Calcutta HC: RPwD Act shifts focus from protection to empowerment [Judgement Included]

High Court: Calcutta HC

Bench/ Judge:  Justice Moushumi Bhattacharya

Case Title: WPA 6043 of 2022, Dr. Arun Sarkar Vs. The State of West Bengal & Ors. 

Date of Judgement/Order: 08 August 2022

The Calcutta High Court  quashed a resolution passed by the Governing Body of a College refusing to consider a person with physical impairment for appointment in the disability category, finding it to be in violation of the Right of Persons with Disabilities Act, 2016.

The court observed that the 2016 Act which replaced the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to empower persons with disability rather than protect them. The Single Judge also made significant observations on the nature of the 1995 Act and the 2016 Act, adding that in the 2016 Act, the canvas was more about effective integration of persons with disability and less about recognition of a physical condition as a limiting factor.

"The 2016 Act is a declaration of rights and opportunities to persons with disability. While the idea of freedom from the physical limitations germinated in the 1995 Act, in 2016 the focus shifts from protection of persons with disability to empowerment; recognition of limitations to removing barriers; the right to participation to affirmative action. In essence, the statute facilitates the movement of the community from the margins to the mainstream of opportunities.", the court observed.

The petitioner was a  person with benchmark disability with a 80% disability as a result of the amputation of his upper limbs following an accident. He served as the Assistant Professor at Kandi Raj College for seven years and thereafter sought an appointment in a college nearer to his residence finding it difficult to travel 480 km on a daily basis. He was soon recommended by the West Bengal College Service Commission for an appointment at the Acharya Girish Chandra Bose College in the Disability category. However, the Governing Body of the College passed a resolution asking the Commission to reconsider its recommendation of the petitioner as a candidate.

Aggrieved by this, the petitioner filed a petition before the High Court which came to be dismissed by a Single Judge in 2020 for want of requisite pleading. However, liberty was granted to the petitioner to challenge the decision of the Governing Body. Accordingly, he moved another petition.

Counsel for the petitioner submitted that the impugned decision of the Governing Body culminated in the College refusing to issue the letter of appointment to the petitioner and that it was thereby arbitrary, discriminatory and in violation of the 2016 Act.

Counsel  for the college submitted that a mere recommendation for appointment to a post does not confer any right on the petitioner to be appointed to such post. It was also argued that since the advertisement for the post was published by the College Service Commission in 2015, the facts would be governed by the 1995 Act and not the 2016 Act.

While deciding the question of whether the petitioner's case would be governed under the 1995 Act or the 2016 Act, Justice Bhattacharya recalled that Section 102(2) of the 2016 Act provides for a saving clause with reference to anything done or any action taken under the 1995 Act as deemed to have been done or taken under the corresponding provisions of the 2016 Act. "Hence, even if the advertisement was published by the Commission on 30th June, 2015 before the 2016 Act came into force, the action of the Commission and the College taken on the basis of such advertisement would continue under the provisions of the 2016 Act." observed the Judge.

Moreover, the Single Judge found that the objects of the 2016 Act make it evident that it is a piece of beneficial legislation for preserving the rights of persons with disabilities and empowering them with equal opportunities. "If this be the case, attempting to slot the petitioner into one legislation to the exclusion of the other would be an unnaturally restrictive vision of the bridge between the two Acts and their commitment to inclusivity," the Court observed.

Analysing the definition of 'disability' under the 1995 Act and the 2016 Act respectively, the judge observed, "While the 1995 Act associated disability as a condition from birth,  the 2016 Act had a more inclusive definition for the same, which included evolving forms of disability within its fold."

Either way, it was found that in a legislation intended to benefit persons with disability, a definition of disability cannot be frozen with the repealing of the 1995 Act particularly when the whole object of the 2016 Act was to include broad-spectrum disabilities which were not within the recognition of the framers of the earlier statute and to empower persons with disabilities to effectively integrate with society.

In any event, the cause-effect factor cannot be discounted to limit spectrum disabilities just because the petitioner did not have 80% disability from birth, the Court held. Therefore, it was found that the petitioner was a person with disability as defined under the Acts.

The Court then observed that the objective of the 2016 Act was full participation of persons with disabilities and empowering them to realize their full potential. The Judge also found it essential to analyse the definition of 'barrier' as given under Section 2(c) - any factor including communicational, cultural, economic and environmental impeding the full participation of persons with disability in society.

Thus, it was clear that the goal of the 2016 Act was to remove barriers in all forms which would frustrate the object of the Act. Viewed from this angle, it was clear that the decision of the Governing Body, in essence, revealed a set of prejudices which squarely fit into the definition of a  "barrier". The Court added that this was also a reflection of a mindset barrier and that it falls foul of the statutory mandate on all counts.

"The impugned decision is opaque, reflects an intransigent mindset and a systemic obstacle to the personal and intellectual growth of persons with disability. The decision is regressive and chains the freedoms and opportunities of the community." observed the judge.

The court held that the Governing Body had a duty to consider the import of the provisions of the 1995 Act and the 2016 Act which imposed a duty on the Body to act in terms of the mandate of the law which it failed to do.

"There cannot be any denial of the fact that the Governing Body of the College had a duty to act responsibly with sensitivity, having regard to the statutory position governing persons with disabilities. It is all the more surprising that the Governing Body directed the Chairman and Secretary of the College Service Commission to replace the recommendation of the petitioner "by another one with same category" (the words are further indicative of the mindset of the Governing Body)." expressed the judge.

