Tuesday, September 30, 2008

Another girl denied admission to medical course -this time due to higher %age of disability

Dear friends,

I want to share another case of neglect and improper application of disability laws, against persons with disabilities rather than in favour of.

The girl, Pooja Dubey, quite brilliant though, has been denied admission on the grounds of her 80% degree of disability. While a national institute has declared her fit, the authority do not believe it. The girl emphasizes that the degree is with respect to the disability (Post Polio Residual Paralysis) in her right leg only while she is competent to undergo the course, the medical institute argues that it is with respect to whole body!!!

Another excuse to disregard the Act! Though Mumbai High Court has asked for re-examination of the candidate and the possibilities are that she will be taken in as the same institute has already declared her fit to undergo the course before appearing for the entrance test! I am concerned that the Learned Judges went on to ask her that what she will do in emergency - raising a question on her abilities ! I feel the courts should refrain from such targeting questions when her assessment on record confirms her capabilities.


Here is the news

HC asks medical body to decide disabled candidate
Mayura Janwalkar Tuesday, September 30, 2008 03:20 IST

Pooja Dubey was denied admission due to a handicap in her right leg.

Pooja Dubey, 17, moved the Bombay high court after being denied admission in the MBBS course owing to a handicap in her right leg. She probably drew hope from the case of Dr Saroj Yadav who despite the same handicap in her arm was allowed a post-graduate seat in the radiology faculty by the court earlier this month.

Although Yadav left the court premises with all hurdles on her way to becoming a radiologist removed, Dubey’s fate still remains uncertain. The case of Mira-Road resident Dubey is, however, not identical to that if Yadav. Dubey who suffers from post polio residual paralysis of her right limb between her thigh and her knee, secured the 15th rank among handicapped candidates in the medical CET conducted in May this year.

She and her father Bhanu Prakash Dubey hit the panic button after her name did not appear even on the second list of selected candidates issued in August. Her father had written several letters to the Directorate of Medical Education and Research (DMER). He also submitted a certificate from the All India Institute of Physical, Medical and Rehabilitation stating that Dubey was fit to undergo training in the Health Science course that she had opted for.
However, the DMER had refused her admission on the ground that the percentage of her disability was 80%. As per the DMER and the Medical Counsel of India, a disability of more than 40% and less than 70% was permissible for pursuing a medical course.

Dubey’s advocates Mayur Khandeparkar and Swapna Kode contended that she had been examined by the medical board of the DMER prior to seeking admission and nowhere during the admission procedure was Dubey informed that she was ineligible to pursue the course.


After hearing the case on Monday, chief justice Swatanter Kumar and justice SA Bobade directed the DMER to reassess Dubey’s case and disposed off the petition. “If the competent authority (DMER) is saying that the disability can hamper your (Dubey’s) performance, how can the court say otherwise?” Kumar said. He asked, “What will you do in case of emergency?” Dubey’s dream of becoming a doctor, now hinges on the decision of the DMER that has to re-consider her case in a week’s time.

Khandeparkar told the court that Dubey under the Persons with Disabilities Act, 1995, had a right to seek admission to the course. He added that her left leg was fully functional and the 80% disability, as stated by the DMER, was restricted to her right leg. Bobade, however, remarked that the percentage of disability was not just restricted to the affected organ but was with reference to the whole body.

Wednesday, September 24, 2008

Why principal of "Equal Pay for Equal Work" doesn't apply to Special Educators at NGOs vis-a-vis National Institutes on Disability?

Dear Friends,

I want to share with you a recent judgement of the Double Bench of Delhi High Court in which the petition was disallowed by the Honorable court.

Appended is the detailed judgement, for a post mortem of the case as to what went wrong. I also want ot explore some additional grounds with which we could approach next higher court to seek redressal.

No doubt the matter was genuine and it is Government of India that is responsible for the empowerment and welfare of people with disabilities more particularly providing free & quality education up to the age of 18. It can be well imagined that those who are employed to work to empower and train PWDs needs to be reasonably provided for if we want a true rehabilitation. Having this in mind the petition was prepared on the grouds of Equal pay for Equal Work between employees of NGOs and Employees of National Institute on Disabilities.

However, the interpretation of the court is little on the other extreme. Perhaps the grounds that were taken may not have been very convincing and additional grounds must be added.

You may have a view different from this and may well suggest me some better ideas. So leaving it to your reason! Here goes the judgement:

IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 31.10.2007Judgment delivered on: 04.07.2008

W.P. (C ) No. 2040/199504.07.2008

All India Confederation of the Blind ... Petitioner
Through: Mr. P.N. Lekhi, Sr. Advocate with Mr.Rajan Chaurasia andMr. Jaspreet Singh Rai, Advs.

versus

Union of India and Others ..... Respondents
Through: Mr. Rajive Mehra, Adv.

CORAM:
HON'BLE MR. JUSTICE A.K. SIKRIHON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papersmay be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? YES

VIPIN SANGHI, J.

1.In this petition under Article 226 of the Constitution of India, thepetitioner seeks a writ of mandamus, directing the respondent not to treat teachers/employees of organisations run by the petitioner differently from teachers/employees of similar organisations run by the respondents in the matter of pay scales, on the ground that the nature of work undertaken by both classes of teachers/employees are identical. A consequential declaration is sought that the pay sanctioned for the employees of the petitioner is arbitrary,discriminatory and unreasonable.

2.The petitioner society is registered under Andhra Pradesh (Telengana Area)Public Societies Registration Act, 1950 and has 18 affiliates all over thecountry providing educational and rehabilitative services for the blind. The petitioner states that it is an organisation which provides a wide range ofeducational, vocational and adjustment-training facilities, both to the congenitally blind as well as persons who may have developed visual handicaps later in life, in a systematic manner.

3.Union of India (Respondent No.1) has framed a scheme which provides for assistance in the form of grant-in-aid to eligible voluntary organisations/institutions to cover upto 90% of the expenditure incurred byvoluntary organisations such as the petitioner, under specified heads, including salaries of the staff employed by such organisations. With the help of such assistance the petitioner claims that it has been able to run educational institutions like Captain Chandan Lal School for the Blind and The Shorthand Training Programme at Rohini. The Respondent No.1 also runs and funds organisations and institutes similar to that of the Petitioner, like National Institute of the Visually Handicapped, Dehradun (hereinafter referred to as NIVH). Respondent No.2, being the Govt. of National Capital Territory of Delhi, runs similar government schools for the blind.

4.The petitioner submits that the educational curriculum of the blind is farmore onerous and demanding than teaching students not suffering from any such disability and this system of education is known as "Special Education". However, the petitioner contends that staff employed by the petitioner get 1/3rd the pay sanctioned to staff of the NIVH and the government schools for the blind run by the Respondent No.2. Thus, the Petitioner craves parity in payscales invoking the principle of equal pay for equal work. It is also the grievance of the Petitioner that the policy formed by the Government only provides for a consolidated salary and no scale of pay is prescribed, nor anyother allowances/benefits are provided for.

5.The Petitioner has placed on record various comparative charts showing the difference in pay between the staff employed by NIVH and Respondent No.2 on the one hand, and the staff employed by the petitioner on the other hand. The Petitioner in order to further its submissions takes aid of the ?Scheme of Integrated Education for the Disabled Children 1992?, which provides for assistance to State Governments/UT Administrations/autonomous organisationshaving experience in the field of education and/or rehabilitation of the disabled, the agencies through which the said scheme is purported to be implemented. The said scheme seeks to provide disabled students with an opportunity to integrate in the mainstream educational system in the form of common schools in place of special schools. The scheme further provides (a)teacher-pupil ratio of 1:8 (b) basic qualifications required for appointment as Special Teachers, and (c) scales of pay for such special teachers along with special allowance admissible to them. The petitioner relies upon the stipulation regarding scales of pay, as laid down in the said scheme in Clause 12.3, whichstates that ?The same scales of pay as available to the teachers of the corresponding category in that State/UT will be given to Special Teachers?. It further provides for payment of special pay, in recognition of the special type of duties that such teachers discharge.

6.The petitioner pleads that the work undertaken by it is facing insurmountable difficulties regarding retention of staff, since inferior scales of pay do not make employment under the petitioner an attractive proposition. The grant-in-aid granted by the Respondent no.1 can only go upto 90% of the approved expenditure incurred by it since, under the policy, specific basic pay is sanctioned for each type of teacher/employee employed by voluntary organisations and the grants are admitted, accordingly. The petitioner pleads that it doesnot have the funds to make the balance 10% payment to its employees and continue the work started by it. The petitioner claims that in the face of this resource crunch, it is confronted with the prospect of having to close down its services.

