Thursday, April 1, 2010

Private Organisations not bound by Disability Act: Says Supreme Court

Dear Friends,
This post is with respect to a recent judgement by Hon'ble Supreme Court in  Civil Appeal No. 1886/2007 titled Dalco Engineering Private Ltd. Vs. Shree Satish Prabhakar Padhye and Ors with another Civil Appeal No. 1858/2007 titled Fancy Rehabilitation Trust and Anr. Vs. Union of India and Ors.


The employee Mr. Padhye acquired hearing impairment during the period of service and was terminated by the employer. Employee got a favourable suggestion from Disability Commissioner Pune for his re-instatement under Section 47 of Disabilty Act which says:

“47. Non-discrimination in Government employment.—(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.”

 
The word "Establishment" has been defined by Section 2( k)( i) of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 defines the word "Establishment as :-

"Establishment" means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of 'the Companies Act, 1956 and includes Departments of a Government;


On a simple reading of the definition of the word "establishment", it is clear that any organisation established under a central, provincial or state act will be an establishment. Thus any organisation registered and established under the provisions of the Societies Registration Act or the Indian Trust Act or The Companies Act should ordinarily get covered under this.

However over insistence here on the Government share/ownership or control indicates that the intention of creators of this statute was to only include organisations which are largely government or local authorities created under central or state statutes or has a government stake of 51% (read section 617 of Companies Act which has been specifically referred to indicate that this has to be read in exclusion of the Companies Act). Also the heading of Section 47 of Disability Act is "Non-discrimination in Government Employment" which clarifies the intention of the legislature that it did not wanted to include private companies under the word "establishment".

The Hon'ble Supreme Court has indicated that similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant "government companies".  The reason put forward by the Court is "A ‘company’ is not ‘established’ under the Companies Act. An incorporated company does not ‘owe’ its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a Memorandum of Association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a ‘company’ is incorporated and registered under the Companies Act and not established under the Companies Act.


It further clarifies that inclusion of only a specific category of companies incorporated under the Companies Act, 1956 (Govt. Companies registered under Section  617) within the definition of ‘establishment’ necessarily and impliedly excludes all other types of companies registered under the Companies Act, 1956, from the definition of ‘establishment’.


A counter argument to this would be that while IPC and Prevention of Corruption Act are punitive in nature and should be interpreted in restrictive and strict sense, the Disability Act is a benevolent, socio-economic and empowering legislation and must be interpreted in a way which favours the marginalized section of the society.

However, now a decision of the learned judges of the Supreme Court is out here clarifying the meaning of word establishment, removing the clouds of doubt on the existing legislation and leaving no room for its benevolent interpretation in future. Therefore, it would be worthwhile now that the disability activists address this issue in the New Law that is being suggested and be categorical that the provisions of the disability act would apply to all establishment including those private initiatives which are registered under any of the Central or State statutes like companies, trusts, societies and cooperatives etc.

This has larger force of argument because when a labour legislation related to PF, Minimum Wage etc. is applicable to private employers with a certain number of employees then why can't disability legislation be applicable - for the objective of both legislations is to empower the weak, vulnerable and marginalized members of our society?

On second thought, it comes to my mind as to why the exploitation of an employee with disability by an employer could not be taken up through labour legislations read in conjunction with disability Act and why alone under Section 47 of the Disability Act? The last line of the judgement - "This will not come in the way of employee of any private company, who has been terminated on the ground of disability, seeking or enforcing any right available under any other statute, in accordance with the law." -  gives a hint that it could have perhaps been better fought under labour legislations. 


Here is the news report on the issue from the Mail Today.



regards



SC Vashishth
Advocate-Disability Rights
09811125521


SC says disability Act not binding on private firms

Mail Today, 01st April 2010


THE SUPREME Court on Wednesday held that a law enacted in 1995, to prevent exploitation of the disabled by their employers, could not be enforced on the private sector.

A three- judge bench, comprising justices R. V. Raveendran, R. M. Lodha and C. K. Prasad, said the Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, did not cast any obligation on private companies and schools.