The impugned decision also gave rise to serious civil consequences on the petitioner's rights in specific and persons with disabilities in general, hence the impugned decisions are denounce-worthy as per the 1995 and 2016 Acts and being in direct contradiction with the objectives sought to be achieved by the statutes.

While the Court may not appropriate unto itself the power of recommending the petitioner for appointment, the Court deems it fit to direct the Governing Body to arrive  at a fresh consideration of the facts before it and revisit the issue with due regard to the statutory mandate. The resolution taken by the Governing Body was quashed and it was directed to come up with a fresh decision within 8 weeks. The appeal was thus partially allowed.

Supreme Court of India : Disabled Employee Should Not Be Forced To Forfeit Seniority For Choosing Posting Place under a beneficial circular [Judgement Included]

Court: Supreme Court of India

Bench: Justice Indira Banerjee and Justice J.K. Maheshwari

Caste Title: Net Ram Yadav Vs. The State of Rajasthan & Ors. 

Date of Judgement: 11 Aug 2022

Summary of the Case

A person appointed under quota for Persons With Disabilities was allowed to choose his place of posting as per a beneficial circular issued by the Government- Later, in the state seniority list, his seniority was downgraded for having opted for transfer - The State relied on a provision in the service rules as per which a person will choose seniority within a district on transfer as per his request.

The Court held that provision cannot alter state wise seniority - The Court  also held that the benefit given to disabled persons as per the circular cannot be rendered otiose by imposing conditions.

Rights of Persons With Disabilities Act 2016 - The marginalization of the persons with disabilities is a human rights issue, which has been the subject matter of  deliberations and discussion all over the world. There is increasing global concern to ensure that the disabled are not sidelined on account of their disability (Para 26) 

Rights of Persons with Disabilities Act 2016 - Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled (Para 30)

Rights of Persosn with Disabilties Act 2016 -One of the hindrances/disadvantages faced by the physically disabled persons is the inability to move freely and easily. In consideration of the obstacles encountered by persons with disabilities, the State has issued the said notification/ circular dated 20th July 2000 for posting disabled persons to places of their choice, to the extent feasible. The object of this benefit to the physically disabled is to, inter alia, enable the physically disabled to be posted at a place where assistance may readily be available. The distance from the residence may be a relevant consideration to avoid commuting long distances. The benefit which has been given to the disabled through the Circular/ Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose (Para 31)

The case:

A bench of Supreme Court ruled that disabled employees can’t be forced to forfeit seniority for choosing a posting under the beneficial circular. The circular in question was issued by the Finance Department of the Rajasthan Government. It directed the appointing authorities to consider the posting of persons with disabilities at or near the place for which they opt at the time of appointment.

A bench comprising Justice Indira Banerjee and Justice JK Maheshwari opined that while the physically disabled appellant was appointed in 1993, which was before the Circular was passed in 2000, having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular would be extended even to those candidates who were appointed before issuance of the Circular.

Briefly, the facts of the case are that the appellant, a disabled candidate of the "OBC" category, was selected as Senior Teacher under the Education Department of the Government of Rajasthan, Deeplana in Hanumangarh, District Bikaner, through a direct competitive examination. However, Deeplana, where the Appellant was posted was located at a distance of about 550 kms away from Behror, the place of residence of the Appellant in Alwar District. As per a Circular issued by the Finance Department of the Rajasthan Government, all appointing authorities were directed to consider the appointment/posting of persons with disabilities at or near the place for which they opt at the time of appointment/posting. After the issuance of Circular, the appellant made a representation to be transferred to his home district Alwar, considering his physical disability.

Accordingly, the Deputy Director of Education (Secondary) transferred the Appellant to Alwar. However, the transfer to his home district entailed a down-gradation in his seniority. 

In 2016, the Appellant was promoted to the post of Junior Lecturer and posted at the Government Aadarsh Senior Secondary School at Nangalkhodia, Behror, Alwar. In 2017, the temporary eligibility list of qualified teachers for promotion to the post of Head Master was published and the name of the Appellant did not feature in the list as his name had been deleted from the the State and Divisional level seniority list in 2007 and as a result, had been changed in the seniority list from 870 to 1318. 

The Appellant filed a Writ Petition before the Single Judge of the Jaipur Bench of the High Court of Judicature for Rajasthan, challenging the downgrading of his seniority. However, the same was dismissed. 

Thereafter, he appealed to the Division Bench, which also dismissed his appeal based on Explanation to Sub-Rule (10) of Rule 29 of the Rajasthan Educational Subordinate Services Rules, 1971 (the Explanation). As per  the said Explanation, when an employee is transferred to a district based on his request, he should be placed below the junior most person in the district.

Here, the court opined that the actions of the Respondent-Authorities ex facie violated Articles 14 and 16 of the Constitution of India. On a perusal of the Explanation, the court stated that the said explanation applied to employees in general to discourage transfers on request and that it affects only the district-wise seniority. The Explanation will not alter state level seniority.

The court, acknowledged that the Appellant was appointed in 1993, long before the Circular for appointment/posting of persons with disability at or near the place of their choice was issued in 2000. However, it stated that having regard to the object of issuance of the Circular, which was to enable handicapped employees to opt for posting at a convenient place, the benefit of the circular had to be extended even to those candidates appointed before issuance of the Circular.