7.In its reply respondent No.1 has stated that the grant-in-aid is sanctioned upto 90% of the expenditure approved by the Ministry and not upto 90% of the total expenditure incurred by the voluntary organisation. The grant-in-aid covers 90% of the approved basic pay of the staff employed by a Voluntary Organisation, and that there is no provision for allowance like DA, HRA etc.Furthermore, the respondent submits that the scheme under which grant-in-aid is considered, prescribes compensation in different ranges depending upon the qualification of the incumbent. No parity can be drawn between the employees of autonomous organisations fully aided by the Government and under its administrative and financial control, and employees of a voluntary organisation to which Government provides only limited assistance. The Respondent also contends that one of the conditions of the said scheme is that the grant-in-aid may be considered only upto 90% of the expenditure approved by the Ministry and is admissible to such a voluntary organisation, which has the capability of meeting the remaining expenditure either through its own resources or through voluntary effort. If an organisation is not able to meet its balance expenditure, it is not eligible for grant-in-aid from the Ministry. The respondent points out that the petitioner had made the proposal for getting grant-in-aid and also receives the amount after expressly accepting this condition.

8.The petitioner in its rejoinder maintains that the employees of the organisation run by it are entitled to parity in all emoluments in addition to basic pay. The petitioner maintains that the disparity in the pay scale is apparent from a bare perusal of the appended comparison charts, and therefore, it claims equality of pay.

9.By an order dated 20.01.1997, this Court had asked the petitioner to file an affidavit bringing out the comparison between the pay of employees of the petitioner and the respondent and their work and responsibilities. We have taken the affidavit dated 06.02.1997 filed in response to that order into consideration. The Union of India, during the pendency of the petition, cameout with a new comprehensive scheme, and an additional affidavit in this respect was allowed to be filed vide order dated 09.09.2002. The Union of India has filed a comprehensive affidavit dated 20.09.2002 of Sh. P.K. Ravi, UnderSecretary to the Govt. of India, Ministry of Social Justice and Empowerment. Inthe said affidavit the respondent submits that at the time when the petition was filed, the Ministry of Social Justice and Empowerment (formerly known as?Ministry of Welfare?) had five distinct schemes, dealing with the welfare of handicapped/disabled persons through non-government organisations. Of these fiveschemes, four schemes envisaged, inter alia, the grant of aid for salaries/honorarium to be paid to the employees/personnel of the NGOs. At thetime of filing of the petition the petitioner NGO was receiving grants-in-aid towards contribution in respect of salaries/ honourarium for its personnel undertwo schemes, viz. ?Scheme of Assistance to Organizations for the Disabled? forits project called ?Braille Shorthand and Typing Training Programme?, and under?Scheme of Assistance to Voluntary Organizations for Special School for Handicapped Children? for its Chander Lal Special School for Blind.

10.A new umbrella scheme called ?Scheme to Promote Voluntary Action for Persons with Disabilities? was introduced and made effective from 1999-2000, whichsubstituted the earlier schemes under which petitioner was receiving aid. Thesaid scheme was formulated to fulfill the obligations cast on the Governmentunder the Persons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act, 1995. The respondent submitted that theassistance/grant provided by the Central Government was not unlimited and wastendered and fixed on the twin criteria of firstly, merits of each case andsecondly, availability of the funds from the overall budget allocated forwelfare activities for physically handicapped/disabled person. It has beenstated that when the grant-in-aid was sanctioned to the petitioner, it was madeclear that ?the grant-in-aid from the Central Government will be tendered on themerits of each case and will not exceed 90% of the non-recurring and recurringexpenditure. The remaining expenditure will be normally borne by theorganisation?. The respondent emphasizes that the figure of 90% grant-in-aid iswith reference to the eligible and approved amount of expenditure, and not thetotal amount of its expenditure, incurred by the NGO. Therefore, the 90% of theapproved allocation was the ceiling limit under the earlier scheme, which couldnot be enhanced any further under the schemes which were prevalent earlier aswell as the new scheme. However, under the new scheme the budgetary allocationshave been substantially increased in comparison to the allocation prevalent atthe time of the filing of the petition. Over the years the number oforganisations receiving aid have gone up. It is also submitted that since statehas limited resources and private organisations are capable of raising their ownresources, unnecessary burden should not be imposed upon the Respondent. It isalso submitted that the Respondent has never questioned the desirability orentitlement to higher honorarium of the personnel employed by the NGOs.

11.The respondents further submit that, in any event, the qualificationsprescribed for employees of voluntary organisations are more relaxed whencompared to Government institutions and institutions such as NIVH. In NIVHthere are specific requirements relating to various aspects such as the numberof posts in the organisation; scale of pay; whether the post is a selection postor a non-selection post; age limit for direct recruitment; method ofrecruitment; educational qualification for direct recruitment; experiencerequired for direct recruitment etc. In clear contradistinction, the schemesunder which the grants-in-aid are given to the voluntary organisations do notcontemplate or provide any rules for recruitment of finalisation of pay scalesfor the personnel of such organisations. Therefore, there can be no parity inposts or in pay. Further, having agreed to abide by the terms and conditions ofthe scheme, and having obtained an advantage under the same, it is no longeropen to the petitioner to question the norms of assistance under the scheme.

12.From the record, it appears that the qualifications/ experience required for teachers /employees of NIVH/Government schools were also higher than those laiddown for a voluntary organisations. We may reproduce hereinbelow the compositeposition extracted from Annexure P-4 to the writ petition, which is as follows:

Sl. No.Name of the postQualification fixed by Welfare Ministry for voluntary organizationsQualification fixed by N.I.V.H.1.Braille InstructorGraduate from recognized University. Sound knowledge of Braille.Degree from a recognised Indian or Foreign University (relaxable in the case ofblind candidates otherwise well qualified. Sound knowledge of Bharati andStandard English Braille including the ability to read and write fluentlyEnglish and at least one Indian language.2 years teaching experience.2.Mobility Training InstructorDegree/Diploma/ Certificate in Orientation of MobilityFormal Training from and institute of repote and 3 years experience of work withthe blind.3.Typing Instructor/ Vocational InstructorMatriculation or equivalent Certificate course in related trade.Matriculation or equivalent examination.Typing speed in English of 40 words per minute.Typing speed in Hindi 30 words per minute.2 years experience of teaching Hindi and English Typewriting.4.Teacher/Trained Graduate TeacherDegree from a recognized University.Decree in Teaching of Handicapped.Graduate in Art/Science/Sanskrit (according to the nature of vacancy).Diploma in Teaching or Equivalent 2 years experience as teacher preferably inany institution for the blind, or Diploma in Teaching the Blind.Knowledge of Bharati and Standard English Braille (Visually Handicapped no bar)5.Junior Teacher/ Asstt. TeacherMatric.Diploma in Teaching or Handicapped.High School, Higher Secondary School or equivalent.Junior Training Certificate or equivalent or Montessorie trained.2 years experience as a teacher.Diploma or Certificate in Teaching the Blind.6.CookExperience in CookingThorough knowledge of cooking Vegetarian and Non-vegetarian meals.At least 3 years experience in cooking.7.Braille Shorthand Instructor (Hindi)/ Braille InstructorA good Bachelor's Degree (relaxable in the case of candidates otherwise wellqualified)Thorough knowledge of Bharati Braille.Hindi Braille Shorthand speed 80 w.p.m.2 years teaching experience of Hindi Braille Shorthand in a reputableInstitution.8.Music Instructor/ Music TeacherSound knowledge of vocal and Instrumental Music and ability to teach.Decree or Diploma in Music.9.Chokidar/ WatchmanNo qualification is required10.SweeperNo qualification is required11.AyaMatriculation/ Hr. Sec.

13. The additional affidavit dated 06.02.1997 filed by the petitioner gives thedifference in the pay in respect of different categories of staff in thepetitioner organisation and in the corresponding governmental organisations.There is no doubt that the governmental pay/pay scales are higher than thosepaid by the petitioner. The question is, can the petitioner demand as a matterof an enforceable right that the respondents provide the grants-in-aid to theextent that the petitioner is able to pay the same scale of salary and otherallowances, such as DA, HRA etc. as is admissible to personnel employed inGovernment Organisations/Autonomous Organisations such as the NIVH. Both sideshave relied upon a few decisions which shall be dealt with presently.