The bench rejected a contention that the Act covered all companies incorporated under the Companies Act.

A private company had approached the apex court, against a high court order holding that the disabilities commissioner had jurisdiction over any company incorporated under the Companies Act. The high court had said it could direct the company to reinstate an employee who was dismissed on account of disability.

The second appeal was filed by a trust — on behalf of the employee — which had approached the apex court after the high court refused to pass any such direction to the company and admitted that the first judgment was incorrect.

Opposing the company’s appeal, the dismissed employee pointed out that section 2( k)( i) of the disability Act brought “ a corporation established by or under a central, provincial, or state Act” within its ambit.


But the apex court said a similar phrase in the Indian Penal Code and the Prevention of Corruption Act meant government companies.

Tuesday, March 16, 2010

Delhi High Court issues notices to DU colleges on non implementation of PWD Act.

Notices to colleges for not adhering to disability quota



New Delhi: The Delhi High Court recently issued notices to eight colleges run by the central government for not implementing the disability quota for teachers despite directions.


A division bench of Justices Sanjay Kishan Kaul and Ajit Bharihoke asked the colleges to file their reply by April 16 and state why their orders were not complied with.

Bharti College and Lady Harding Medical College are two of the eight colleges that have not complied with the order.

Colin Gonsalves, counsel for NGO Sambhavana Trust, said, "There are only 39 colleges in Delhi University (DU) that have complied fully with the disability quota, 12 colleges have partially complied and 31 colleges have not complied at all."

The court was hearing a public interest petition seeking an implementation of the law on quota for disabled candidates for teaching posts.

Sambhavana Trust, a registered society of disabled persons, had alleged that the varsity and its colleges had not implemented the law even 15 years after the Parliament passed it and six years after the court's direction in this regard.

It was also submitted that the university, after enactment of the law, had passed a resolution in 1996 to provide three percent reservation for the disabled, out of which two percent was to be given to the visibly handicapped and one percent to orthopaedically handicapped. IANS (This is miquoted in the media, the correct version as 1.5% to the Visually Impaired and 1.5% to the Orthopaedically Impaired candidates)

Teacher with Cerebral Palsy gets justice from Supreme Court

Dear Friends,

This order from Hon'ble Justice ALTAMAS KABIR,  Supreme Court of India, is remarkable in many sense. The order is indicative of the apathy of certain implementing authorities and lack of awareness and sesitivity even at the level of the High Court when it comes to ensure equal opportunities and rights to Citizens with disabilities.

Click here to access the Detailed Order titled Syed Bashir-ud-din Qadri Vs. Nazir Ahmed Shah &Ors in CIVIL APPEAL NOS.2281-2282 OF 2010, (Arising out of SLP(C)Nos.10669-70 of 2008)

regards
SC Vashishth

Here is the news coverage.

Jammu and Kashmir High Court insensitive to cerebral palsy victim: Supreme Court

In ordering teacher's dismissal, it has dealt with case mechanically

Expressing concern over the shabby treatment meted out to disabled persons while considering them for government jobs, the Supreme Court has said these cases must be handled with sensitivity and not with bureaucratic apathy.

Dealing with an appeal filed by a person afflicted with cerebral palsy, a Bench of Justices Altamas Kabir and Cyriac Joseph said: “It has to be kept in mind that this is not one of the normal cases relating to a person's claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity.”

Syed Bashir-ud-din Qadri, a B.Sc. graduate, was appointed Rehbar-e-Taleem (teacher) in a government school at Pulwama by the Jammu and Kashmir government under the merit quota for physically challenged candidates. Two committees appointed by the government also approved his appointment after noting that he was capable of discharging his duties. But, acting on a petition from Nazir Ahmed Shah, the High Court set aside his appointment.

Allowing the appeal against this judgment, the Supreme Court said: “The appellant is a person suffering from cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds.” The Bench pulled up the High Court for ordering his dismissal, and directed his reinstatement forthwith with all notional service benefits.

