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

Supreme Court while upholding the Karnataka HC decision directs Karnataka Govt not to deny Primary School Teacher jobs to Visually Impaired Candidatesto

Court: Supreme Court of India

Bench: Hon'ble the Chief Justice T.S. Thakur, Hon'ble Mr. Justice A.M. Khanwilkar, Hon'ble Dr. Justice DY Chandrachud

Case No.: Civil Appeal No. 3910 of 2009 (Against the final order and judgment of the Karnataka High Court in PIL Writ Petition No. 16396 of 2005 dt. 29.09.2007)

Case Title: Selection Authority and Deputy Director  Vs. Akhila Karnataka S.K. Andha Sangha

Date of Judgement: 01 Sep 2016

Supreme Court directs Karnataka Govt. to not keep visually impaired persons out of primary school teacher jobs while dismissing the appeal filed by the Karnataka Govt.

Supreme Court of India upheld the ruling of the Karnataka High Court in PIL Writ petition No. 16396 of 2005, directing the Karnataka State Government to ensure reservation for visually impaired persons in the role of primary school teachers and to execute this through a dedicated recruitment drive. This decision marked the culmination of a legal battle that saw the state government arguing that individuals with blindness or low vision were unsuitable for the role of primary school teachers and should not be entitled to reservation in these positions.

The repercussions of this Supreme Court ruling are significant, as it will necessitate the recruitment of hundreds of blind and low vision individuals to address the shortfall in reserved vacancies that had persisted since 2005.

This legal victory was achieved through the efforts of a non-governmental organization (NGO) representing blind individuals, known as the "Akhila Karnataka Andha S.K. Sangha", with the able representation of Advocate Jayna Kothari. The organization had previously succeeded in petitioning the Karnataka High Court, where the state had argued that primary school teacher positions were ill-suited for visually impaired persons. In an affidavit submitted to the Supreme Court in July 2016, the state contended that students in primary schools could not be effectively taught by teachers with blindness or low vision. They further claimed that many government primary schools, out of a total of 44,000, had only one or two teachers without additional support staff, making it difficult for such schools to function if reservations were granted to visually impaired persons.

However, the Supreme Court ultimately rejected these arguments put forth by the Karnataka State Government. The bench, led by the Chief Justice of India, pointed out that the Persons with Disabilities Act of 1995 mandates that a minimum of 3% of all government job vacancies should be reserved for disabled individuals. Of this quota, at least 1% should be allocated for persons with impaired vision. Moreover, both the Central and Karnataka State Governments had recognized primary school teaching positions as suitable for blind and low vision individuals in accordance with the said Act. The court maintained that placing visually impaired individuals in schools equipped with other teachers and support staff would not disrupt the schools' functioning, particularly given the availability of modern technology-based aids and appliances for blind and low vision individuals. Thus, the Supreme Court held the state government responsible for fulfilling its obligation to employ visually impaired persons in these positions and dismissed their appeal.

Below the Supreme Court's order dated 01.09.2016 dismissing the appeal of the State Govt. of Karnataka:

"We have heard learned counsel for the parties at considerable length who have taken us through the orders impugned in these appeals. We are of the considered view that the impugned orders do not suffer from any error much less any perversity to compel our interference in exercise of our powers under Article 136 of the Constitution of India. These civil appeals accordingly fail and are dismissed."

Access the Karnataka HC Judgement:

Private School Autonomy Cannot Override Disability Rights: Delhi High Court

Court: Delhi High Court
Bench: Justice Manmohan
Case No.: W.P.(C) 2699/2016
Case Title: Siddharth International Public School v. Motor Accident Claims Tribunal & Anr.
Date of Judgment: 26 August 2016

Background

In a significant judgment strengthening the principles of inclusive education and disability rights, the Delhi High Court reaffirmed that educational institutions cannot deny admission to children with disabilities on the basis of institutional inconvenience, infrastructural limitations, or rigid procedural requirements.

The case arose from proceedings concerning Master Priyanshu, a child who had suffered amputation following a motor accident and thereafter used a prosthetic leg. Proceedings relating to his rehabilitation and compensation had earlier been initiated before the Motor Accident Claims Tribunal (MACT).

Taking note of the child’s educational deprivation and rehabilitation needs, the Tribunal directed facilitation of his admission in Siddharth International Public School under the Economically Weaker Section (“EWS”) and Disadvantaged Group (“DG”) category with appropriate relaxation in age criteria.

Aggrieved by these directions, the petitioner-school approached the High Court challenging the legality and jurisdictional basis of the orders passed by the Tribunal.

The school argued that:

• the MACT lacked jurisdiction to direct admission of the child;
• no vacant EWS seats were available;
• the directions interfered with institutional autonomy in admission matters;
• the child exceeded the prescribed age limit for Class I admission;
• the school could not be compelled to provide special educators or barrier-free infrastructure; and
• transportation facilities for the child were unavailable.