14. Having considered the submissions of the parties, we are not inclined toagree with the aforesaid submission of the petitioners. Firstly, we may note that the employees of the petitioner organisation are not the employees of theGovernment. The two employer being distinct, resort to Article 14 to seekparity of pay is, therefore, misconceived. Admittedly, the educational qualifications and experience for the various posts prescribed by the Government for institutions established, run and managed by it or for autonomous organisations such as the NIVH are higher than those prescribed for similarposts in the NGOs/voluntary organisations such as the petitioner. It is settled law that even where the employer is the same, to be able to seek pay parity onthe principle of ?equal pay for equal work?, one of the essential ingredientsthat is required to be met is that the educational qualifications/experience prescribed in the similar posts are the same. Since this condition is not met,this is another reason why the employees of the petitioner organisation cannotseek pay parity with the employees of Government established, run and managedschools and of autonomous institutions. Reference may be made to the decisionof the Supreme Court in ?S.C. Chandra v. State of Jharkhand? (2007) 8 SCC 279.In CA Nos.6595, 6602-03 and 6601 of 2005, the writ petitioners-appellant, whowere serving as secondary school teachers in a school sought parity in their payscales with pay scale of Government secondary school teachers or with Grade-Iand Grade-II Clerks of Bharat Cooking Coal Limited (BCCL). They also soughtfacilities such as provident fund, gratuity, pension and other retiral benefitsand also prayed that the State Government should take over the management ofRamkanali School under the provisions of the Bihar Non-Government SecondarySchools (Taking Over the Management and Control) Act, 1981. The BCCL contestedthe aforesaid claims on the ground that the said school was not owned by BCCL.It was run by a managing committee. The petitioners were not appointed by BCCLand were not employees of BCCL. BCCL used to release the non-recurring grantsto the privately managed schools on the recommendations of the welfare committeesubject to certain conditions. This non-recurring grant and aid did not makethe school a part of the management of BCCL and any teacher in such privatelymanaged school could not be said to be a employee of BCCL thereby entitling himto all benefits as are available to regular employees of BCCL.

15. From the aforesaid, it would be seen that the factual background in S.C.Chandra (supra) was quite similar to the one in hand. The Supreme Courtdismissed the appeal preferred by the petitioner-appellant S.C. Chandra, againstthe decision of the Division Bench of the Jharkhand High Court. There are twoconcurring judgments, one rendered by A.K. Mathur, J. and the other by MarkandeyKatju, J. In his decision A.K. Mathur, J. observed:?

11...................................... Firstly, the school is not beingmanaged by the BCCL as from the facts it is more than clear that the BCCL wasonly extending financial assistance from time to time. By that it cannot besaddled with the liability to pay these teachers of the school as being paid tothe clerks working with BCCL or in the Government of Jharkhand. It isessentially a school managed by a body independent of the management of BCCL.Therefore, BCCL cannot be saddled with the responsibilities of granting theteachers the salaries equated to that of the clerks working in BCCL.
12. Learned counsel for the appellants have relied on Article 39(d) of theConstitution. Article 39(d) does not mean that all the teachers working in theschool should be equated with the clerks in the BCCL or Government of Jharkhand.For application of the principle of equal pay for equal work. There should betotal identity between both groups i.e. the teachers of the school on the onehand and the clerks in BCCL, and as such the teachers cannot be equated with theclerks of the State Government or of the BCCL. The question of application ofArticle 39(d) of the Constitution has recently been interpreted by this Court inState of Haryana and Ors. v. Charanjit Singh and Ors. [(2006) 9 SCC 321] whereintheir Lordships have put the entire controversy to rest and held that theprinciple, 'equal pay for equal work' must satisfy the test that the incumbentsare performing equal and identical work as discharged by employees against whomthe equal pay is claimed. Their Lordships have reviewed all the cases bearing onthe subject and after a detailed discussion have finally put the controversy torest that the persons who claimed the parity should satisfy the court that theconditions are identical and equal and same duties are being discharged by them.Though a number of cases were cited for our consideration but no useful purposewill be served as in Charanjit Singh (supra) all these cases have been reviewedby this Court. More so, when we have already held that the appellants are notthe employees of BCCL, there is no question seeking any parity of the pay withthat of the clerks of BCCL.?

16.Markandey Katju, J. in his concurring view takes note of various otherdecisions of the Supreme Court including the decision in ?State of Haryana v.Tilak Raj? (2003) 6 SCC 123, ?State of Haryana and Ors. v. Charanjit Singh andOrs.? (2006) 9 SCC 321, wherein it has been held that the principle of ?equalpay for equal work? can be invoked only if there is a complete and wholesaleidentity between two groups and that even if the employees of the two groups aredoing identical work, they cannot be granted equal pay, if there is no completeand wholesale identity. The two groups of employees may be doing the same work,yet they may be given different pay scales if the educational qualifications aredifferent or if the nature of job, responsibilities, experience, method ofrecruitment etc. are different. His Lordship proceeded to hold that: -?
13............... fixing pay scales by Courts by applying the principle ofequal pay for equal work upsets the high Constitutional principle of separationof powers between the three organs of the State. Realizing this, this Court hasin recent years avoided applying the principle of equal pay for equal work,unless there is complete and wholesale identity between the two groups (andthere too the matter should be sent for examination by an expert committeeappointed by the Government instead of the Court itself granting higher pay).
14. It is well settled by the Supreme Court that only because the nature of workis the same, irrespective of educational qualification, mode of appointment,experience and other relevant factors, the principle of equal pay for equal workcannot apply vide Government of West Bengal v. Tarun K. Roy and others, (2004) 1SCC 347.?

17.In fact, what the petitioner is seeking is the enhancement of the grant-in-aid provided by the Government. The Government is granting aid which, interalia, covers upto 90% of the approved expenditure incurred by the voluntaryorganisations towards the basic salary paid to the staff. The voluntaryorganisations have to meet the remaining expenditure incurred, inter alia,towards the salary of the staff from out of its own resources. This policy ofthe government merely lays down a reasonable formula evolved by the Government to arrive at the figure of grant-in-aid that it would provide to an organisationunder its scheme. It is open to the voluntary organisations to pay from its own resources to its staff not only the balance 10% basic salary, but also othercomponents such as DA, HRA, CCA, Gratuity etc. There is no prohibition against the voluntary organisations making payment to its staff of the aforesaid components over and above the payment of the basic salary.18.It is to be borne in mind that the Government has come out with variousschemes from time to time to encourage voluntary organisations/NGOs to undertake social causes, such as providing educational and vocational support to the disabled. The funds allocated by the Government are distributed amongst the various organisations, which are being managed independently, in order tofulfill its obligation to provide support to the disabled. It is for the Government to evolve its policy with regard to the extent of assistance that itmay render to voluntary organisations/NGOs. Such policies are devised keepingin view the availability of resources, the number of organisations deserving ofassistance, and other relevant factors. It is for the Government to evolve thecriteria on the basis of which the grants are to be disbursed. Of course, thecriteria has to be reasonable and cannot be arbitrary or discriminatory. Itcannot be said that the criteria fixed by the Government for disbursement ofgrant-in-aid, inter alia, being 90% of the basic salary of the staff of thevoluntary organisations/NGO is discriminatory or arbitrary. It is not thepetitioner's case that it has been discriminated against in the matter ofdisbursement of grant-in-aid when compared to any other similar organisation.The petitioner organisation cannot seek to compare itself with Government run schools and institutions such as the NIVH for the simple reason that Government run institutions and NIVH are wholly established, managed and run by the Government by following a transparent mechanism governed by a set of rules with regard to the number of sanctioned posts, the recruitment rules prescribing educational qualifications and experience criteria for such posts, the method of recruitment, discipline and conduct rules and the like, whereas the institutions run by the voluntary organisations/NGOs such as the petitioner are entirely established, run and managed by the concerned organisation, which are not bound to follow any set of rules, as aforesaid. The criteria fixed by the Government for disbursement of grant-in-aid can also not be said to be arbitrary. The object of grant-in-aid is not to meet the entire expenditure of the organisation under any particular head, but to provide financial assistance to the extent theresources of the Government permit.

19.We are not dealing with the question, whether the disparity in theeducational qualifications, which were prescribed by the Ministry of Welfare, isreasonable or not. That is not the challenge before us. The petitioner is notseeking parity in the prescription of educational qualifications/experiencerequirements or the recruitment rules in this petition.

20.Reliance placed on Clause 12.3 of the ?Scheme of Integrated Education for theDisabled Children 1992?, which states that the same scales of pay as availableto the teachers of the corresponding category in the State/UT will be given tospecial teachers, appears to be misplaced. Clause 4 of the same scheme showsthat the scheme makes a conscious distinction between State Government/UTAdministration/Autonomous Organisations of stature on the one hand, andvoluntary organisations on the other hand. While the scheme is to beimplemented though the State Governments/UT Administration/AutonomousOrganisations, the assistance of voluntary organisations may also be taken toimplement the scheme. The petitioner is a voluntary organisation. The saidscheme is primarily to be implemented by the Governments and by AutonomousOrganisations, and the prescription about salaries pertains to suchorganisations/institutions, and not to voluntary organisations.

21.Mr. P.N. Lekhi, learned senior counsel appearing for the petitioner hasplaced strong reliance on ?State of H.P. v. H.P. State Recognised and AidedSchools Managing Committees and Ors.? (1995) 4 SCC 507 in support of hissubmission. The question raised before the Supreme Court in this decision waswhether recognised and aided private schools were entitled to received grants-in-aid to meet 95% of the net expenditure to enable them to pay to the teachersemployed by them salary equal to that being paid to the counterparts of suchteachers in Government schools. The Supreme Court answered this question in theaffirmative i.e. in favour of the teachers seeking parity. The Court struckdown the maximum limit of grant-in-aid fixed by the Government in pursuance ofthe powers under Rule 47(2) of the Himachal Pradesh (Grant-in-Aid) Rules, whichprescribed a maximum limit on the amount of admissible grant-in-aid. On theface of it this decision appears to support the submission of Mr. Lekhi.However, on a deeper scrutiny one finds material differences in the facts andcircumstances of that case that the facts of the present case. The SupremeCourt while arriving at its decision took note of the fact that the CentralGovernment had appointed Kothari Commission to examine the service conditions ofthe teachers with the object of improving the standard of education in thecountry. Kothari Commission had, inter alia, recommended that the scales pf payof school teachers working under different managements such as government, localbodies or private management should be the same. Almost all the States in thecountry including the State of Himachal Pradesh had agreed to implement therecommendations of the Kothari Commission. The State of Haryana had alsofollowed the same policy. The State of Himachal Pradesh had framed theHimachal Pradesh (Grant-in-Aid) Rules in conformity with the recommendations ofthe Kothari Commission and Rules 45-Q and 45-J of the said Rules read asfollows:
?45-Q. Management shall introduce such scales of pay and allowances forteachers and to other staff members as are prescribed by the Government forcorresponding staff in government schools.45-J. That the income from subscription, endowments and other sources(excluding fees) suffices to ensure that the management can contribute at least5 per cent of the net expenditure from their own funds after the school isaided.?

22. Because of the aforesaid Rules, the Supreme Court held that the State ofHimachal Pradesh was committed to implement the Kothari Commissionrecommendations regarding parity in the pay scales of the teachers working inGovernment schools and the aided schools. The Government order passed underRule 47(2) of the Himachal Pradesh (Grant-in-Aid) Rules, which fixed the maximumlimit of the grant-in-aid to be provided to the aided schools, however, came inthe way of compliance of Rules 45-Q and 45-J, as aforesaid. The Court enforcedthe obligation of the State under Rules 45-Q and 45-J and as also theconstitutional obligation of the State to provide free education to childrentill they complete the age of 14 years and quashed the imposition of maximumlimit for the disbursement of grants-in-aid to the aided schools as beingarbitrary and unjustified. In the course of its judgment in paragraphs 8 and 9the Supreme Court noted as follows:?8. The aided schools teach the same syllabus and curriculum, prescribethe books and courses as per Government directions and prepare the students forsame examinations for which the students studying in government schools areprepared. The qualifications of the teachers are prescribed by the StateGovernment and the appointments are made with the approval of the StateGovernment. The fees levied and concessions allowed are strictly in accordancewith the instructions issued by the Education Department of the State Governmentfrom time to time. The Managing Committees of aided schools are approved by theState Government and two members of the Committee are appointed by the EducationDepartment. The service conditions of the teachers including disciplinaryproceedings and award of punishment etc. are governed by the Rules framed by theState Government.9. It is, thus, obvious that the State Government has a deep and pervasivecontrol on the aided schools. The government schools and the aided schools ?specially after the Kothari Commission Report ? have always been treated on apar...................................?(emphasis added)

23.The aforesaid extract highlights the difference in factual background in thesaid case from the facts of the present case. Unlike in the said case, thequalifications of the teachers prescribed for voluntary organisations and thoseprescribed for Government Organisations/Autonomous Institutions are remarkablydifferent. The appointments made by voluntary organisations do not require theapproval of the State Government. The fees levied or concessions allowed by thevoluntary organisations are not fixed under the instructions of the Government.The Government apparently has no role to play in the management of the voluntaryorganisations. The service conditions of the teachers including disciplinaryproceedings and award of punishment to the employees of voluntary organisationsare not governed by the rules framed by the State Government. It cannot be saidthat there is governmental control, much less a deep and pervasive control, onthe institutions run by voluntary organisations such as the petitioner.Therefore, this decision is of no avail to the petitioners. The decision of theSupreme Court in ?State of Punjab and Ors. v. Om Parkash Kaushal and Ors.?(1996) 5 SCC 325 relied upon by the petitioners is of no avail. In fact thisdecision supports the view that we are taking. With effect from 1.12.1967, onthe basis of the Kothari Commissions recommendation the pay scales of theteachers of the privately managed aided schools were revised and brought at parwith the teachers of the same status in the government service. The Punjablegislature enacted the Punjab Privately Managed Recognised Schools, Employees(Security of Service) Act, 1979. Section 7 of the said Act granted parity to theprivate teachers in the matter of scales of pay and Dearness Allowance with theGovernment teachers. This act came into force on 23.01.1981. Prior to thatunder executive instructions the teachers employed in privately managed aidedschools in the State of Punjab were given parity with Government teachers onlyin respect of pay scales and Dearness Allowances. The other conditions of service relating to the Government teachers were not extended to such teachersof privately managed government aided schools. In the year 1960, the Government issued instructions whereunder teachers with masters degree working in government schools, who had acquired qualifications of M.A./M.Sc./M.D. (thirddivision) became entitled to one increment, and those who acquired the saidqualification with first division and second division, became entitled to threeincrements. Subsequently in the year 1979, the Government withdrew the 1960instructions. The existing recipients of such benefits were, however, spared.The teachers of privately managed aided schools in the State of Punjab sought parity regarding pay scales and Dearness Allowances between private schoolteachers and Government teachers since 01.12.1967, on the ground that they had acquired the higher qualification prior to 1979, in terms of 1960 instructions.The Supreme Court rejected this contention on the ground that Section 7 of theaforesaid Act, which granted parity to private school teachers and teachers ofGovernment aided schools in the matter of scales of pay and Dearness Allowances with Government school teachers came into force only on 23.01.1981. Prior tothat, under executive instructions the teachers of privately run aided schoolswere given parity with Government teachers only in respect of pay scales and Dearness Allowances, and other conditions of service relating to the Government teachers were not extended to the respondents. In the present case, thepetitioners have not been able to show any provision of law which mandates thatit is the obligation of the State to pay the same salary to the teachers of voluntary organisations, working to educate the disabled and handicapped with the teachers working in Government schools and Autonomous Institutions.

24. The decision of the Supreme Court in ?State of U.P. and Anr. v. U.P.Polytechnic Diploma Shikshak Sangh and Anr.? (2001) 10 SCC 643 also relied uponby the petitioner also does not advance the case of the petitioners. The said decision is a short order, which merely applies its earlier decision in State ofH.P. (supra) to grant relief to the Assistant Lecturer in Government aided polytechnics, by holding that they would be entitled to the same scales asgranted to the Assistant Lecturers in Government polytechnics. Since we have distinguished the aforesaid decision in State of H.P. (supra), even thisdecision is of no avail to the petitioners.

25.The decision of the Supreme Court in ?State of Haryana and Ors. v. ChampaDevi and Ors.? (2002) 10 SCC 78 relied upon by the petitioners also is of noavail. This decision also goes contrary to the submission of the petitioners.While noticing that teachers of privately managed aided schools are entitled tothe same scale of pay and Dearness Allowances as teachers of Government schools,when it came to dealing with the other claims of the teachers of privatelymanaged aided schools which had been extended to Government employees undervarious circulars, the Supreme Court held that the High Court had committed anerror in granting those benefits to the employees of private aided schools. TheSupreme Court relied on its decision in Om Parkash Kaushal (supra), wherein theCourt had examined the question as to what is the meaning of ?parity inemployment? and came to the conclusion that all the incentives granted toemployees of Government cannot be claimed as a matter of right by the employeeunder private management, as that would not be within the expression ?parity inemployment?. The Court held that the scale of pay and Dearness Allowancegranted to a Government servant or to a teacher of a Government school can beclaimed as a matter of right by the teachers of a private aided school, but notthe other incentives which the government might confer on its employees.Applying the same principle, it cannot be said that the petitioners are entitledto claim parity with Government teachers or teachers in Autonomous Institutions.

26.In Haryana State Adhyapak Sangh and Ors. Etc. v. State of Haryana and Ors.,AIR 1988 SC 1663, the Supreme Court, while declining to go into the claim ofother benefits like HRA, CCA etc., directed the respondents to evolve a schemeto bring about parity between the teachers of aided schools and teachers ofGovernment schools having regard to various allowances. However, the Courtrefused to grant such allowances to the teachers of aided schools, till such ascheme was in place. But with regard to the scale of pay and DA the courtunequivocally indicated that the teachers of aided schools must be put on thesame pedestal as their counterparts in the Government schools.

27.It seems that when it comes to the question of parity in pay scales and allother benefits like DA, HRA, CCA etc. the deciding factor is whether suchscales of pay and allowances have been expressly provided for by the rules andregulations. In case they have been provided for, then, the Courts have ruledin favour of parity to the extent of such pay scales and allowances beingprovided for. However, when such scales of pay and allowances have not beenprovided for, like in the cases of Haryana State Adhyapak Sangh (supra) and OmPrakash Kaushal (supra), the Court has either asked the concerned parties tocome up with a scheme solely for the purpose of bringing about parity in pay, orhave simply refused to allow parity between the allowances which have beenprovided for and the ones which have not been provided for. However, in thepresent case, since the posts are not at par in view of the difference inqualification for appointment etc. this question may not even arise fordetermination.

28.The decision of this Court in ?Bimla Rani and Ors. v. Appellate AuthorityEqual Remuneration Act, 1976 and Ors.? 113 (2004) DLT 441 relied upon by thepetitioners also does not serve the cause of the petitioners. That was a casedealing with employment under the same employer. A lady employee who had earlierbeen enlisted amongst the male employees and was being given a higher salary,was subjected to reduction of her pay when it was realised that she was a lady.The said action was challenged by the petitioner Bimla Rani by placing relianceon Section 7(1)(b) of the Equal Remuneration Act, 1976. The facts of that caseare not similar to the facts of the present case and even the principle of lawinvoked in that case has no application to the present case. Lastly, Mr. Lekhiinvoked the principle of legitimate expectation. He submitted that thepetitioner and its employees have legitimate expectation that they would be disbursed grants-in-aid by the Government so that the employees of thepetitioner could be paid salary and allowances at the same rate at which theircounterparts in the Government and autonomous bodies are being paid, since theyare discharging the same nature of duties. He relies on ?U.P. Avas Evam VikasParishad v. Gyan Devi (dead) by LRs and Ors.? (1995) 2 SCC 326, wherein theissue before the Supreme Court was whether a local authority/company, for whose purpose land is being acquired, has a right to appear and adduce evidence inproceedings before Collector and the reference Court for determination of compensation. In paragraph 41 of the said decision (in the judgment R.M. Sahai,J.) the Supreme Court observed: -?In situations where even though a person has no enforceable right yet he isaffected or likely to be affected by the order passed by a public authority thecourts have evolved the principle of legitimate expectations. The expression which is said to have originated from the judgment of Lord Denning in Schmidt v.Secy. of State for Home Affairs (1969) 2 Ch. 149 is now well established in public law. In Attorney-General of Hong Kong v. Ng Yuen Shiu (1983) 2 A.C. 629Privy Council applied this principle where expectations were, ?based upon some statement or undertaking by or on behalf of, the public authority?, and observed:?Accordingly 'legitimate expectations' in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis'. 'A person may have a legitimate expectation of being treatedin a certain way by an administrative authority even though he has no legalright in private law to receive such treatment? Halsbury's Laws of England, 4thEdn., Vol. 1 (1), re-issue para 81.?

29. We are afraid, we cannot agree with this submission of the petitioner. The principle of legitimate expectation has no application in the facts of this case. The respondents, while granting aid to the petitioners had in no uncertainterms made it clear that the grant-in-aid would, inter alia, include 90% of the expenditure incurred by the voluntary organisations towards salaries of thestaff employed by such organisations and as approved by the Government. There was no ambiguity in the representation made by the Government that 90% of theapproved expenditure is the maximum aid that the Government would provide andunder the schemes it was also made clear that the voluntary organisations should be in a position to meet the remaining expenditure from out of its own accruals and collections. It cannot, therefore, be said that the petitioners entertained a legitimate expectation towards receiving higher grants from the Government tobe able to pay to its employees, higher salaries or other allowances at par with those admissible to Government employees/teachers and employees of autonomous institutions such as the NIVH.

30. Under the "Scheme of Assistance to Voluntary Organisations for Special Schools for Handicapped Children", the teachers and the staff of the specialschool were paid a consolidated salary and it was expressly clarified that noscale of pay and other allowances would be admissible. Under the "Scheme toPromote Voluntary Action for Persons with Disabilities", the consolidated salarywas replaced by a fixed honourarium. Nowhere in the above schemes has other allowances like DA, HRA, CCA etc. found express mention. On the other hand, we find that at the time of filing of the petition, the pay scales were not onlycomparable but in some cases, the teachers employed by the voluntary organisations received a higher pay scale than their counterparts employed bythe Government. Whatever be the case, since emoluments such as DA, HRA, CCAetc. have not been provided for in the present case, we rely on the judgmentsthat we have cited during our deliberations and, therefore, we do not find anymerit in the case of the petitioners.

31.Therefore, we are of the view that the teachers/employees of the petitioner cannot enjoy parity in pay-scales if the educational qualifications required aredifferent, regardless of whether the duties and the responsibilities areidentical.

32.For the aforesaid reasons, we see no merit in this petition and dismiss thesame leaving the parties to bear their own respective costs.

VIPIN SANGHI JUDGE

Friday, July 18, 2008

Laws against Discrimination against the Disabled that apply to the disabled also apply to their carers

Dear Friends,

There is some good legal interpretation happening here. The European Union's Highest Court has ruled that Employers can be found guilty of discriminating against the parent of a disabled child under the EU equality laws.

I feel this indicates a paradigm shift in the interpretation of Equality laws and shows higher sensitivity of the Court to relate the stress of the carer as related to disability.

The European Court of Justice says laws against the discrimination of the disabled also apply to their carers. It says in a recommendation issued Thursday for a British court case that a London law firm was wrong to refuse legal secretary Sharon Coleman her previous job after she gave birth to a son with breathing problems.

Coleman claims her employers said she was lazy when she asked for time off to care for her child. She says other workers with non-disabled children received better treatment and more flexible working hours.

Saturday, July 5, 2008

Madras HC | WP No. 23379 of 2007 | LK Venkat & Anr. Vs. Min. of Civil Aviation & Others | 30 June 2008

Dear Friends, 

We often see the impact of Cases indirectly. Of late we have been seeing some enormous amount of activity in the DGCA and Ministry of Civil Aviation and their engaging very constructively with the Disability Sector in bringing about a Civil Aviation Requirement on carriage of People with Disability. 

In this regard, I refer to a case filed by Mr. L.K. Venkat & Rajiv Rajan against the Ministry of Civil Aviation, Air Sahara and Jet Airways etc. on the issue of lack of provisions for dignified flying for the disabled. The ministry drew flake for some time but this case surely was one of the factor in pushing the CAR guidelines more quickly from the tables of Ministry of Civil Aviation.   Finaly the HC hs delivered its judgement on Rajiv Rajan's Case against Min. of Civil Aviation. 

I am appending the judgement (courtesy Disability Legislation Unit-South) for your information and comments. 


In the High Court of Judicature at Madras 
Dated: 30-06-08 
Bench/ Coram: Mr. Justice P.K.MISRA And  Mr. Justice M.SATHYANARAYANAN 
 
Writ Petition No. 23379 of 2007 

IN RE:

 1.    Mr. L.K.Venkat 
 2.    Rajiv Rajan                                             ..Petitioners 
  
Versus 

  1. The Ministry of Civil Aviation Chennai Airport, Mennambakkam, Chennai. 
  2. The Secretary to Government Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
  3. Air Sahara Airlines, Kamarajar Domestic Terminal, No.1, Link Building, Trisulam, Meenambakkam, Chennai-600 022 
  4. Chief Executive Air Sahara (now known as Jet Lite) S.M.Centre, Andheri Koria Road Andheri (East), Mumbai-400 059 
  5. Chief Executive Officer, Jet Airways (India) Ltd, S.M.Centrem Andheri Koria Road Andheri (East), Mumbai-400 059* 
  6. Director General of Civil Aviation Opposite to safdurjung Airport New Delhi 
  7. Chief Commissioner for Disablilities, Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi-110 001 

(Cause title amended as per order dt.13.2.2008 in M.P.No.1 of 2007 in w.p.23379 of 2007) 

                                                                            …Respondents 

Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus as stated therein. 