Writing the judgment, Justice Kabir said: “It is unfortunate that in spite of the positive aspects of the appellant functioning as Rehbar-e-Taleem and the clear and unambiguous object of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, the High Court adopted a view which was not compatible therewith. The High Court has dealt with the matter mechanically, without even referring to the Act or even the provisions of Sections 22 and 27 thereof.”

The Bench said: “Instead, the High Court chose a rather unusual method in assessing the appellant's capacity to function as a teacher by calling him to appear before the court and to respond to questions put to him. The High Court appeared to be insensitive to the fact that as a victim of cerebral palsy, the appellant suffered from a slight speech disability which must have worsened on account of nervousness when asked to appear before the court to answer questions.”

As disability did not impede the appellant from discharging his duties, the High Court ought not to have directed the termination of his services, the Bench said.

Thursday, March 11, 2010

Discharged on request with undertaking- will not seek pension- illegal, arbitrary & bad in law

 Dear friends,

Here is a fit case that has come to light which reinforces that the principals of natural justice can't be overruled with illegal undertakings got signed from the outgoing employees. Disregarding the earlier rejection of the petition by lower court and also refusal from Punjab and Haryana High court, the Chandigarh bench of the Armed Forces Tribunal (AFT) decided the disability pension case in favour of the retired subedar, a day before i.e. on 09th March 2010.

The Subedar was discharged on his own request and the employer got an undertaking signed from him that he would not claim any pension. The court held it absoutely illegal, arbitrary and bad in law. Though the matter took a long time but finally some justice seems to be coming through.

This matter also indicates that specific courts can do much better job in rendering justice than a regular or general court. The same holds true for matters relating to disability- where our experience confirms that the Court of Chief Commissioner-Disabilities constituted under the Persons with Disabilities Act 1995 has done far better job while CAT and High Court went on against the petitioners in similar matters.

regards
SC Vashishth, Advocate-Disability Rights

To read from source click here:  VRS no ground for rejecting pension, says defence tribunal

The Chandigarh bench of the Armed Forces Tribunal (AFT) decided a disability pension case in favour of a retired subedar on Tuesday. The case had earlier been rejected by a lower court and the Punjab and Haryana High Court on the grounds that the army personnel had given an undertaking at the time of voluntary retirement stating he would not claim disability pension.

Citing the decision of the Division Bench of the Delhi High Court in the case of Mahavir Singh Narwal versus Union of India of 2005 in support of this case, the Chandigarh bench of AFT, comprising Justice Ghanshyam Prasad and Lieutenant General (retired) Justice N S Brar, decided that the lower court was neither legal nor justified and had wrongly rejected the suit of the petitioner.

The bench decided that the petitioner, former subedar Rohtash Singh, resident of Umrawal village, district Bhiwani, was entitled to get disability pension from the date of his discharge plus the arrears of three years prior to filing of the suit with eight per cent annual interest. It was stated that the rejection of Singh’s claim for grant of disability pension on the grounds that he was discharged from service at his own request and gave an undertaking that he would not claim any pension was absolutely illegal, arbitrary and bad in law.

Rohtash Singh joined the Regiment of Artillery on May 25, 1967. He had a head injury after he met with a serious accident on September 26, 1989.

The medical board proceedings conducted by the Military Hospital in Ambala Cantonment awarded him 30 per cent disability and he was discharged on September 1, 1992.

He approached the appropriate authority for the grant of disability pension, which was rejected by the Artillery Record, Nasik, on January 12, 1994, on the plea that he was discharged at his own request and hence not entitled for disability pension. He also filed an appeal against the rejection of his appeal which was also rejected by the competent authority on July 22, 1994.

The Punjab and Haryana High Court relegated the matter to the civil court on August 12, 2005. The civil court also rejected Singh’s appeal on the grounds that he was discharged from service at his own request on extreme compassionate grounds as per the Army Headquarters and he has approached the court after the lapse of nine years of rejection of his appeal.

Monday, February 22, 2010

Supreme Court of Zimbabwe rules in favour of Independent Voting rights for PWDs


Political Editor

BOOSTED by the recent Constitutional Court ruling nullifying a section of the Electoral Act that required polling officers to assist visually impaired voters to cast their ballots, the local disability movement hopes that the proposed new constitution will guarantee them wider rights.

