MoRTH directed by CCPD Court to remove bottlenecks in verifying vehicle ownership type by NHAI for issuing Exempted Fastag to Persons with Disabilities.

Court:                 Chief Commissioner for Persons with Disabilities

Presided By:     Ms. Upma Srivastava, Commissioner

Case No.:            13203/1092/2022

Case Title:          Githin Madhu Vs. The Chairman, NHAI & Anr.

Date of Order:   24.08.2022

Case in Brief:

In the instant case,  Mr. Githin Madhu- a person with vision impairment had applied online along with all the requisite documents for Exempted FASTag for his vehicle on the website https://exemptedfastag.nhai.org/Exemptedfastag/, the official website of National Highways Authority of India (NHAI). The regional office of NHAI in Kerala, however, rejected his application. 

When the complainant contacted the regional office on phone, he was told to him that NHAI doesn't have facility to verify the data base of RC issued by the Motor Vehicles department (parivahan database) to check the ownership as divyangjan online. Also the  physcial copy of the Vehicle RC (Registration Certificate) do not carry the information about ownership type.

The Court felt that this was precisely due to mismanagement and  lack of coordination between the NHAI and the Ministry of Road Transport, Govt. of India which made persons with disabilities to run from one office to the other merely to prove their ownership type of vehicle as Divyangjan and in turn were facing harassment in getting the benefit granted to them by Govt. of India. 

The exempted FASTag is provided to persons with disabilites in two cases:

(a) The vehicle is registered as Ownership type as "Divyangjan".

(b) The vehicle is designed, constructed or  adapted for the use of persons with disabilities (divyangjan)

During the course of hearing, the Exempted FASTag was provided to the complainant and the complainant informed that his grienvance is settled.  However, the court felt that the issue that still persist is related to trouble that persons with disabilities have to face in order to obtain exempted category FASTag.  It was also shared that while vehicle designed  or constructed for use by persons wiht disabiliteis are registered in RC as "Adapted Vehicles"  (formerly Invalid Carriages), however, for vehicle registered under ownership as Divyangjan this status was not mentioned in the RC. Thus the officials of NHAI were not able to verify the ownership status  from the RCs of the vehicle and they did not have access to the parivahan data base to very the same, resulting in rejection of the applications made by such candidates with disabilities.

Considering the facts and for making the system more accesssible for persons with disabilities, the court thus passed an order endorsing a copy to the Ministry of Road Transport and Highways,  to grant access to the online portal  www.vahan.parivahan.gov.in to NHAI so that the Ownership Type status of Divyanjan  could be verified online for the purpose of issuing FASTags to persons with disabilities and they are not made to run from one office to the other to prove their vehicle ownership type.  

Court has sought an Compliance Report from the Ministry of Transport & Highways within 3 months of the passing of the order.

Read the order embedded below:

Court of CCPD directs Practo Technologies to make its website & App fully accessible for persons with disabilities within 6 months, also holds that Min. of Health is the domain regulator

Court:               Chief Commissioner for Persons with Disabilities, India

Presided by:     Ms. Upma Srivastava, Commissioner 

Case No.:         13205/1102/2022

Case Title:        Rahul Bajaj Vs. Practo Technologies Pvt. Ltd. [PTPL] & Others.

Date of Order:  24 August 2022

Next Date of Hearing cum Compliance:  20 September 2022

Subject: Inaccessibility of Website, Mobile and Tablet and non-compliance with the standards of accessibility as prescribed under rules.

Brief: 

The Court of Chief Commissioner for Persons with Disabilities in this important order stressed that the  private establishments are also bound by the provisions of the Rights of Persons with Disabilities (RPwD Act) 2016. 

The  Court of CCPD was hearing a complaint filed by a lawyer with 100% visual impairment, Rahul Bajaj, on March 22, 2022 regarding the website and app being inaccessible and not in compliance with accessibility standards. The complainant  had submitted that the home screen of the app was unorganised and inaccessible with screen reading software, some buttons were not labelled and others had “nonsensical labels” like “tertiary half one image label”. Complainant also said Practo was not in compliance with Section 46 of the Rights of Persons with Disabilities (PwD) Act, 2016, which sets a two-year timeline for service providers “whether government or private” to provide services in accordance with Central government accessibility rules.

The CCPD Court  ordered Practo, the online healthcare service provider, to make its website and app fully accessible for the disabled, affirming that legal requirements and guidelines on accessibility applied to private companies and establishments as well.