For Petitioners ….. Mr. P.B.Suresh Babu for Petitioners. 
For Respondents …. Mr. P.Wilson, Asst. Solicitor General for R1, R2,R6 & R7. 
M/S Guptha & Ravi for R3 to R5. 

 (Order of the Court was made by M.SATHYANARAYANAN, J) 

 The writ petition is filed in public interest for the issuance of writ of mandamus directing the respondents 1 to 3 to strictly implement the provisions of the persons with Disabilities (Equal Opportunities, Protection and Full Participation) Act, 1995 (in short “the Act”).  Thereafter M.P.No1 of 2007 was filed to implead the second petitioner and respondents 4 to 7, it was ordered on 13.2.2008 and accordingly, second petitioner and respondents 4 to 7 came to be impleaded as parties to this writ petition. 

 2. The first petitioner is a physically challenged person and he is a Postgraduate degree holder in Master of Arts and also did graduation in Law. The petitioner is doing social services in the name of Makkal Thalaivar Iyya Moopanar Peravai by conducting Blood Donation Camps, Eye Camps, Aids Awareness Programmes and other social services especially in rural areas of all over Tamil Nadu. 

 3. The first petitioner through newspaper reports came to know that the third respondent refused to board to board the second petitioner who is similarly affected buy a Polio Syndrome like the petitioner, on account of the fact that he is a physically challenged person. The second petitioner approached the third respondent to find out the reason why he was not allowed to board the aircraft and he was informed that unless he obtained fitness certificate from a doctor and accompanied by a healthy person to assist him during air travel, he will not be allowed to board aircraft. 

 4. According to the petitioner, the attitude of the third respondent is in violation of Article 14 of the Constitution of India and also clear contravention to the above said Act. The petitioner also sent a notice through his lawyer on 23.06.2007 calling upon the respondents to implement the provisions of the above said Act and he was not favoured with any response. Therefore, the petitioner has filed this writ petition. 

 5. Mr. P.B.Suresh Babu, learned counsel appearing for the petitioners had made his submissions based on the averments made in the affidavit filed in support of the writ petition. The learned counsel for the petitioners also filed a memorandum in reply to the counter affidavit filed by the respondents 1 to 4. It is submitted by the learned counsel appearing for the petitioners that there were similar incidents pertaining to aircraft Sahara and Jet Airways and complaints have been lodged with Chief Commissioner, Disabilities and the said complaints are pending adjudication. It is further submitted by the learned counsel for the petitioner that persons with disabilities are facing discrimination and degrading treatment wherever they go., The rights of the disabled persons was first declared in U.N. Declaration on the rights of persons with disabilities in the plenary meeting held on 19.12.1975 and the said declaration is yet to be given full effect. 

 6. It is also submitted by the learned counsel appearing for the petitioner that the provisions of the Aircraft Act 1934 and the Indian Aircraft Rules 1937 have to be reviewed in the light of the Constitution of India and the various commitments with the Government of India as made in the International Forums. In spite of the existing law, the facts would now disclose that the degrading treatment shown by the airliners are give recurrent and had been in different forms. Therefore, the writ petitioner has prayed for a declaration that the persons with disabilities constitute a separate class by themselves distinct from the medical ill or temporarily disabled persons and for a direction to review the Legislation and Rules relating to Civil Aviation and the lines of this understandings and also for the other consequential reliefs. 

 7. The respondents 1 and 2 had filed counter affidavit. It is stated in the counter that as per Rule 24 A of Aircraft Rules 1937, the persons suffering from any mental disorder are prevented to be carried on board of the aircraft and it is subject to the provision which is as follows:- “(a) has not taken or used any alcoholic drink or preparation within 12 hours of the commencement of the flight; (b) is kept under proper sedative; if in a state of excitement, during the flight and stops enroute; and (c) is accompanied by an attendant, provided that in case he has been in a state of excitement requiring sedation within the 2 weeks preceding the date of commencement of the flight, he shall be accompanied by a registered medical practitioner and adequate escort who shall individually and collectively be responsible for ensuring that no alcoholic drink or preparation is taken by the person in their charge and that such person is kept suitable sedated during the flight and shops en-route.” It is further state in the counter that the said rule which allows disabled person to travel in an aircraft and the disabilities Act 1995, is already implemented in the Civil Aviation Sector and no discrimination is made against any disabled person. The Airport and aircraft have suitably been designed to have easy access to Airport and aircraft for the benefit of physically challenged persons. The Civil Aviation Requirement is being suitable amended in consonance with the Persons with Disabilities (Equal Opportunities Act) and necessary directions are contemplated to be issued to all the Airliners to facilitate the carriage of physically challenged passenger by air by virtue of the powers conferred under Rule 133-A of the Aircraft Rules, 1937. 

 8. During the course of arguments Mr. P.Wilson, learned Assistant Solicitor General has produced a circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation, New Delhi, wherein the Civil Aviation requirements in respect of carriage by Air to persons with disability and or persons with reduced mobility came to be issued. The salient features of the said circular are as follows:-

 “4.2 The airlines shall formulate a detailed procedure for carriage of disable persons or persons with reduced mobility and publish the same on their website.  
4.6 Many persons with disabilities do not require constant assistance for their activities. Therefore, if the passenger declares independence in feeding, communication with reasonable accommodation, toileting and personal needs, the airlines shall not insist for the presence of a n escort. 
4.9. Persons with disabilities not holding any certificate shall also be provided necessary assistance as well as the aids such as wheel chairs, ambulifts etc. In such cases during ticketing / check-in the individuals’ degree of disability and his need for assistance may be confirmed. Airlines shall not refuse carriage in such cases. However, cost of such facilities may be borne by passengers requiring them. 
Medical Clearance:- 
 5.1: No Medical clearance or special forms shall be insisted from persons with disabilities or persons with reduced mobility who only require special assistance at the airport for assistance in embarking /disembarking and a reasonable accommodation in flight, who otherwise do not require any additional assistance. 
5.2: A medical clearance by the airline may be required only when the airline has received information that the passenger a) suffers from any disease, which is believed to be actively contagious and communicable: b) who, because of certain disease, or incapacitation may have or develop and adverse physical condition which could have an adverse effect during flight and on safety and emergency evacuation procedures: c) would require medical attention and / or special equipment to maintain their health during the flights; d) there exists a possibility of medical condition aggravated during or because of the flight; Note: Persons with specific disabilities should plan to have all required forms for assistance ready in advance, to avoid flight delays. Forms and information will be made available on each airline’s website. 
5.3: Any passenger having any of the conditions mentioned in 5.2(a) through 5.2(d) be subjected to prior clearance for air travel by the medial departments /advisors of the carrying airlines. In case the passenger has a connecting flight with another airline, this medical clearance should be accepted at the first point of check-in and the information transmitted by the first Airlines to the connecting airlines so that the passenger is not required to furnish the same again and again. 
5.4: Before refusing carriage of any such passengers, the airlines shall refer to their medical departments /advisors for advise/clarification in accordance with a procedure, which shall be documented by the airlines. For such clearance the airline may seek the necessary medical information from the passenger(s) concerned or their representatives. Any forms for such information to be provided to the passengers by the airline staff will be made available on the airline’s website. 
5.5: The airline shall enter for each person with disabilities or person with reduced mobility or incapacitated passenger the information sheet requiring special assistance. Notes:1 – The airline shall establish a procedure for expeditious clearance by their medical departments, where required, to avoid delays causing inconvenience to passengers. Airlines shall provide necessary forms and procedures on their web-sites and through their call-centers/ agencies to make the process simple. The passengers should pre=clear themselves with the airline in advance. Notes:2 - The airline shall ensure that at time of check in airline staff is alerted and shall verify that all needs required by such passenger in advance in the relevant forms have been made available. 
Notes:3 – The procedures involving medical clearance shall be documented and published in each airline’s web-sites.  
Boarding, Seating and Briefing:- 
7.1: Boarding:-
a) The presence of all categories of incapacitated passengers and persons with disabilities or reduced mobility with their escorts and any special arrangements made for them while on board, shall always be referred to the captain/senior cabin crew member.
b) Incapacitated passengers and persons with disabilities or reduced mobility and their escorts shall be offered pre-boarding facilities.
c) If passengers for any reason have to be offloaded, the highest possible priority for transportation shall be given to persons with disability or persons with reduced mobility, and to their escorts. 