The Supreme Court, sitting as a Constitutional Court, recently declared Section 60 of the Electoral Act null and void saying it violates the principle of the secret ballot, in a landmark case brought up by Mr Simon Mvindi, a visually impaired voter, and five others.

The disability movement views the milestone ruling as the first step in upholding the voting and more rights of the blind. People living with disability hope the ruling would stimulate action towards protecting the voting rights of other disabled groups, including the deaf, dumb, the physically handicapped and persons of short stature.

Welcoming the January Constitutional Court ruling on blind voters, Mr Nyamayabo Mashavakure, a visually impaired teacher, said the basis for the holistic protection of the disabled's rights must be enshrined in the new Constitution.

He said while the ruling was plausible, political parties themselves and the Government through the electoral authority, must consider people with different disabilities in developing political communication materials, such as producing television campaign messages in sign language or posters in Braille.

"The people who approached the court on this matter did a very good job," said Mr Mashavakure.

"The ruling is good, not only for the visually impaired but also for everyone who is living with disability. We hope as we start drafting the new Constitution, we will come up with clear guarantees on the wider rights of the disabled, not just voting rights."

It is estimated that 10 percent of any country's population is disabled, which means that about 1,3 million Zimbabweans have various forms of disability.

The country is in the process of coming up with a new constitution in terms of the Global Political Agreement. Although lack of funding has hampered progress, a significant amount of work has been done since the process started early last year with the appointment of the Parliamentary Select Committee, which is charged with leading the process.

Outreach teams are expected to be dispatched across the country in the next two months to collect the people's views on the proposed supreme law, providing an opportunity for special interest groups like disabled people to contribute.

In his court papers filed in the Supreme Court case, Mr Mvindi recalled that on 29 March 2008 he, accompanied by his wife, went to a polling station hoping to cast his ballot in the harmonised election. However, he said he was taken aback when polling officers told him that they, and not his wife, could legally assist him in the voting process.

"I must hasten to point out that with the marital bond between my wife and I, I am not able to trust anyone more than I trust my wife," he said in the papers.

"She has been by my side throughout the whole period we have been married and from the time I lost my sight completely, she has acted as an aide in all my needs. To my utter shock and surprise, I was denied the right to be assisted by my wife."

The Constitutional Court heard his plea and ruled in his favour and his peers. The full bench unanimously agreed that the section of the Act violated the right of the visually impaired to voting by secret ballot and declared it unconstitutional.

"It is ordered that Section 60 of the Electoral Act (Chapter 2:13) be and is hereby declared to be ultra vires sections 23A (2) (a) of the Constitution of Zimbabwe. Accordingly, Section 60 of the Electoral Act (Chapter 2:13) be and is hereby declared null and void, and is struck down," ruled Chief Justice Godfrey Chidyausiku.

Deputy Chief Justice Luke Malaba and Justices Wilson Sandura, Misheck Cheda and Paddington Garwe concurred.

Advocate Happias Zhou, who represented Mr Mvindi and others, said although his clients were blind, they were not illiterate. He said that the notion that the blind cannot exercise their voting rights other than in the presence of the persons stated in Section 60 of the Act was clear interference with the secrecy of the vote. He suggested that ideal secret voting for the blind people would allow voters to be accompanied by people they trusted.

It was submitted that in other countries, the visually impaired vote on their own on tactile Braille ballots, enlarged print, electronic ballot and other means.

The Minister of Justice and Legal Affairs, Patrick Chinamasa said he appreciated the need for the changes, but the electoral authority does not have funds to ensure that the special ballot papers, electronic ballots are made available.

Mr Mashavakure said most people who are visually impaired shunned voting for fear of possible political reprisals because the Electoral Act required them to disclose their political preferences to polling officers, who are essentially strangers to them.

He said if the Government does not have resources to provide special voting materials for the blind, it must allow the visually impaired to be assisted by their own aides during voting, even on common ballots. This, he said, removes the expense from the Government and places it on the disabled voter.

He said the new constitution must have a non-discriminatory disability clause as opposed to the current one, specifically Section 23 of Constitutional Amendment Number 17, which outlaws discrimination on the basis of physical disability only.

"Physical disability is not the only form of disability," he argued.

"There is also the question of language. If you look at the Kariba Draft for instance, it gives languages that are spoken in the country like Shona, Ndebele, Venda and others. However it leaves out one important language - sign language."

He said the National Constitutional Assembly draft has also its limitations.

"Its disability clause, which is Section 41 I think, gravitates towards the medical model of disability. It suggests that people living with disability are sick or something like that, but it must be known that they were ill at the point that caused their disability, but are now fine. So the constitution must be general in its articulation of disability, not specifying things like 'physical disability' or 'protecting oral languages', excluding sign language."

Mr Tsarai Mungoni, programmes officer (research and advocacy) at the National Association of the Societies for the Care of the Handicapped (Nascoh) said disability rights must be clearly spelt out in the Bill of Rights, adding that the Government must assist the disabled with social grants.

"Disability is expensive to manage," he said, "so people with disability need a social protection scheme in form of a disability grant, to be given to any disabled person, whether they are employed or not. This will serve to mitigate against disability-induced poverty. The Constitution must also clearly provide for affirmative action in terms of economic empowerment, education and representation in private and public sectors."

Mr Mungoni, who is a member of the Thematic Committee on Disability in the Select Committee, decried the fact that out of a population of 1,3 million disabled people in the country, about 20 of them are in the sub-committee of the handicapped.

He added that even in Parliament, there is no MP representing the disabled.

"That is where it starts — lack of representation," he said. "But we are saying the constitution must state a quota to be held by the disabled in Parliament and other critical areas."

Thursday, January 21, 2010

Delhi High Court disposes off the PIL in favour of Inclusive Education in Govt. Schools in Delhi

Dear Friends,

So finally the Delhi High Court has disposed of the Public Interest Litigation No. W.P.(C) 6771/2008, Social Jurist Vs. Govt. of NCT of Delhi & Anr, yesterday i.e. on 20.01.2010. The final order merely disposes off the petition while making its earlier directions final which need to be implemented and the Committee appointed for the purpose will oversee its implementation.

This PIL has brought to sharp focus the precarious condition of the disabled children in the Government Schools. The situation was getting worse as disability was left to the NGOs to handle as if the state only had a role of giving out doles to few NGOs working on this. This led to uprooting of many children with disabilities especially the Visually impaired and the Hearing impaired to cities where some facilities existed. While children with other disabilities suffered in silence with no school ready to take them for they had no infrastructure or support to teach them.

The judiciary has restored the faith of people with disabilities, their parents, families, friends and supporters, NGOs that with this positive judgement, situations will change for them in the Government Schools too and inclusive education will not get restricted to ideological books only.

If this judgement is to be implemented, it would require a large number of special educators, therapists and supporting staff trained in sign language, braille and teaching techniques to include all by using multi-sensory methods. A daunting task both for the Govt. and as well as Rehabilitation Council of India. RCI will have to make sure that quality of training is maintained on highest standards in all their affiliated colleges, institutes. In the past there have been several cases where there were questions raised on quality of training in certain institutions. This would be necessary to protect the future of children with disabilities in mainstream (inclusive) education.

While the Education Department of Delhi Government has initiated the process of changing the Recruitment Rules to include Special Educators, other rehabilitation professionals have not been thought about as yet. To make inclusive education a reality, children with disabilities would require support of therapists, rehabilitation professional among all which should be considered by the Government.

Now with Mr. Agrawal been appointed Chairman of a Committee to oversee implementation of Right to Education of Disabled Children, these issues could be taken up with the Committee and necessary inclusion of more rehab professionals could be effected.

Recently, Central Board of Secondary Education (CBSE) has also indicated through a Categorical Circular that they would go to the extent of de-recognizing the Schools if any school dared to deny admission to a child with disability. This is a huge step in policy as well as in the domestic law of India - a step further to realize the mandate of UNCRPD.