The Court recommmended that Respondent No. 1, i.e. Practo Technologies Pvt. Ltd. shall comply with the government guidelines and shall make necessary modifications within 6 months and not later than 9 months from receiving the copy of this Recommendation Order, to its app and other Information & Communication Technology platforms to make such platforms accessible for divyangjan.

Practo   Practo  in its reply had denied the allegations and submitted that it was not bound by the guidelines that require establishments to provide accessible services, however, it expressed willingness to make its platform accessible for persons with disabilities and sought nine months to make the changes as it involved “severe engineering efforts”.

Referring to Section 46, the court said: “Mere reading of this Section leaves no doubt that the provision is applicable on private establishments as well.” The court also said that Rule 15 of the Rights of Persons with Disabilities Rules, 2017 made standards for physical environment, transport and ICT mandatory for every establishment.

Court of CCPD also recommended that the Director-General of Health Services under the Health Ministry should ensure that Practo was accessible for Persons with Disabilities being the domain regulator under the law. 

The court has fixed the next hearing for compliance and to monitor the implementation of the statutes related to accessibility as 20 Sep 2022, considering the wider social aspect of the issue of accessibility. 

Read the order embedded below:

Delhi HC orders appointment of a Person with Visual Disability to IAS with consequential seniority

Court: Delhi High Court

Bench: Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela

Case No.: WP(C) 572 of 2020

Case Title: Vishv Mohan V. DoPT & Others

Date of Judgement: 22.08.2022

Brief

While ordering Mr. Vishv Mohan, a candidate with visual impairment  of 2015 batch, to be appointed to the Indian Administrative Service (IAS) and setting aside Appellate Medical Board Report as being inconclusive, the Delhi High Court observed that a welfare State is expected to create conditions which are conducive to citizens with disabilities by providing them avenues for public employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The  State is enjoined to create conditions and opportunities for the welfare and betterment of the citizens with disabilities and those who are differently abled.

"The Central Government had enacted the said Act to ensure that the citizens falling in this category are not deprived of their rightful means of livelihood in respect of public employment. It is with a view to give impetus to the beneficial provisions of the said Act, that the Central Government and the State Governments created various avenues for public employment of such differently abled citizens." said the Court.

The Court dealt with a plea filed by a candidate with visual  disability for recruitment of All India Service for the year 2015.  The petitioner had challenged the report of the Appellate Medical Board of Dr. Ram Manohar Lohia Hospital, conducted in compliance of High Court's order whereby the Medical Board consisting of three senior doctors had concluded that the Petitioner was having visual disability of 20% only. Whereas several other competent medical boards and one medical board of AIIMS Delhi had also ceritified him in the past with more than 60% visual disability. 

The Court expressed its astonishment as to how the AIIMS Delhi could assess them 20% disability and 60-75% disability in two different sittings.

While there was no dispute about the fact that the Petitioner suffered from visual impairment namely 'high myopia with Isometropic Amblyopia', the Court dealt with the issue as to whether the Petitioner was suffering from a visual impairment which would be greater than 40%. Having 40% visual impairment would entitle the petitioner to be treated as a visually disabled category candidate.

It was the Petitioner's case that he was a meritorious candidate who had secured a total of 828 marks in the examination of the Civil Services Examination 2014 with All India Rank of 1173 and 5th rank holder in the disabled category.

Perusing the consistent medical reports of past several years wherein his disability ws assessed higher than 60% by competent medical boards in the disability certificates issued to the petitioner, the Court was of the view that the Petitioner fell within the definition as contained in sec. 2(b)(ii) of the PWD Act.

The Court was of the opinion that the Petitioner was not only a person with visual impairment to the extent of 60% but also a "brilliant candidate" who had secured 5th rank in his own category and was also positioned at All India Rank No.1173.

"In such circumstances, depriving the Petitioner of public employment, that too, at the level of Indian Administrative Services, on such inconclusive medical report dated 17.12.2018, is not only unfair, unjust but also whimsical and arbitrary. We hold so," the Court observed.

Setting aside the impugned Appellate Medical Board Report, the Court directed the respondents to take the assessment of the percentage of disability of the Petitioner at 60% and also consider him qualified so far as the medical criteria is concerned.

"As a consequence, Respondent No.1/DoPT is directed to allot the cadre and appoint the Petitioner in Indian Administrative Service (2015 Batch) considering him eligible in so far as the Central Civil Examination, 2014 is concerned with all consequential benefits in respect of seniority and promotion on notional basis. Since the Petitioner  did not discharge any duties, we refrain from granting any back wages," the Court added while disposing of the petition in favour of the petitioner. 

Read the embedded order dated 22 Aug 2022 below:-

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: