Delhi High Court gets tough on Railways for failing to fill up the reserved seats of Disabled

Dear Friends,

An update on the case being argued currently by Mr. Mani, my colleage at AICB's Advocacy Committee which incidently I had filed few years back!

The High Court is taking the matter seriously as it is seized with the matter for a long time now. I have a fear- a genuine fear! The recruiting organisations often count the candidates on reserved seats even if they clear on their own merit thereby limiting the recruitment prospects. Thus the reservation policy often works counter-productive.

Till today, I have not come across any case where the person even though higher in the merit and selected in Disabled Quota ever went and challenged as to why he was selected in reserved quota and not on his own merit - for his job is done and he doesn't want to antagonise the employer.

Others never come to know about the waiting list unless they apply for it under RTI. Thus many who genuinely need that reservation to find an employment never get that.

Another area of concern is counting an old employee who was recruited as non-disabled but acquired disability during his service, in disability quota . This also further restricts the quota and doesn't give clear picture of the implementation of the reservation policy of the employer. Well, this needs some serious cogitation!

regards

Subhash Chandra Vashishth
09811125521

Here is the press release :

New Delhi, Monday, 6th April 2009:

While hearing a petition filed by AllIndia Confederation of the Blind relating to violation of persons withdisabilities Act by the Indian Railways, a division bench of the Delhi High Court headed by Justice A. P. Shah (Chief Justice) sharply criticized the railways for not adhering to the court orders of 20th January 2009 directing it to maintain a roster with regard to appointments of disabled persons in Railways.

Earlier, a joint report worked out by the petitioner and the respondent asper the directions of the Delhi High Court had stated that there was awhopping backlog to the extent of 4254 vacancies on which disabled persons should have been appointed as per the persons with disabilities Act, but therailways did not adhere to the provisions of this Act.

Mr. Rajan Mani, counsel for the petitioner, All India Confederation of the Blind, argued that maintaining a roster was the first step towards ensuring reservations for disabled persons. ”Clearly, the Railways is not serious about fulfilling its statutory obligations,” he argued.

The honuorable Chief Justice observed that non compliance of court ordersamounted to contempt of the Court. He directed that Secretary Railways /Member (staff recruitments) be present in person on Monday 13th April 2009.The court also directed Railways to start special recruitment drive toappoint disabled persons by utilizing at least 50% of the available vacancies for this purpose. In a landmark order the court also directed therailways that no recruitment will take place unless provision is made tofill up 4254 vacancies reserved for disabled persons.

Need of Sensitive & Aware Judges in the High Courts

Dear Friends,

In the instant case, I am delighted that a senior judge of a High Court had the sensitivity, to use his extra ordinary jurisdiction, to protect the person and properties of a Person with Disability (Intellectual Disability). However, I am also at a loss of words to explain what I feel on the lack of awareness of the National Trust Act 1999 in the judiciary!

I strongly feel that we in the disability sector have to take this responsibility also to spread the message across and yes there is a urgent need to raise the awareness level of the Judicial Officers also especially in various High Courts of India who often use their extra-ordinary jurisdictions and writ jurisdictions to decide matters relating to Fundamental Rights of the marginalised sections of the soceity like the present one.

Appended is the News. To read from Source click on Source: Express Buzz.com regards,

Subhash Chandra Vashishth
Advocate-Disability Rights
09811125521

There is a law to protect the mentally retarded

Scaria Meledam First Published : 09 Mar 2009 01:39:00 AM ISTLast Updated : 09 Mar 2009 01:43:25 PM IST

The ‘Law Watch’ published on January 26, 2009 had reported about the exercise of the extra-ordinary jurisdiction of the High Court by Justice V Giri to appoint a guardian to protect the person and properties of a mentally retarded person since the Mental Health Act did not contain a provision for such appointment and to point out the need to correct the lacuna in the Act by a suitable amendment.

Referring to the action, Dr (Mrs) Rajam P R S Pillay from Thiruvananthapuram has written a letter pointing out that the Court had missed the fact that there was an Act providing the appointment of legal guardians for mentally retarded persons and thus filling the lacuna in the Mental Health Act.