We hope we will together face the challenges that might come in the way of realizing inclusive education a reality to make our nation a happier, welcoming & rights based place for its diverse population including those experiencing disability of any kind.

Regards

SC Vashishth
Advocate-Disability Rights
subhashvashishth@gmail.com
09811125521

Govt. brings in Notification to give equal benefit under PLI Scheme, but is that equal indeed?

Refer to my earlier post on Government seeking six week more time to bring in an appropriate insurance scheme which doesn't discriminate employees with disabilities.

After a prolonged period finally they came up with a notification on the last date of hearing which provides the maximum insurance limit up to 10 lacs as available to other employees. You can view the notification of Department of Post by clicking here: Notification dated 04th January 2010


In other words with this notification the maximum limit of insurance for physically handicapped persons has been made equal with maximum limit prescribed under Rule 3 of POIF Rules and revised from time to time to ensure non-discrimination and equality with other employees.

Consequently, POIF Rules have been amended to include Physically Disabled employees also. However, what remains to be seen is that the extra premium being charged from the employees with disabilities has yet not been addressed which would actually go on to prove that the insurance scheme is still discriminatory against employees with disabilities.

I am hopeful that they would address this lacunae also and not ask employees with disabilities to cough up extra premium for an insurance amount that is equal to other employees.

regards

Subhash Chandra Vashishth
Advocate-Disability Rights

Friday, November 13, 2009

Railways continues to discriminate against Persons with Disabilities

Dear Friends,

Laws fail to work when social attitudes and mindsets are rotten, diseased and highly biased towards persons with disabilities. Defect, abnormality, less fortunate, to be dealt with pity and not equal are what prevalent in our society still!

To top the list of such organisation is Indian Railways. They refuse to abide by law. Railways is a sea with so many divisions, branches, regions and due to lack of a uniform, transparent and effective system in place, rights of people get often abused at the whims and fancies of certain officials who continue to harbor such attitudes against the citizens with disabilities. This is precisely the reason that the Railways have not been able to fill up their backlog of jobs for disabled persons in a transparent manner despite Delhi High Court orders on a PIL filed by AICB, Delhi.

The present case is of Shri Jayanta Kumar Khamari, who wanted to join Railway Engineering Service and has been forcibly given Military Engineering Service. Result declared by Railways indicates his name on page 3 rank 38. Result 2007. He is still awaiting his choice posting even after two years of clearing the Indian Engineering Service. Reason- he doesn't have three fingers in the right hand!

Any physiotherapist/occupational therapist or orthopedic surgeon would opine that if one has thumb opposition available in the hand, majority of jobs requiring fine finger dexterity can be easily performed. Also in the present case, Jayanta functionally uses his left hand as efficiently as his right hand but Railway believes he can not work efficiently and his disability will affect his work. So they came up with a plea that they don't have any post identified for such candidate.

And mind you, the gentleman is working as Junior Engineer with CPWD for past several years with no adverse remarks on productivity due to disability!

High Court of Orissa has categorically expressed in its order, "We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"

Hope good sense of law and human rights will prevail and Railways will make itself more receptive to diversity (read) employees with Disabilities to be contributing members of their workforce.

warm regards

Subhash Chandra Vashishth
Advocate & Consultant -Disability Rights
0981125521, subhashvashishth@gmail.com

Click here to read from Source: Even Rahul Gandhi Failed Me

Jayanta Kumar Khamari, an Indian Engineering Service graduate, is fighting for a job in the Indian Railway Service of Engineering. He says he was assured by many leaders, including Gandhi, but the Railways denied him his choice as he doesn't have three fingers on his right hand

Rahul Gandhi, the scion of the most powerful family in the country, can give cold feet to his veteran political opponents. Yet, there are things which are beyond his reach too. Ensuring a job with the Indian Railways, for instance.

That too, despite a High Court order in support of the applicant.