Accordingly, the court noted that exclusion of the benefit of the Circular to disabled employees already in employment at the time of its issuance, would violate the fundamental right of those employees to equality under Articles 14 and 16 of the Constitution of India.

Fundamental rights of disabled persons

While opining upon the marginalisation of people with disabilities, the court highlighted that the United Nations Convention on the Rights of Persons with Disability (UNCRPD), which is aimed at protecting the human rights and dignity of persons with disability, was adopted to ensure inherent dignity and individual autonomy of persons with disability. The court underscored that the right of nondiscrimination under the UNCRPD, would include reasonable accommodation and/or concessions for full and effective participation and inclusion in society. Since UNCRPD had been ratified by India, the State was thus obliged to give effect to the UNCRPD.

The court further stated that– "Furthermore, the disabled are entitled to the fundamental right of equality enshrined in Articles 14 to 16 of the Constitution of India, the fundamental freedoms guaranteed under Article 19 including the right to carry out any occupation, profession, the right to life under Article 21, which has now been interpreted to mean the right to live with dignity, which has to be interpreted liberally in relation to the disabled."

While noting that one of the hindrances/disadvantages faced by the physically disabled persons was the inability to move freely and easily, the court held that the object of the Circular issued for posting disabled persons to places of their choice was to enable the physically disabled to be posted at a place where assistance may readily be available. Further, the distance from the residence was s relevant consideration to avoid commuting long distances. The court stated that–

"The benefit which has been given to the disabled through the Circular/Government Order cannot be taken away by subjecting the exercise of the right to avail of the benefit on such terms and conditions, as would render the benefit otiose...Both the Single Bench as also the Division Bench of the High Court have overlooked the scope and ambit of the Explanation which has no application in the State to seniority.

Supreme Court stated that “the High Court should have been more sensitive and empathetic to the plight of a physically disabled. The High Court erred in law in overlooking the difference between physically disabled persons impaired in their movement and normal able-bodied persons. The High Court failed to appreciate that treatment of unequals as equals ignoring their special needs violates Article 14 of the Constitution.”

In view of the above, The Supreme Court allowed the appeal and directed the respondents to restore the seniority of the Appellant in the State to the original position, taking into account the service rendered by him in Hanumangarh.

Read the Judgement embedded below:

Supreme Court of India issues Guidelines on writing simple, accessible and lucid judgements

Court:               Supreme Court of India

Bench:               Justices DY Chandrachud and AS Bopan

Case No. :         CA 5305 of 2022

Caste Title:       State Bank of India vs Ajay Kumar Sood  

Date of Order:  16 August 2022

Notes: 

Judgments - Broad guidelines on judgment writing - While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles -

Incoherent judgments have a serious impact upon the dignity of our institutions -

"IRAC‟ method of judgment writing - The judge must write to provide an easy-tounderstand analysis of the issues of law and fact which arise for decision.

Judgments - Accessibility - Judgments to carry paragraph numbers and a table of contents in a longer version - Judgments should be accessible to persons from all sections of society including persons with disability - They should not have improperly placed watermarks and should be signed using digital signatures - They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens. 

Synopsis

The purpose of a judgment is not to "confuse or confound the readers", the Supreme Court of India has urged the Courts and Tribunals to "provide an easy-tounderstand analysis of the issues of law and fact" in their verdicts. The crucial observation was made by the SC Bench while dealing with a judgment of the Himachal Pradesh High Court which was found to be "incomprehensible".

"Judgments are primarily meant for those whose cases are decided by judges. Judgments of the High Courts and the Supreme Court also serve as precedents to guide future benches. A judgment must make sense to those whose lives and affairs are affected by the outcome of the case. While a judgment is read by those as well who have training in the law, they do not represent the entire universe of discourse. Confidence in the judicial process is predicated on the trust which its written word generates. If the meaning of the written word is lost in language, the ability of the adjudicator to retain the trust of the reader is severely eroded". said the bench.

The Bench also made following important observations:

The work of a judge cannot be reduced to a statistic about the disposal of a case.

Amidst an overburdened judicial docket, a view is sometimes voiced that parties are concerned with the outcome and little else. This view proceeds on the basis that parties value the outcome and not the reasoning which constitutes the foundation. This view undervalues the importance of the judicial function and of the reasons which are critical to it. The work of a judge cannot be reduced to a statistic about the disposal of a case. Every judgment is an incremental step towards consolidation and change. In adhering to precedent, the judgment reflects a commitment to protecting legal principle. This imparts certainty to the law. Each judgment is hence a brick in the consolidation of the fundamental precepts on which a legal order is based. But in incremental steps a judgment addresses the need to evolve and to transform by addressing critical issues which confront human existence. Courts are as much engaged in the slow yet not so silent process of bringing about a social transformation. How good or deficient they are in that quest is tested by the quality of the reasons as much as by the manner in which the judicial process is structured.