The National Trust for the Welfare of Persons with Autism, Cerebral Palsy Mental Retardation and Multiple Disabilities Act, 1999 (for short, The National Trust Act), provides for the constitution of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disability. The head office of the Trust is in New Delhi and it has offices at other places in India. The general superintendence, directive and management of the affairs and business of the Trust is vested with a board consisting of a chairman and 20 members. The board should constitute a local-level committee for a specified area. The committee consists of a civil service officer, a representative of a registered organisation and a person with disability.

Section 14 of the Act provides for guardianship.
A parent of a person with disability or his relative can make an application to the local-level committee for appointment of any person of his choice to act as a guardian of the persons with disability. Any registered organisation also can make an application to the local- level committee for appointment of a guardian for a person with disability. While considering the application for appointment of a guardian, the local-level committee should consider whether the person with disability needs a guardian and the purposes for which the guardianship is required and then make recommendation for the appointment of a guardian. It can also provide for the obligations of the guardian.

Section 15 details the duties of Guardian:
Every person appointed as a guardian of a person with disability should, wherever required, either have the care of such persons of disability and his property or be responsible for the maintenance of the person with disability. Every guardian should, within six months of his appointment, deliver to the authority which appointed him an inventory of immovable properties belonging to the person with disability and all assets and other movable property received on his behalf together with a statement of all claims due to and all debts and liabilities due by the person with disability. Every guardian should also furnish to the appointing authority within three months after the close of every financial year an account of the property and assets in his charge, the sums received and disbursed on account of the person with disability and the balance remaining with him.

There is also a provision for the removal of guardian: Whenever a parent or a relative of a person with disability or a registered organisation finds that the guardian is abusing or neglecting a person with disability; or misappropriating or neglecting the property, they should apply to the committee for the removal of the guardian. Then the committee should, if it is satisfied that there is a ground for removal, remove the guardian, recording reasons for the same and appoint a new guardian or make other arrangements for the care and protection of person with disability. The removed guardian is bound to deliver the charge of all properties of the person with disability to the new guardian and to account for all moneys received or disbursed by him.

The P R S Pillay Memorial Trust of which Dr Rajam is the managing trustee, is the state nodal agency centre of the National Trust which has constituted the local-level committees in all districts under the chairmanship of District Collectors.

LIC fined for denying insurance claim on acquiring permanent disability on the grounds that Claimant was capable of earning his wages, despite disability

31 Jan 2009 |  SCDRC, Delhi

Consumer Case; Acquired Permanent Disability of 69%  as a result of accident; Claim rejected on grounds that claimant hasn't lost his wage earning capacity; claimant's continue to work in Delhi Police despite disability under proection of Persons with Disabilities Act 1995.

Question of Law: Can LIC deny insurance claim of having acquired disability as a result of accident  on the ground that claimant was capable of earning wages, since he was allowed to continue working with Delhi Police for compassionate reasons.  

The state consumer commission has hit out at Life Insurance Corporation of India (LIC) for rejecting the rightful claim of a poor consumer on a flimsy ground. LIC denied the claim of a disabled police constable on the grounds that he had not suffered permanent disability. Disagreeing with this, the commission has asked LIC to pay Neeraj Kumar his entitled claim that covers permanent disability benefits to the tune of Rs 1.5 lakh and a compensation of Rs 25,000.

Background of the case

Neeraj Kumar, a resident of Burari, suffered an electric shock following which his right arm below the elbow had to be amputated. After obtaining a permanent disability certificate from doctors of Safdarjung Hospital, he filed a claim with the company. Despite the doctors assessing permanent disability to the extent of 69%, LIC rejected his claim on the ground that he was capable of earning wages, since he was allowed to continue working with Delhi Police for compassionate reasons.

Order of the Commission

The commission, headed by Justice J D Kapoor, observed that had the consumer applied for the post of constable now, he would not have got the job. Therefore, to reject such a claim on such a premise was nothing but logic chopping, oppressive and malafide interpretation of beneficial contract, the commission observed.

"Merely because a person with permanent and total disability continues to be employed on compassionate basis does not mean that he has forfeited the benefit of permanent disability arising from the insurance policy,'' Kapoor added.

Justice Kapoor also asked the insurance sector not to adopt such an approach and be consumer friendly. The consumer should not be made to run from pillar to post or else they should be ready for the consequence of recovery of compensation amount from the salary of the officials, he said.

Source: Times of India

Explanation of the Education Department on creating Special Schools for Disabled Children

With that all the confusion over the newspaper report on the decision of the Government to open special schools for the disabled children in Delhi that I referred to in my post dated 22 Dec 08, Here is the clarification by the Education Secretary Ms. Reena Ray herself on the plans of Education Department to tackle the education needs of Children with diverse disabilities.

In nutshell, for me, the model schools will be a new name to the special school only. However, with one such school in each district which Govt. may call a model school and I would say it a Special School still, the educational needs of the children will be better looked after. Many children specially with visual and hearing disability do learn better in exclusive set ups for the infrastructure is designed for them and more individualised attention is feasible. However, they face socialisation problems while their social & economic rehabilitation takes place and society is not better prepared for accepting them as a part of them.

Here is the clarification from Education Department on that goof up:

regards
Subhash Chandra Vashishth

Govt schools to make room for special children

Aneesha MathurPosted: Jan 02, 2009 at 0131 hrs IST

New Delhi As an extension of the Right to Education and Integrated Education schemes of the Sarva Shiksha Abhiyan, 24 government schools in Delhi will be turned into “model schools” implementing policies regarding the mainstreaming of children with physical and learning disabilities. These schools will serve as “laboratories” and help solve problems of inclusive education through the identification of problem areas, and through innovative solutions that will allow differently abled children to study in mainstream schools using to the CBSE syllabus.

Twelve schools belonging to the Directorate of Education (DoE), and a similar number of schools run by the MCD, will be part of this project, Education Secretary Rina Ray said. “It’s not possible to blindly follow the model of education followed in the US or Europe. This will allow us to see what is required in the specific environment of Delhi government schools,” she
said. One DoE and MCD school in each education district will be developed as a model school.
The Sarva Shiksha Abhiyan’s Delhi office has taken out an advertisement inviting 50 teachers for children with special needs, including visual and hearing-impaired children. The teachers will be posted in these model schools to enable the DoE to work out guidelines for expanding the integrated education model.

In 2008, there were 10,065 differently abled children enrolled in 750 Delhi government schools. Most have some physical disability or visual or auditory impairment. Some also have learning disabilities like dyslexia. “Most schools today have some number of children with disabilities but there are no fixed methods to teach them. There is too much diversity in Delhi and too little awareness or expertise as far as dealing with these children is concerned,” Kanta Kapoor, coordinator, District Southwest, Integrated Education for Disabled Children, said.

The model schools will have both the infrastructure and the trained teachers required to integrate the children with disabilities. “We are in talks with the Vinyas Foundation to create Building as Learning Aid (Bala) concepts for children with visual impairment or learning disability. We are also working out retrofitting and renovation plans to introduce ramps,
wider doors, specially designed toilets etc, for these children,” Ray said.

NGOs such as the Spastic Society of North India, Muskaan, Aastha etc, have also been involved in the project for spreading awareness and contribution of expertise to the scheme. The Vinyas Foundation, which introduced the Bala idea, has been roped in to create more such aids for these children. “We are thinking about getting tiles that indicate directions to blind students, painting scenes out of stories on walls so that children with hearing impairment can see the story that they are not able to hear,” the Education Secretary said.Under the proposed plan, all teachers and students in these schools will be sensitised to the needs of the differently abled students, through workshops and life skills education programmes. Two teachers from every school under the DoE have already been identified as in-charge of the special education programme.
Workshops were held last year to train them in methods to integrate children with disabilities. Sensitisation drives were also organised across schools in December to create awareness about the problems faced by differently abled children.

The “buddy support system”, where students act as the support group of a differently abled child, was introduced in Delhi schools in 2006.

Source: http://www.expressindia.com/latest-news/govt-schools-to-make-room-for-special-children/405651/

DLU East - a unit of Shishu Sarothi explores success in rights through courts

Dear Friends,

Shishu Sarothi through its unit Disability Legislation Unit South has been a front runner in taking up disability rights issues in the north east region of India. In a recent PIL filed before the Gauhati High Court bearing No. Writ Petition(Civil) 34/2008, they have obtained favourable orders from the Division Bench of the Hon'ble Chief Justice J Chelameswar and Hon'ble Mr.Justice A Potsangham on December 17, 2008.

In the instant case, the Director of Medical Education, Assam issued a notice for admission to paramedical courses in the three medical courses to fill up 400 seats among 12 different paramedical courses.