9. The said circular also provides for complaint procedure. As per the said procedure, a disabled person or person with reduced mobility who considers that this regulation has been infringed may bring to the attention of the managing body of airlines, airport or other concerned authorities, as the case may be and on receipt of such a complaint, shall ensure speedy and proper redressal of these complaints. 

10. Mr. P.Wilson, learned Assistant Solicitor General of India has submitted that in view of the said circular which came to be issued with affect from 1.5.2008, the grievance expressed by the petitioners and persons similarly placed have been taken into account and appropriate remedial measures have been provided and hence nothing survives in the writ petition. 

11. Mr. Ravi, learned counsel appearing for the respondents 3 to 5 has drawn the attention of this court to the averments made in the counter affidavit filed by the third respondent. According to the learned counsel, when the second petitioner was brought to check-in counter the shift in-charge of the third respondent attended him and found that the passenger was not fit to travel by air and that nobody had accompanied him and that he was asked for a fitness certificate. However, he gave irrelevant answers and also later started shouting at the staff in an abnormal way. It is further submitted by the learned counsel appearing for the respondents 3 to 5 that the respondents 3 to 5 had fully complied with the provisions of Indian Aircraft Rules 1937 as well as IATA medical manual. It is further submitted by the learned counsel that the second petitioner had invoked the jurisdiction of the State Consumer Redressal Forum by filing C.C.NO.37 of 2007 claiming compensation and the same was dismissed for default. As respondents 3 to 5 had complied with the laws applicable to them, the learned counsel for the respondents 3 to 5 submits that the present writ petition lacks merits and is liable to the dismissed. 

12. We have considered the submissions made by the respective counsel appearing for the parties and also perused the affidavit filed in support of the writ petition, counter affidavits, reply to the counter affidavit filed by the parties and also the circular dated 2.5.2008 issued by the office of the Director General of Civil Aviation. 

13. A perusal of the circular dated 2.5.2008 issued by the Director General of Civil Aviation would reveal that positive steps have been taken to alleviate the grievances of physically challenged persons in right earnest by the Director General of Civil Aviation and we hope and trust that further progress will definitely be made by the concerned authorities to redress the day to day problems faced by the physically challenged persons while they travel by air. 

14. The second petitioner herein has filed a complaint before the State Consumer Disputes Redressal Forum, Chennai in C.C.No. 37 of 2007, which came to be dismissed for default after the filing of this writ petition. The second petitioner was under the bona fide belief that he can get all reliefs in this writ petition and hence, allowed the said complaint to be dismissed for default. The alleged agony undergone by the second petitioner on 18.06.2007 was seriously disputed by the third respondent in its counter affidavit and aggrieved by the same, originally the second petitioner had filed the above said complaint before the State Consumer Disputed Redressal Form, which came to be dismissed for default as the second petitioner felt that in view of his impleadment in the writ petition, he cannot prosecute the said complaint. 

15. The question as to whether such person would be entitled to receive compensation obviously depends upon many factual findings based on evidence and the High Court is ill-equipped to deal with those aspects. However, we feel that the second petitioner should not suffer on that account and in the interest of justice, we feel; that without any application, the complaint in C.C.No. 37 of 2007 which was dismissed for default, can be restored to file and decided on its own merits. 

 16. We heard the learned counsel appearing for the respondents 3 to 5, who very fairly submitted that such an order of restoration can be passed in this writ petition itself. Accordingly, C.C.No.37 of 2007 filed by the second petitioner before the State Consumer Disputes Redressal Forum, Chennai, which was dismissed for default, stands restored to its file and it can be disposed of on its own merits. 

17. The circular dated 2.5.2008, issued by the Director General of Civil Aviation is an effective step in a right earnest. We feel that more effective steps have to be taken to alleviate the grievance of persons who are physically challenged and we hop and trust that such steps will definitely be on the cards. The writ petition is disposed of on the above terms. In the circumstances, there will be no order s to costs.

 Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar Gr. 

 To 
1. The Ministry of Civil Aviation, Chennai Airport, Meenambakkam, Chennai. 
2. The Secretary to Government, Ministry of Civil Aviation, Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi. 
 3. Air Sahara Airlines, Kamarajar Domestic Terminal. No.1, Link Building, Trisulam, Meenambakkam,Chennai-600 022 
 4. Chief Executive, Air Sahara (now known as Jet Lite). S.M.Centre, Anhjeri Koria Road, Andheri (East), Mumbai – 400 059. 
 5. Chief Executive Officer, Jet Airways (India) Ltd., S.M.CentreAndheri Koria Road, Andheri (East), Mumbai-400 059. 
 6. Director General of Civil Aviation opposite to Safdurjung Airport, New Delhi. 
 7. Chief Commissioner for Disabilities , Govt. of India, Sarojini House, No.6, Bhagawandoss Road, New Delhi – 110 001. 

 1 cc To Mr. P.Wilson, Advacate, SR.33533. 
1 cc To Mr. Gupta & Ravi, Advocate, SR.33150 
1 cc To Mr. P.B.Suresh Babu, Advocate, SR. 33188. w.p.no.23379 of 2007 nsm(co) 
RVL 11.07.2008

Tuesday, June 17, 2008

MCI not allowing a candidate with polio in upper limbs to pursue PG Course

Hi,
Here is yet another example of attitude- (often attitudes have been termed as real disabilities!) of MCI not allowing the petitioner in this case to pursue her PG Course in Radiology.

Saroj Yadav, who has post polio residual paralysis of the right hand between the shoulder and the elbow, has completed MBBS from Grant Medical College and is currently pursuing PG course in radiology which was opposed by the MCI.

According to MCI rule, candidates with upper limb disabilities are not eligible for admission to MBBS course, too. However, as a result of this petition, the Bombay High Court has clearly said that the Candidate has proved that the rule is Bad and granted provisional admission to Saroj.

Often authorities fail to even recognise the abilities of the people with upper limb disabilities. A person with a congenital both arms malformation is not suitable for any job as per the Identification List published by Government of India. However, the list itself is not exhaustive and only indicative. In such a scenario the authorities fail to appreciate the abilities of the candidate and unilaterally close all doors of opportunities for them.

You may read the detailed news article at http://www.svayam.com/?q=node/714 and just wait for the final judgement which I shall post on this very blog.
warm regards
SC Vashishth

Friday, January 4, 2008

Supreme Court | Bhagwan Dass & Anr Vs. Punjab State Electricity Board | 04 Jan 2008 | Section 47 of PWD Act 1995

Court:  Supreme Court of India

Bench: Hon'ble G.P.Mathur, Hon'ble Aftab Alam, Justices

Case No.: Appeal (Civil)  8 of 2008   [Arising out of SLP) No.26357/2005] 

Case Title: Bhagwan Dass & Anr vs Punjab State Electricity Board 

Date of Judgement: 4 January, 2008

Author: A Alam, J.


JUDGMENT:

Leave granted.

This case highlights the highly insensitive and apathetic attitude harboured by some of us, living a normal healthy life, towards those unfortunate fellowmen who fell victim to some incapacitating disability. The facts of the case reveal that officers of the Punjab State Electricity Board were quite aware of the statutory rights of appellant No.1 and their corresponding obligation yet they denied him his lawful dues by means that can only be called disingenuous.

The facts of the case are brief and are all taken from the (Reply) Affidavit filed on behalf of the Punjab State Electricity Board and its officers (the respondents in the appeal). Appellant No.1 joined the respondent Board on July 19, 1977, on ad-hoc/work-charged basis. His services were regularized as an Assistant Lineman on June 16, 1981. While in service he became totally blind on January 17, 1994 and a certificate to that effect was issued by the civil surgeon, Faridkot.

Here, it may be noted that the rights of an employee who acquires a disability during his service are protected and safeguarded by Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Section 47 reads as follows : 

"47. Non-discrimination in Government employments.  (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits :

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

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

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.  