A judgment is a manifestation of reason

A judgment culminates in a conclusion. But its content represents the basis for the conclusion. A judgment is hence a manifestation of reason. The reasons provide the basis of the view which the decision maker has espoused, of the balances which have been drawn. That is why reasons are crucial to the legitimacy of a judge's work. They provide an insight into judicial analysis, explaining to the reader why what is written has been written. The reasons, as much as the final conclusion, are open to scrutiny. A judgment is written primarily for the parties in a forensic contest. The scrutiny is first and foremost by the person for whom the decision is meant - the conflicting parties before the court. At a secondary level, reasons furnish the basis for challenging a judicial outcome in a higher forum. The validity of the decision is tested by the underlying content and reasons. But there is more. Equally significant is the fact that a judgment speaks to the present and to the future. Judicial outcomes taken singularly or in combination have an impact upon human lives. Hence, a judgment is amenable to wider critique and scrutiny, going beyond the immediate contest in a courtroom. Citizens, researchers and journalists continuously evaluate the work of courts as public institutions committed to governance under law. Judgment writing is hence a critical instrumen  in fostering the rule of law and in curbing rule by the law 

Judgment writing is a layered exercise

Judgment writing is a layered exercise. In one layer, a judgment addresses the concerns and arguments of parties to a forensic contest. In another layer, a judgment addresses stake-holders beyond the conflict. It speaks to those in society who are impacted by the discourse. In the layered formulation of analysis, a judgment speaks to the present and to the future. Whether or not the writer of a judgment envisions it, the written product remains for the future, representing another incremental step in societal dialogue. If a judgment does not measure up, it can be critiqued and criticized. Behind the layers of reason is the vision of the adjudicator over the values which a just society must embody and defend. In a constitutional framework, these values have to be grounded in the Constitution. The reasons which a judge furnishes provides a window - an insight - into the work of the court in espousing these values as an integral element of the judicial function.

Brevity is an unwitting victim of an overburdened judiciary

Many judgments do decide complex questions of law and of fact. Brevity is an unwitting victim of an overburdened judiciary. It is also becoming a victim of the cutcopy-paste convenience afforded by software developers. This Court has been providing headings and sub-headings to assist the reader in providing a structured sequence. Introduced and popularized in judgment writing by Lord Denning, this development has been replicated across jurisdictions.

It is also useful for all judgments to carry paragraph numbers as it allows for ease of reference and enhances the structure, improving the readability and accessibility access of the judgments. A Table of Contents in a longer version assists access to the reader.

IRAC Method Of Judgment Writing

1. In terms of structuring judgments, it would be beneficial for courts to structure them in a manner such that the "Issue, Rule, Application and Conclusion‟ are easily identifiable. The well-renowned "IRAC‟ method generally followed for analyzing cases and structuring submissions can also benefit judgments when it is complemented by recording the facts and submissions.
2. The "Issue‟ refers to the question of law that the court is deciding. A court may be dealing with multiple issues in the same judgment. Identifying these issues clearly helps structure the judgment and provides clarity for the reader on the specific issue of law being decided in a particular segment of a judgment.
3. The "Rule‟ refers to the portion of the judgment which distils the submissions of counsel on the applicable law and doctrine for the issue identified.
4. This rule is applied to the facts of the case in which the issue has arisen. The analysis recording the reasoning of a court forms the "Application‟ section.
5. Finally, it is always useful for a court to summarize and lay out the "Conclusion‟ on the basis of its determination of the application of the rule to the issue along with the decision vis-à-vis the specific facts. This allows stakeholders, especially members of the bar as well as judges relying upon the case in the future, to concisely understand the holding of the case.

Accessibility

On the note of accessibility access , the importance of making judgments accessible to persons from all sections of society, especially persons with disability needs emphasis. All judicial institutions must ensure that the judgments and orders being published by them do not carry improperly placed watermarks as they end up making the documents inaccessible for persons with visual disability who use screen readers to access them. On the same note, courts and tribunals must also ensure that the version of the judgments and orders uploaded is accessible and signed using digital signatures. They should not be scanned versions of printed copies. The practice of printing and scanning documents is a futile and time-consuming process which does not serve any purpose. The practice should be eradicated from the litigation process as it tends to make documents as well as the process inaccessible for an entire gamut of citizens.

While we have laid down some broad guidelines, individual judges can indeed have different ways of writing judgments and continue to have variations in their styles of expression. The expression of a judge is an unfolding of the recesses of the mind. However, while recesses of the mind may be inscrutable, the reasoning in judgment cannot be. While judges may have their own style of judgment writing, they must ensure lucidity in writing across these styles.

Read the judgement embedded below:

Tribunal orders the Govt. of Delhi to change Recruitment Rules to reflect equal status of B Ed and Special B Ed. and declare the result & appoint applicant with consequential benefits, if she successful

"Our reading of the degree held by the applicant of B.Ed Special Education means that the term ‘B.Ed’ gets subsumed in the B.Ed Special Education"     - Says Central Administrative Tribunal on Delhi Govt. withholding exam result & rejecting candidature of an applicant as non eligible.

 

Court: Central Administrative Tribunal, Principal Bench, New Delhi

Bench: Hon’ble Mr. R N Singh, Member (J) & Hon’ble Mr. Tarun Shridhar, Member (A)

Case No.:  O.A. No. 2183/2015

Case Title:  Uma Rani Vs. Govt of NCT of Delhi &  Others

Date of Judgement: 16 August 2022

Brief:  

The applicant appeared in a competitive examination for selection to the post of TGT (Hindi) Female in the Department of Education, Government of NCT of Delhi pursuant to an examination conducted by the respondent No. 2 i.e. the Delhi Subordinate Services Selection Board (DSSSB).