The school further contended that admitting a ten-year-old child into Class I would adversely affect the educational environment for other students.

On the other hand, the respondents argued that the school had failed to comply with its obligations under the Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act”) and that inclusive education required accommodation of the child under the EWS/DG framework.

The matter therefore raised an important constitutional issue — whether institutional rules and administrative barriers could override the educational rights of a child with disability.

Key Observations of the Court

Justice Manmohan adopted a rights-based and constitutionally sensitive approach while examining the dispute.

At the outset, the Court clarified that the matter could not be treated merely as a technical controversy concerning admission procedures or seat allocation. Instead, the Court viewed the issue through the broader constitutional framework of equality, dignity, inclusion, and access to education.

A particularly important aspect of the judgment lies in the Court’s rejection of the petitioner-school’s attempt to invoke institutional autonomy to deny admission to a child with disability.

While private educational institutions often rely upon autonomy in administrative matters, the Court made it clear that such autonomy cannot override constitutional obligations flowing from welfare legislation and the rights of vulnerable children.

The judgment recognised that private schools performing public educational functions remain bound by constitutional values and statutory obligations aimed at ensuring social justice and educational inclusion.

The Court also rejected the school’s infrastructural objections, including its contention that it could not be compelled to provide special educators, barrier-free access, or disability-sensitive accommodations.

In doing so, the Court effectively affirmed the principle of reasonable accommodation — now recognised as a foundational component of disability rights jurisprudence. The judgment makes it clear that educational institutions cannot refuse admission merely because inclusion requires institutional adaptation or infrastructural effort.

Another important feature of the ruling is the Court’s purposive and child-centric interpretation of the educational framework under the RTE Act.

The Court declined to adopt a rigid approach regarding age eligibility and instead prioritised the child’s right to education and rehabilitation. It recognised that mechanical insistence upon procedural requirements, especially in cases involving vulnerable children facing extraordinary circumstances, may itself amount to exclusionary discrimination.

The Bench thereby embraced the principle of substantive equality rather than mere formal equality.

Importantly, the Court recognised that educational inclusion for children with disabilities is not a matter of charity or benevolence but a constitutional and statutory entitlement flowing from Articles 14, 21, and 21A of the Constitution of India.

The judgment also acknowledged the larger social importance of inclusive education. Implicit within the ruling is the understanding that schools must reflect constitutional values of fraternity, diversity, empathy, and equal participation.

Directions Issued

The Delhi High Court upheld the essential objective underlying the directions passed for the child’s educational inclusion and rejected the challenge raised by the petitioner-school.

The Court effectively affirmed:

• that children with disabilities cannot be denied educational access on the basis of institutional inconvenience or infrastructural inadequacy;
• that private schools remain obligated to comply with inclusive education mandates under welfare legislation;
• that procedural and technical barriers cannot defeat the fundamental right to education of vulnerable children; and
• that educational institutions are under a duty to facilitate inclusion through reasonable accommodation and supportive measures.

The judgment thereby reinforced that educational access for children with disabilities must be interpreted in a rights-based and constitutionally sensitive manner.

Commentary

The decision in Siddharth International Public School v. Motor Accident Claims Tribunal & Anr. is an important reaffirmation of inclusive education as a constitutional obligation rather than a matter of institutional discretion.

One of the most significant contributions of the ruling lies in its rejection of the assumption that disability accommodation is optional or dependent upon institutional convenience. The Court instead recognised accessibility and inclusion as indispensable components of the right to education itself.

The judgment meaningfully advances the constitutional principle of substantive equality. Formal equality would merely allow disabled children to apply for admission; substantive equality requires dismantling the structural and institutional barriers that prevent meaningful participation in educational spaces.

Another transformative aspect of the ruling is its recognition of the doctrine of reasonable accommodation. Rather than expecting disabled children to adjust themselves to inaccessible educational systems, the judgment places responsibility upon institutions to become inclusive and responsive to diverse educational needs.

The decision also contributes significantly to the evolution of disability rights jurisprudence in India by rejecting bureaucratic and procedural formalism when dealing with vulnerable children. The Court recognised that rigid adherence to age norms, infrastructural limitations, or admission procedures cannot override constitutional guarantees of dignity, equality, and educational opportunity.

Importantly, the ruling departs from traditional charity-based understandings of disability and instead adopts a rights-based framework grounded in inclusion, autonomy, and equal citizenship.

The judgment also carries broader implications for private educational institutions across India. In an increasingly privatised educational landscape, vulnerable groups are often excluded through administrative and procedural barriers. The present decision acts as an important constitutional safeguard against such exclusionary practices.