It may further be noted that the import of Section 47 of the Act was considered by this court in Kunal Singh vs. Union of India & Anr. [2003 (4) SCC 524] and in paragraph 9 of the decision it was observed and held as follows :

"Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that a person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of the section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of his disability as is evident from sub-section (2) of Section 47. Section 47 contains a clear directive that the employee shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of a social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service." (Emphasis added) 

After the Act came into force with effect from December 7, 1996 (vide S.O.107(E) dated 7th February, 1996), the Government of Punjab, Department of Personnel and Administrative Reforms, issued a letter dated September 24, 1996 directing all the heads of departments to comply with Section 47 of the Act. The Punjab State Electricity Board too adopted the Government letter under its Circular No.6/97, dated February 17, 1997.

In view of Section 47 of the Act and the Circulars issued by the State Government and the Board it is clear that notwithstanding the disability acquired by the appellant the Board was legally bound to continue him in service. But on behalf of the respondent it is stated that the disabled employee himself wanted to retire from service and, therefore, the provisions of Section 47 had no application to his case. Here it needs to be made clear that at no stage any plea was raised that since the appellant was declared completely blind on January 17, 1994 he was not covered by the provisions of the Act that come into force on February 7, 1996. Such plea can not be raised because on February 7, 1996 when the Act came into force the appellant was undeniably in service and his contract of employment with the Board was subsisting. His case was, therefore, squarely covered by the provisions of the Act.

Coming now to the reason assigned by the Board to deny him the protection of Section 47 of the Act, it is stated on behalf of the respondents that he remained absent from duty without any sanctioned leave from January 18, 1994 to March 21, 1997. He was directed by the Executive Engineer to resume duties vide Memo No.412, dated March 16, 1994 and Memo No.6411, dated August 4, 1994. He, however, failed to report for duty and on September 13, 1994, a charge sheet was issued initiating disciplinary proceedings against him for gross misconduct under regulation 8 of the Punjab State Electricity Board Employees Punishment & Appeal Regulation 1971. The matter appears to have lain dormant for sometime and then it is stated that the appellant by his letter dated July 17, 1996 requested the Board to retire him from service. As a matter of fact by this letter the appellant sought to explain his absence from duty and requested that his wife might be employed in his place. But it was made the basis for denying the appellant his lawful dues. Since the whole case of the respondents is based on this letter it would be appropriate to reproduce it in full :

"Sir, I explain as under the subject cited unnatural happening which I met, When I was returning home after performing my duty on 17-1-94 then vision of my eyes lessened suddenly. I got treatment from far and near for eye-sight/lessening of vision of my eyes. But I became completely blind. Now I cannot perform my hard work duty. I want to retire from service. I may be retired and my wife may be provided with suitable job against me. Yourself will be genesis to me." (Emphasis added) 

At this stage some internal correspondences took place between the officers of the Board over the question how to deal with the appellant. On July 10, 1997, the Senior Executive Engineer (OP) Division, Malout wrote to the Deputy Chief Engineer, Operation Circle, Muktsar, asking for instructions in the matter. Paragraphs 2, 3 and 4 of the letter are relevant and are reproduced below :

"2) As per report of Medical Board the official is unfit for duty, he cannot perform any duty.

3) But as per instructions contained in Punjab Government Memo No.17/16/94-5 PP-1/6546 adopted by PSEB vide its Circular No.6/97 the official/officer it (sic is) not to be retired from service who become disable during service.

4) The official has represented that he may be retired from duty and his wife be provided with suitable job."

The Senior Executive Engineer received the reply from the Secretary of the Board vide letter dated February 17, 1998 in which he was advised as follows :

"It is advisable to retire the official as per rules and regulations of the Board if the employee is not otherwise interested in taking the benefit of Board's Circular No.6/97.

For the purpose of clarification as to whether employee is entitled to the benefits, otherwise admissible under rules/regulations of the Board in preference to Benefits admissible under Circular No.6/97, if he so desires, can be obtained from the Office concerned which issued said circular." 

Later on, the charge-sheet issued against the appellant was withdrawn by the Senior Executive Engineer vide Office Order No.14, dated January 13, 1999 and the appellant was asked to submit leave application for the period of absence.

Next in series is a letter, dated November 15, 1999, from the Director/IR, PSEB, Patiala to the Senior Executive Engineer, (OP) Division, Malout. In this letter it was stated as follows :

"As per cited subject it is made clear that employee who is blind shall not be retired as per instructions of the Board. But is (sic. if) such employee himself make request for retirement then he can be given retirement on medical ground." 

Finally, the Senior Executive Engineer, issued Office Order No.559, dated December 14, 1999, by which the appellant was relieved from service with effect from March 21, 1997 (the date of issuance of Medical Certificate) as per Rule 5.11 of Civil Services Rules-Vol.II.

It appears that the appellant protested against the action of the Board in relieving him from service and made representations. The representations, it seems, were forwarded to the superior authorities and the Board's decision was communicated to the Senior Executive Engineer vide letter dated February 18, 2000 from the Director/IR, PSEB, Patiala. The contents of the letter are as follows : 

"With regard to cited subject it is made clear that there are instructions of the Board on which blind employee is not liable to be retired. But in the case of Shri Bhagwan Dass ALM advice of retirement was given as he himself made request for his retirement on Medical Ground. So the case of this employee is not likely considered for his rejoining of duty."

The appellant then filed an affidavit before the concerned officers. A copy of the affidavit is at Annexure R-12 to the respondents' affidavit. In the affidavit he pathetically pleaded that he had no knowledge about the Rules of the Electricity Board and represented for retirement unknowingly. He further stated that when he came to know that there was no need for retirement for those who were disabled during service he again represented that he might not be retired and might be retained in service as per the instructions of the department. The affidavit did not evoke any response but the severance was completed by making payment of his terminal dues.

The disabled employee then approached the Punjab & Haryana High Court in Civil Writ Petition No.12534 of 2004 seeking relief in terms of section 47 of the Act and the Circulars issued by the State Government and the Board in its furtherance. In the writ petition he was joined by his son, appellant No.2, and an alternative relief was sought for employment of his son in his place. Unfortunately, before the High Court it was the second relief that came into focus and the High Court dismissed the writ petition by a brief order referring to the decision of this Court in Umesh Nagpal vs. State of Haryana [1994 (3) SCT 174]. 

In the High Court order there is no mention of Section 47 of the Act and the disabled employees' claim/right on that basis. Against that order this appeal is preferred in which the disabled employee agitates his rights on the basis of Section 47 of the Act. From the materials brought before the court by none other than the respondent-Board it is manifest that notwithstanding the clear and definite legislative mandate some officers of the Board took the view that it was not right to continue a blind, useless man on the Board's rolls and to pay him monthly salary in return of no service. They accordingly persuaded each other that the appellant had himself asked for retirement from service and, therefore, he was not entitled to the protection of the Act. The only material on the basis of which the officers of the Board took the stand that the appellant had himself made a request for retirement on medical grounds was his letter dated July 17, 1996. The letter was written when a charge sheet was issued to him and in the letter he was trying to explain his absence from duty. In this letter he requested to be retired but at the same time asked that his wife should be given a suitable job in his place. In our view it is impossible to read that letter as a voluntary offer for retirement. Appellant No.1 was a Class IV employee, a Lineman. He completely lost his vision. He was not aware of any protection that the law afforded him and apparently believed that the blindness would cause him to lose his job, the source of livelihood of his family. The enormous mental pressure under which he would have been at that time is not difficult to imagine. In those circumstances it was the duty of the superior officers to explain to him the correct legal position and to tell him about his legal rights. Instead of doing that they threw him out of service by picking up a sentence from his letter, completely out of context. The action of the concerned officers of the Board, to our mind, was deprecatable. 

We understand that the concerned officers were acting in what they believed to be the best interests of the Board. Still under the old mind-set it would appear to them just not right that the Board should spend good money on someone who was no longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers were duty bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled employee. From the larger point of view the officers failed to realise that the disabled too are equal citizens of the country and have as much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to them and their families but would create larger and graver problems for the society at large. What the law permits to them is no charity or largess but their right as equal citizens of the country.

In light of the discussions made above, the action of the Board in terminating the service of the disabled employee (appellant No.1) with effect from March 21, 1997 must be held to be bad and illegal. In view of the provisions of Section 47 of the Act, the appellant must be deemed to be in service and he would be entitled to all service benefits including annual increments and promotions etc. till the date of his retirement. The amount of terminal benefits paid to him should be adjusted against the amount of his salary from March 22, 1997 till date. If any balance remains, that should be adjusted in easy monthly installments from his future salary. The appellant shall continue in service till his date of superannuation according to the service records. He should be reinstated and all due payments, after adjustments as directed, should be made to him within six weeks from the date of presentation of a copy of the judgment before the Secretary of the Board.

In the result the appeal is allowed with costs quantified at Rs.5,000/-.


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