While the result of  the examination with respect to other candidates, who had appeared for the said post, was declared, the result qua the applicant was withheld and subsequently, the candidature of the applicant was rejected on the ground that she did not possess the requisite essential qualification of Bachelor of Education (B.Ed). The applicant possesses the qualification of B.Ed i.e. B.Ed in Special Education (Mental Retardation) and the respondents have held that this qualification is not equivalent to B.Ed.

The applicant argued that persons possessing the degree of B.Ed Special Education are trained and competent not only to teach regular subjects but also to handle the specific needs and requirements of children who are differently or specially abled. 

Reliance ws also placed on the Supreme Court Judgement in which the apex court has unambiguously held that B.Ed. Special Education is equivalent to the B.Ed. And therefore, there was noo cause for the respondents to deny consideration of selection of the applicant on the ground that the applicant does not possess equivalence degree to the one required in the Recruitment Rules. 

Attention of the Bench was further drawn to the detailed judgment dated 16.09.2009 passed by the Hon'ble High Court of Delhi in WP (C) 6771/2008 titled Social Jurist, A Civil Rights Group versus Government of N.C.T. of Delhi & Anr. In the aforesaid Judgment, the Delhi HC had given a direction to the respondents i.e. GNCTD to grant equivalence to B.Ed. Special Education with B.Ed General. In fact, while giving this categorical direction the Hon’ble High Court had also observed and used the term ‘request’ to the respondents to consider granting preference and priority to the candidates holding B.Ed Special Education in appointment of Teachers in all their schools. The High Court had observed that each school shall have at least two special teachers along with necessary teaching aids and reading materials. The said direction/observation/request of the Court was against the background of children with special needs not getting admission in regular schools on account of non-availability of trained teachers and necessary facilities.

Attention was also drawn to an Order dated 31.03.2016 passed by this Tribunal in O.A. No. 3442/2014, wherein it was held that since the Right to Education Act stipulated that the teachers with qualification of B.Ed or D.Ed in Special Education should be recruited in the schools.

But despite several orders the resondents haven't made any change to Recruitement Rules to include the term B Ed Special Education and it contined to be implemented mechanically with the term B. Ed. used therein.  

The bench said in its order, "we are surprised to know that the respondents have not taken any steps to either amend the necessary rules or even issue administrative orders declaring equivalence of B.Ed Special Education with B.Ed." 

"We have no cause to deviate from the principle and law already laid down by the Hon'ble High Court. Moreover, even our reading of the degree held by the applicant of B.Ed Special Education means that the term ‘B.Ed’ gets subsumed in the B.Ed Special Education and we cannot hold the validity of the action of the respondents in rejecting the candidature of the applicant." opined the bench.

Allowing the Original Application, the bench further directed the respondents that in the  event of the applicant having been successful in the competitive exam and given appointment pursuant to this Order, she shall be entitled to all the consequential benefits, including seniority at par with the candidates selected pursuant to the notification dated 21.05.2014. However, such consequential benefits shall be only on notional basis.

Read the Judement embedded below:

Kerala HC orders the Govt. of Kerala & Aided schools to fill up backlog of 3% reservation since 07 Feb 1996 under PWD Act 1995 & 4% reservation since 19.04.2017 under RPWD Act 2016

Dear colleagues,

The Kerala High Court (Ernakulam Bench)  has come heavily against the aided Schools in Kerala and Govt. schools for not implementing the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act 1995 and the Rights of Persons with Disabilities Act 2016 and not appointing persons with disabilities on the teaching and non -teaching posts.  Several cases were tagged together with a common grievance against the Govt. of Kerala. The court impleaded a total of 106 additional respondents in the lead case while the original petition only had three respondents namely the State of Kerala (rep by Secretary to General Education), the Director of General Education and the State of Kerala (rep. by Secretary Social Justice Deptt). 

The petitoner in the lead case was Mr. K.J. Varghese, the President of  Kerala Federation of the Blind, representing five blind persons who contended that they have acquired all the requisite qualifications to seek appointment to the post of Upper Primary School Teacher, High School Teacher, and also for non-teaching posts in Aided Schools in the State.

The court presided by Mr. Justice Raja Vijayaraghavan V.  in the judgement passed on 10 Aug 2022, held and declared that the Managers of Aided Schools are bound by G.O.(P) No.18/2018/SJD dated 18.11.2018, and they shall provide 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from 07.02.1996 and to fill the backlog from 07.02.1996 to 18.04.2017; and 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided schools with effect from 19.04.2017 in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the orders referred to therein.

It also quashed G.O.(P) No.19/2021/G.Edn. dated 08.11.2021 (Ext.P5 in W.P.(C) No.19808/2021) and Order dated 07.12.2021 vide No. H(2)/295299/2021/D.G.E. issued by the Additional Director General (Ext.P6 in W.P.(C) No.19808/2021) to the extent that it fixes a cut off date and directs that only vacancies in Aided schools which arise after 08.11.2021 shall be filled up in terms of the 1995 Act/2016 Act. 