The ruling further aligns with the principles embodied in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), which recognises inclusive education as a fundamental human right requiring equal participation within mainstream educational systems.

At a broader constitutional level, the judgment reinforces that schools are not merely academic institutions but constitutional spaces where values of equality, dignity, fraternity, and social justice must be realised in practice.

The decision therefore stands as a powerful affirmation that children with disabilities cannot be excluded from educational opportunities on the basis of inconvenience, inflexible procedures, or institutional reluctance. The Constitution requires accommodation, accessibility, and meaningful inclusion — not exclusion disguised as administrative limitation.

Read the judgement

Bombay HC favours aspiring candidates with cerebral palsy for admission to MBBS; Orders re-constitution of Medical Board with 2 Neuro-specialists [Judgement Included]

Dear colleagues,

This petition by two candidates with cerebral palsy who are aspiring to become doctors/ surgeons revolves around three larger questions often faced by many candidates with disabilities aspiring to be doctors:

(a) Whether a person with cerebral palsy can be a doctor?
(b) Whether the 40-70% disability criteria set by MCI for admission to MBBS courses is constitutionally valid ?
(c) Whether  a team of ophthalmologist, a pathologist, an orthopaedic, a general physician and a surgeon can assess the disability of a person with cerebral palsy in absence of a neuro specialist?

The Medical Board set up by State Directorate of Medical Education and Research mechanically assessed the candidates above 70% disability looking at the etiology of their disability i.e. cerebral palsy. The Board did not have neuro-specialists. Hon'ble Bench ordered to re-examine the candidates citing that the Medical Board was not competent to even assess the candidates with cerebral palsy. The court expressed that the Medical Board should include two doctors who have a specialization in neuroscience and asked for re-constitution of the same to assess the disability and to keep two seats vacant for them.  However, it seems the judgement doesn't address the impugned criteria of 40-70% disability!  Another area that is worth our concern is the tendency of authorities to adjust candidates with disabilities in disability quota even when the candidates have scored higher marks in the common entrance test like general candidates. This must be checked at every stage.

It is pertinent to mention that the candidates did not have functional impediment of upper limbs, they had a restriction of the lower limbs while walking. However, since the disability is a result of cerebral palsy, the medical board often indicates all four limbs involved. Same is the case with the List of identified posts by Govt. of India wherein the assessment or identification doesn't highlight the functional abilities as it mechanically goes with categories as One Arm, One Leg, Both Legs. Merely on the basis of slight involvement of limbs the candidates are declared ineligible even where the affected limb hasn't lost its functional competence. (Eg. a person with a deformed feet but with no functional limitation in walking is declared as ineligible for a post not meant for both leg affected candidate.) These inconsistencies in the list of identified jobs and their mechanical implementation by departments is causing more harm than good.

Click here for the Combined Court Order dt 22 Aug 2016 in WP(C) 9299/2016 titled Rajnandinee P. Mane Versus State of Maharashtra and Ors.  ;  WP(C) 9556/2016 titled Rutuja D. Raut Vs. State of Maharashtra and Ors. 

Here is the brief coverage by Times of India of this specific case.

Can a student with cerebral palsy become a doctor?

Girl with Cerebral Palsy gets HC nod to pursue medicine
 

Indian Currency not friendly to Blind, NAB files petition in Bombay High Court

Dear Colleagues,

Coins of various denominations and notes of Rs 100 and Rs 500 have no different identification marks which will help blind persons in differentiating among them claims a petition filed by the National Association for Blind (NAB), before the Bombay High Court. Advocate Uday Warunjikar, who has moved the petition, said: "Under provisions of the Persons with Disabilities Act, there are various provisions which have been made by the government for safeguarding the interest of the disabled. Several provisions are also there for ensuring a disable-friendly environment. However, in the present coins and notes it is difficult for persons who are blind or with low vision to differentiate between them."

The petition states that the problems of identification have been aggravated in the last few years. Earlier, blind or low vision person were easily able to identify coins and notes. There were unique marks on each coin; some coins were raised/embossed and tactile. Moreover, on a written request sent by RBI and Mint asking for feedback from NAB on the shape of coins and notes. A detailed suggestion was forwarded to the government in which it was said that there is no much difference between Rs 100 and Rs 500 notes. Coins of Rs 2, Rs 1 and Rs 50 paise are similar, there should be coins with proper borders, different designs, shapes, different textures for avoiding confusion, nothing is being done.

The plea says the suggestions were given last year and it was expected that appropriate decision would be taken. However, till now nothing is being done to address the issue. Earlier, the association would teach blind persons to identify currency notes. Now, it has become difficult to educate them. The petition prays for directions to the authorities to place on record steps it has taken to protect the rights of blind persons to have access to information about the currency notes and coins. Direct the respondents to make changes in the currency notes and coins to help blind persons easily identify them.

Source: DNA