In the impugned admission notice the Director changed the definition of disability to suit their own whims and fancies. To fill up 3% quota of disabled they choose "only the persons with locomotor disability of the lower limbs and having 50 to 70 per cent of disability". This by any imagination was a fun of the law of the land and an attempt to throttle the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act-1995 and the Constitution of India.

Here is the coverage that might interest you:

Assam Times: Where executive fails, Judiciary prevails

Where executive fails, Judiciary prevails

Daynath Singh on 31 December, 2008 

The greatest challenges facing persons with disabilities lie in the areas of access, education and employment, said Ms Anju Talukdar, coordinator, Disability Law Unit, NE. Addressing the media persons at Guwahati Press Club on December 31, 2008, she expressed concern over the physical barriers in the environment coupled with societal prejudice severely restrict and often completely block available opportunities. One of the laws enacted to ensure the protection of persons with disabilities in India is the 'Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995. Unfortunately, even with its many beneficial provisions, the said Act has failed to achieve its objectives due to poor implementation and in many cases non-implementation of its provisions. This was simply demonstrated in a recent case involving admissions to seats in paramedical courses in the three medical colleges of Assam.

On May 12, last an Educational Notice was issued by the Director of Medical Education, Assam, for admission to paramedical courses in the three medical courses. A total of 400 seats were to be filled up among 12 different paramedical courses. The Act guarantees certain rights to persons with disabilities including the right spelt out in Section 39 which says "all educational institutions to reserve seats for persons with disabilities. All government educational institutions and other educational institutions receiving aid from the Government shall reserve not less than three percent seats for persons with disabilities."

The advertisement issued by the Director of Medical Education provided for three per cent reservation for persons with disabilities, but the definition of who is a person with disability was as unique as it was inaccurate. It was also clearly contrary to the law, she said. Under the Persons with Disabilities Act 'person with disability' means a person with 40 per cent or more of blindness, low vision, leprosy-cured, hearing impairment, locomotors disability, including cerebral palsy, mental retardation and mental illness.

This very clearly definition of disability as spelt out by the law was not enough for the authorities. They came up with their own definition and as per the admission notice, three percent reservation quota would be made available for persons with disabilities, but 'only the persons with locomotors disability of the lower limbs and having 50 to 70 per cent of disability shall be eligible for this quota.'

This was clearly against the provisions of the Act. Anju Talukdar and Rakhi Sirauthia Choudhury of the Disability Law Unit, Northeast challenged this educational notice in the Gauhati High Court in a Public Interest Litigation, which was numbered as PIL 34/2008. This Unit is a project of Shishu Sarothi and fights for the rights of persons with disabilities by creating awareness on the various disability laws, advocating disabled friendly policies and facilitating litigation in case of violation of rights.

The case was argued on behalf of the petitions by their counsel, Siddharth Shankar Dey, renowned advocate of the Gauhati High Court and strong defender of disability rights. On June 16, 2008 the petition was admitted by the court and as an interim measure, the authorities were directed to receive applications from all categories of persons with disabilities. On June 27, the Director of Medical Education issued a corrigendum inviting applications from all categories of persons with disabilities.

The Division Bench of the Hon'ble Chief Justice J Chelameswar and Hon'ble Mr. Justice A Potsangham on December 17 last allowed the petition directing that three percent reservation for persons with disabilities would be available for all categories of disabilities. The High Court rejected the argument of the State of Assam that restricting the reservation to only the persons with locomotors disability of the lower limbs and having 50 to 70 percent of disability was justified under the guidelines of the Medical council of India. Interestingly, the documents relied on by the State of Assam itself showed that the Medical Council of India had prescribed guidelines only with reference to admissions to MBBS and PG medicine courses. No mention was made of paramedical courses. Further, there was nothing in the law to exclude persons with other disabilities from qualifying on merit to the paramedical courses. So no such exclusion can be made for seats reserved for persons with disabilities.

The decision of the Gauhati High Court is a huge encouragement to the disability sector –not just in Assam, but the entire Northeast and in fact the whole country. It is often seen that government authorities neglect and ignore their obligations under the law. There has often been no other recourse available but to approach the courts to secure the rights and interests of the persons with disabilities. While the executive continues to pose obstacles in the path, it is a huge relief that the judiciary has consistently proved a bastion and bulwark in defense of persons with disabilities, said Ms Talukdar.

- See more at: http://www.assamtimes.org/node/2394#sthash.MPaysaBk.dpuf