The High Court bench ordered that in terms of G.O.(M.S) No.111/2022/G.Edn. dated 25.06.2022 but without the cutoff date fixed as 08.11.2021, backlog vacancies from 07.04.1996 shall be calculated and the roster shall be prepared within a period of two months from today tabulating the first in 33 vacancies from 07.02.1996 and the first in 25 vacancies from 19.04.2017 onwards for absorbing differently abled in the process of recruitment in Aided Schools in respect of vacancies that have arisen after the date of issuance of G.O.(P) No.18/2018/SJD dated 18.11.2018 as upheld by this Court in Renjith (supra) and in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the previous orders referred to therein.

The Court also ordered that the appointments already made by the management after the date of issuance G.O.(P) No.18/2018/SJD dated 18.11.2018 in respect of which approval has not been granted by the educational authorities to date shall be subject to the directions above. Only after filling the backlogs as directed above, shall approval be granted in respect of those appointments. Approval of appointments already granted shall not be unsettled.

This case sets a clear road map for implementation of job reservations from 07 Feb 1996 as per the mandate of the1995 Act as a backlog and that the State couldn't decide when it wants to implement the law of its own whims and fancies by providing new cutt of dates. 

Below is the link to the Judgement dated 10 Aug 2022 by the High Court of Kerala at Ernakulam :  

W.P.(C) No.19808/2021 & connected cases titled  K.J. Varghese Vs. Govt. of Kerala & 108 Others [PDF 901 KB]

Madras HC | WP No. 23154 of 2015 | D Ramkumar Vs. Pondicherry Society for Higher Education and Others | 08 Aug 2022

 Court: High Court of Madras

Bench: MR. JUSTICE M.S. RAMESH

Case No. & Title: W.P.No.23154 of 2015, D Ramkumar Vs. Pondicherry Society for Higher Education and Others.

Date of Judgement: 08 Aug 2022

------

Brief Facts:

The petitioner, a 100% blind Associate Professor/HOD of English was transferred to another college citing that it was women college and all male teachers need to be shifted to other colleges, while many male teacherss continued to work and only the petitioner was transferred with malafile objectives. This was challenged by the petititioner. Single bench rejected his case but the in the appeal before the  Division Bench of this Court, the bench clearly held that the order of transfer was discriminatory and arbitrary, which has to be regarded as illegal. And thus the petitioner returned to his colleges. The college however, refused to pay salary and other monetary benefits for the period and rejected on the ground of "no work no pay" and that the Bench had specifically not directed to pay the wages.

The petitioner again had to take up the matter. The bench held, the claim for the monetary benefits including the salary after the transfer order, cannot be rejected on the ground of 'no work, no pay.  The court further held that  when the order of transfer of the petitioner was set aside by this Court, the consequential service and monetary benefits arising therefrom between 26.11.2013 and 29.06.2014 would automatically become a part of such an order and no specific directions need be given for payment of such benefits. If that be so, the petitioner herein need not specifically plead for the relief of consequential service and monetary benefits, in the earlier round of litigations. Incidentally, since the Hon'ble Division Bench had not denied these benefits to the petitioner, it ought to be held that he would be entitled for all these benefits. 

The court passed direction to the first respondent to forthwith regularise the period between 25.11.2013 and 29.06.2014, as duty period for all purposes and extend all the service and monetary benefits arising thereto, within a period of four (4) weeks from the date of receipt of a copy of this order.

Read the judgement embeddded below:

Madras HC | PIL titled Rajiv Rajan Vs. The MTC(C)L & Ors on implementation of PWD Act 1995

Bench:  M.M.SUNDRESH, J. and R.HEMALATHA,J.

Case No. WP No. 38224 of 2005

Case Title: Rajiv Rajan  Vs Chairman and Managing Director, Metropolitan Transport Corpn (Chennai) Ltd. and 3 others.

Sub: PIL for Accessible and Disabled friendly  Public Infratructure, Railways Stations, Buses, Bus Shelters, Publlic Toilets, Metro Rail etc.  

-----------------

Rajiv Rajan                                                         .. Petitioner 

vs 

1.The Chairman and Managing Director Metropolitan Transport Corporation (Chennai) Ltd., An Undertaking of the Government of Tamil Nadu Pallavan House, Anna Salai, Chennai 600 002 

2.The Commissioner Corporation of Chennai, Ripon Building, Chennai 600 003 

3.The State Co-ordination Committee, Rep. By Chairperson Secretary, Department of Social Welfare Government of Tamil Nadu Fort St. George, Chennai 600 009 

4.The Commissioner for Persons with Disabilities, 15/1, Model School Road Thousand Lights, Chennai 600 006                                                 .. Respondents

Brief:

This Writ petition was filed by our colleague Mr. Rajiv Rajan, under Article 226 of the Constitution of India praying for issuance of a writ of mandamus directing the respondents more particularly respondents 1 and 2 to implement “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” in its spirit by providing user friendly transport, access and barrier free environment in the public places giving access to the usage of transport system.

The court passed comprehensive order on 02.03.2006 and thereafter the matter has been kept live for follow ups. 

On 10-9-2014, the bench of  Mr. Sanjay Kishan Kaul, The Chief Justice and Mr. Justie M. Sathyanarayanan disposed off the matter in terms of order already passed on 2.3.2006. However, the bench directed the Governemnt to file compliance report every month setting out what action they have taken under Sections 44 to 46 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, separately in that 3 month to comply with the directions. The matter was thus to be listed every month for compliance.

