it would be better for Congress to clarify its statutes than for the court to impose an order. A uniform standard handed down by the Supreme Court would prove “disruptive” to what is today an individually tailored analysis and decision between educators, parents and students, she said.

“The disruption is in shoving aside more than 30 years of case law that we have in helping us understand what the IDEA means for students,” Sullivan said. “I think we would see a wave of litigation to define and apply that new standard.”

The district, in a brief it filed earlier this month urging the Supreme Court not to take up the case, argued that in passing the IDEA, Congress guaranteed access to public education for students with disabilities but did not specify what the level of that education should be.

“Thus, for over 30 years, this Court has held that if a State provides a program ‘reasonably calculated to enable the child to receive educational benefits,’ then it ‘has complied with the obligations imposed by Congress and the courts can require no more,’ ” the brief argued.

But Jack Robinson, an attorney for Endrew F.’s family, said one of the IDEA’s stated goals is readying a student with disabilities for the workforce or independent living, something that can’t be achieved with a minimal education offering.

“There has to be a more heightened and robust standard than a little more than nothing,” Robinson said. “This case has the potential of recognizing that children with disabilities have a right to a substantive education.”

Source : Denverpost 

Note: This post is also reproduced on " Subhash Vashishth's Blog"

Disabled Soldiers & Politics of their Disability Pension

Dear Colleagues,

Here is a wonderful article by  Maj Navdeep Singh, a veteran and a fellow lawyer at Punjab and Haryana High Court. In this connection, you may also refer to  my earlier post dt. 26 Feb 2014 "DESW works against Ex-Servicemen disabled during service are worst hit".

Questions of compensation

India has the distinction of exhibiting disdain towards the cause of disabled soldiers

India is quite a paradox. There is excessive chest-thumping for our men and women in uniform on the one hand and pride in laying constant siege to the benefits and legal rights of those very personnel whom we superficially cheer while on parades on the other.

And bearing the brunt of this all are our disabled soldiers. The deleterious effect the stress and strain of military service has on a soldier’s health is a universally recognised phenomenon. In fact, most nations go out of the way to make the lives of their troops more comfortable — as seen in rising payouts for their loss of health. However, India has the distinction of exhibiting utter disdain towards the cause of disabled soldiers. At a very rudimentary level, for example, one has defence services accountants asking how ailments such as heart disease, neurosis, backache, seizures — common in civilians too — can be affected or aggravated by military service.

The service-disability connection

It is not difficult to discern that a highly unsettled and regimented life, away from family most of the year, and at times under the shadow of the gun, the inability to cope with domestic commitments, and a lack of community living, sexual fulfilment and physical proximity, curtailed freedoms and rights, can all lead to an aggravation of common medical conditions. The life of military personnel or even paramilitary troopers who are on duty almost 24 hours a day and who require permission to use even a washroom or visit a market after signing multiple registers, cannot be compared with civilians who live with their families and have fixed and reasonable working hours in a week.

Disability rules in India and other democracies are balanced and work on the presumption of a military service-disability connection. But the army of accountants and financial wizards often rejects such disability claims leading to numerous instances of judicial intervention. When disability benefits are awarded by courts and tribunals, there is more shock in store. The Ministry of Defence appeals against the claims of disabled, at times over amounts as little as a few hundred rupees. Between 2012-2013, 90 per cent of all appeals filed in the Supreme Court by the Ministry of Defence were against disabled soldiers. The efforts of the Defence Minister to control the litigation malaise are being met with strong resistance from the official-legal ecosystem which thrives on the miseries of disabled soldiers.

Paring pension rates

A recent example was the recommendation made in the Seventh Central Pay Commission to slash disability pension rates. The observation was that as there was an increase in the percentage of disabled officers in the defence services vis-à-vis the lower ranks, benefits needed to be slashed from the “percentage of pay system” to a “slab system” which would be more equitable for ranks other than officers. The recommendation was that from the current formula of “30% of pay for 100% disability”, the disability element should now be granted at the fixed rate of Rs. 27,000, Rs.17,000 and Rs.12,000 for Commissioned Officers, Junior Commissioned Officers and Other Ranks respectively for 100 per cent disability, and proportionately reduced for lesser disability. Surprisingly, no such corresponding “equitable” change was recommended for civilian disability pensioners, including those from the Central Armed Police Forces, who continue to receive benefits on the basis of “percentage of pay”.

Statistically, there is a higher probability of officers incurring disability than jawans since the latter start retiring in their 30s after about 15-plus years of service. Officers retire in their 50s after a service period spanning 30 years or more. It shocks one that those who are maimed and infirm have to bear insults when instead there should be concern about the rise in stress and strain and a deteriorating health profile among defence personnel.

The recommendation was made suo motu based on data by the Defence Accounts Department to the commission and without being authenticated by the defence services. No opportunity was granted to discuss the issue. The accounting jugglery is even more jarring since the slab system would result in a better payout only to those rare cases where those in the lower ranks are medically boarded out at the start of their careers, while it results in a loss to all jawans who are released on completion of regular service terms. In the higher ranks, the difference is more glaring. A Lieutenant General who is 100 per cent disabled and drawing a disability element of Rs.52,560 as of December 31, 2015, would now get Rs.27,000 on January 1, 2016. His civilian counterpart, on a par earlier, would now get Rs.67,500. While the pay commission has handsomely increased all pensions, which includes civil disability, it has slashed those for military disability; in some instances by more than half. The fact that vested interests have twisted the issue on social media citing ‘government sources’ makes this even more unfortunate.

What is the use of all the pomp and show at military displays or basking in the glory of our military achievements if we cannot take care of our disabled soldiers? They may form a minuscule percentage, but they certainly deserve much better.

About Major Navdeep Singh - Major Singh is a veteran and an advocate at the Punjab and Haryana High Court. He was the founding President of the Armed Forces Tribunal Bar Association, Chandigarh., and is Member of the International Society for Military Law and the Law of War at Brussels

Source: The Hindu