On 06.04 2016 the Learned Amicus suggested that for the time being, the issue which we are required to address is the lack of improvement by Metro Transport Corporation (MTC) and State Express Transport Corporation (SETC) in introducing buses which are disabled friendly. On the other hand, learned counsel appearing for the MTC and SETC submited that though initially there was some restraint in respect of procuring buses, it had been observed that there may be some buses procured dedicated for the use of persons with special needs, but the passengers found travelling in such buses were few. 

The bench however was of the view that any steps to be taken for the benefit of the persons with special needs has to be inclusive in character. The idea cannot be to have separate buses, but buses which are used daily by passengers meeting the requirement of Persons with special needs. It is not possible to predetermine the route to be travelled, the destination to be reached etc., by introducing buses only for certain routes which are disabled friendly. The objective has to be, over a period of time, to make sure all the buses in use meet the requirement of people with special needs. This can only happen if procurement of such buses which are meant to cater to the people with special needs, as otherwise what has happened would continue to happen – introducing of new buses in the fleets which still do not meet the requirement of the people with special needs. 

The court thus directed that any new buses to be introduced in the fleets must meet the requirement of the people with special needs and as per the norms in consultation with the Commissioner for Persons with Disabilities. In determining whether a bus is disabled friendly, inter alia, it has to be ensured that there is easy access for boarding and alighting.

On 28.06.2016, The court expressed, "the necessity of new buses meeting the requirement of persons with special needs as per norm and consultation with the Commission for Persons with Disabilities cannot be doubted. However, what is sought to be projected is that in some of the routes, a bus shelter may not be conducive to the ingress and egress for such buses. If that be the position, the first respondent, can always address the Commissioner, Municipal Corporation of Chennai/2nd respondent which would be mandated to make the necessary adjustments. It has also been stated that a policy decision would have to be taken by the Government, as the first respondent has no funds even to buy buses. In this behalf, all that we can say is that at some stage, the State Government would have to take a call as to how the first respondent is to be managed financially, if it wants the Corporation to continue. There can be buses already on the way out as per norms and we are conscious of the fact that it may be difficult to convert the existing buses and therefore our direction is for buses procured in future to comply with the requirements, so that over a period of time, all buses will become compliant.

on 05.07.2022, the bench directed that a copy of the compliance reports filed in W.P.No. 923 of 2007 shall be kept in this writ petition for reference. And on next date of hearing i.e. 02.08.2022, the Bench of Chief Justice and Justice N. Mala, ordered the matter to be closed based on compliance reports being filed by the Govt. 

Court of CCPD directs Kerala Gramin Bank to give promotion to a candidate with blindnesss on equal basis with others.

 Court:         Chief Commissioner for Persons with Disabilities, India

Case No.     13186/1021/2021

Case Title:   Sukulal Vs. Chairman, Kerala Gramin Bank 

Date of Order: 04 August 2022

Subject:    Discrimination in promotion on the basis of disability to a blind candidate, Relaxation of Standards, Reasonable Accommmodation

Read the order embedded below:

Triputa HC: Employer's Failure To Meet Needs Of Disabled Persons Breaches Norms of "Reasonable Accommodation" [Judgement included]

Court: Tripura High Court, Agartala, India

Bench/Judge: Hon'ble Mr. Justice Arindam Lodh

Case Title:   WP(C) 694 of 2020 | Sri Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corporation Limited (TSECL) and Ors.

Date of Judgement:  01 Aug 2022

Cases Referred/quoted : Vikash Kumar Vrs. Union Pulbic Service Commission & Ors., (2021) 5 SCC 370. 

The case in brief

The petitioner was an employee of Tripura State Electricity Corporation Limited. During the course of performing his duties, he met with an accident which rendered him disabled. He was not paid salary by the Corporation because he could not perform the duties he owed to the Corporation as their employee, though he was willing to join and perform duties which would be commensurate with his disability.

The Tripura High Court observed that employers must "reasonably accommodate" persons with disabiliteis into service and that failure to do so violates their rights under  The Rights of Persons with Disabilities Act, 2016.

The Court also refered to Secction 47 of the Persons with Disabilties  Act 1995 (now repealed) and a DoPT Memorandum dated 25 Feb 2015 on subject "Amendment to Central Civil Service (Leave) Rules, 1972 - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995)- regarding" and  expressed that the aforesaid memorandum dated 25th February, 2015 was further reviewed in the year 2016 where the rights of persons with disabilities were not in any way diluted rather expanded the rights of such persons. It mandates that the State-employer must create conditions in which the barriers posed by disability can be overcome.

It is pertinent to note that the protections available under Secction 47 of the PWD Act 1995 have been contined in Section 20(4) of the RPWD Act 2016 as below:

"20. Non-discrimination in employment. - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

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, exempt any establishment from the provisions of this section.

(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

(3) No promotion shall be denied to a person merely on the ground of disability.

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall 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.

(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."

The single bench presided by Mr. Justice Arindam Lodh in his order remarked,  "The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation."

It is the case of the petitioner that while the petitioner was discharging his duties he suffered an accident and out of that accident, he became disabled. Due to such disability, he could not attend his duties. It is the contention of the respondents that the salary of the petitioner was duly paid upto 16.03.2020. Thereafter, no salary was paid to the petitioner though he was all along willing to join to perform his duties commensurate to his disability. From the report of the Standing Medical Board, it is clear that the petitioner was not in a position to perform his official and field level activities which may work out throughout the State. In spite of that report, the petitioner was not paid his due salary and other allowances treating his absence from duty as unauthorized.

Court noted that a plea has been taken that the respondents did not accept his joining report or leave application as he did not report to the joining authority in person. He expressed his willingness to join his duties by submitting an application to the authority concerned. But it was refused on the pretext that the petitioner was not physically appeared before the concerned authority which is not at all expected. The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve.

Keeping in view the above objective, the court directed the respondents to "reasonably accommodate" the petitioner and passed the folloiwng order:

"(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;

(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;

 

(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;

(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;

(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made here-inabove;

(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7 (seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and

(vii) it is not advisable to send the petitioner to the Medical Board time and again."

What is missed in this judgement.

The judgement though extends relief to the petitioner, it  adopts some very poor legal reasoning for the relief provided.

Firstly, the judgement fails to appropriately explain the “reasonable accommodation” & its relation to the employment rules. In fact there was no reference needed to be made with reasonable accommodation since the law is clear on the protections available under the Act to a person acquirng disability while in service. It ensures that such a person will not be discriminated against merely because of the disabilty acquired and his job, post and related benefits would be protected even when the person is unable to perform any functions. 

Secondly, it presents that the barriers faced by disabled persons arise from their medical condition of disability, rather than the disabling environment around them which mmay be inform of inaccessible built environment, discriminatory employment policies and practices.

Thus the thought processs and the reasoning given in the judgemement doesn't gel with the overal scheme of the RPWD Act and jurisprudence developed through various case laws since 1996.

 

Read the judgement embedded below:

DHC constitutes High Powered Committee to recommend Solutions for ensuring Access to Financial Services for people with vision impairments [Court Order included]

Dear Colleagues,

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, while hearing a petition filed by Mr. George Abraham, a petitioner with vision impairment on the difficulties being faced by visually challenged persons in accessing financial services and general non-compliance of the provisons of Rights of Persons with Disabilities Act 2016, has constituted a seven membeer High Powered Committee of experts to recommend solutions. 

The bench was hearing several public interest petitions which were clubed with the lead case by Mr. George Abraham. Other petitioners included All India Confederation of the Blind, Blind Graduate Forum of India and Rohit Dandriyal & others. 

The High Powered Committee shall be chaired by Prof. M Balakrishnan, Department of Computer Science and Engineering, IIT Delhi. The order said, "High Powered Committee is constituted by this Court to look into all the grievances raised in the present application and the connected writ petitions to offer practical solutions in the matter. It is needless to state that the scope of the work of the Committee will not be confined only to the issues raised in the present writ petitions but other ancillary issues as well." 

As per the Court order dated 29 July 2022, the High Powered Committee shall consist of the following persons:- 

i. Prof. M. Balakrishnan, Professor, Department of Computer Science and Engineering, IIT Delhi. (Chairman of the committee)

ii. Prof. Kolin Paul, Professor, Department of Computer Science and Engineering, IIT Delhi. 

iii. Ms. Manisha Mishra, (GM), Department of Regulation. RBI

iv. Mr. Tushar Bhattacharya, (DGM) Department of Supervision. RBI 

v. Mr. George Abraham, the Petitioner in W.P.(C) 694/2020. 

vi. Mr. Amar Jain, Member of Blind Graduates Forum of India i.e. the Petitioner in W.P.(C) 64/2019. 

vii. Officer to be nominated by the Union of India. 

The court also requested the Director, IIT Delhi  to provide all logistic support to the Committee constituted under the Chairmanship of Prof. M Balakrishnan.

The petitioner Mr. George Abraham had prayed before the Court seeking directions/ appropriate writs:

1. to ensure that all the banks comply with the Master Circular DBR No. Leg. BC. 21 / 09.07.006 / 2015-16, dated July 1, 2015 issued by/  Respondent No.3;
2. to ensure that card reading devices for making card payments (Point-of-Sale Machines) are accessible for visually challenged persons;
3. to ensure that all bank websites and mobile phone applications for financial services are tested for accessibility at every stage of transaction;
4. to make it mandatory that all net banking facilities and mobile phone applications comply with W3C guidelines which are recognized by the Government of India;
5. to make it mandatory that all digital mobile wallet applications are accessible and user-friendly for visually challenged persons;
6. to ensure all ATM machines are voice-enabled and accessible for visually challenged persons;
7. to ensure that all software and hardware products procured by banks to be disabled-friendly;
8. for implementation of Section 13 of the Rights of Persons with Disability Act, 2016 with regard to visually challenged persons having control over their financial affairs;
9. to ensure that employees and customer care service providers of all banks and financial services are trained and sensitized towards the needs and requirements of visually challenged customers;

"This Court is pained to observe at this juncture that it is unfortunate that judicial intervention is required in such matters when measures to ensure ease of accessibility for the specially-abled should be implemented in a proactive manner. However, this Court hopes that the Committee will take these observations into consideration while arriving at a feasible solution," the Bench said.

The Court has granted three months to the committee for filing status report in the matter.  The matter will now be heard on November 25, 2022.

Here is the Court order in the case W.P.(C) 694/2020 titled George Abraham Vs. Union of India & Ors. dated 29 July 2022