Jayanta Kumar Khamari, from Bhubaneswar, met the Congress general secretary in hope that he will be able to get justice with the young leader's intervention. However, even after receiving assurances from Gandhi, the 35-year-old Indian Engineering Service graduate continues to work in the Military Engineering Service, despite achieving 35th rank in the merit list that qualifies him for the Indian Railway Service of Engineering (IRSE).

Handicap trouble

Even the Railways has no qualms about Khamari's qualification. The problem lies in his right hand that is devoid of any fingers except for the thumb. Khamari suffered from a consumption disease in his childhood, thereby causing the amputation of four fingers in his right hand.

However, Khamari turned ambidextrous and is now able to use his left hand as efficiently as his right. But, the Railways believes the disability could become a hurdle in his way of achieving success as an engineer and therefore, he was refused his preferred choice of service.

"I appeared before the medical board, which recommended me for field work after examining my hand. The Railway Board was the nodal authority for appointment and it did not take up my case, as per my choice for the Indian Railway Service of Engineers," Khamari said.

For the last two years, Khamari has been waging a pitched battle against the alleged discrimination against him.

Even ten years of Khamari's experience as a junior engineer with the Central Public Works Department (CPWD) failed to convince the bosses at the Railway Board to allow him to achieve what he truly deserved.

In the hope that the 'most powerful leader in the ruling party' (Rahul Gandhi) will ensure his choice of job, Khamari met him in August last year. But contrary to his belief in the omnipotence of the scion of the Nehru-Gandhi family, nothing happened.

Not only Gandhi, many others, including the Minister of State for Railways Naranbhai Rathwa, did not pursue Khamari's case.

"I met the chairman and secretary of the Railway Board. I also met Sanjay Mitra, joint secretary and Satyanarayan Sahu, director at the Prime Minister's Office but even they could not help me," Khamari told MiD DAY.

In court

The young engineer, however, did not lose hope and moved court against the alleged discrimination against his disability by the Railways. He lost in the lower courts, initially, yet continued his battle.

Now, Khamari has the backing of a favourable order by the Orissa High Court and an equally damning assessment of the discrimination by the Railways from the Chief Commissioner for Persons with Disabilities (CCPD).


Long fight


Apart from a frustrating wait for what he deserved, Khamari had to face several other hardships to shuttle between Bhubaneswar and Delhi.

"When my case was pending with the CCPD, I stayed in Delhi for almost two months. During that period, almost for a month, I stayed at Jagannath temple, near IIT. And then with my friends in Jia Sarai, Katwaria Sarai and Ber Sarai," said Khamari. But, now with the High Court by his side, it seems that Khamari has finally got his 'hand of God'.

What the law says

Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that the appropriate government in every establishment shall appoint such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for the persons suffering from:
i. Blindness or low vision
ii. Hearing impairment
iii. Locomotor disability or cerebral palsy, in the posts identified for each disability.

The proviso to Section 33 of the Act states the appropriate government body is at liberty to exempt any establishment from the provisions of this section by notification. From the order of the Chief Commissioner it appears there is no notification exempting the Railway from the purview of Section 33 of the Act.

The High Court said...

"We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Accordingly, we direct the Railway Board to issue necessary orders in favour of the petitioner in terms of the order of the Chief Commissioner within a period of two months from the date of receipt of this order." Justices BP Ray and BP Das, September 17, 2009

Monday, November 9, 2009

Awaited Judgement on Driving Licences to the Deaf

Dear All

I am eagerly waiting for the judgement but each time the Learned ASG has been seeking time on behalf of Govt. of India to frame rules!

Waiting for the day when he will come in the court with amended rules!

regards

Subhash

India's deaf may get licence to drive

The Government of India is considering issuing driving licences to hearing impaired people by amending the Motor Vehicles Act

Published on 11/9/2009 2:08:16 PM
By Kanu Sarda

New Delhi: India is one of the few countries in the world where the hearing impaired are not allowed to drive. But this may change soon, with the government informing the Delhi High Court it is considering changing its rules.

"We are considering issuing driving licences to hearing impaired people and thinking of amending our rules and regulations," Additional Solicitor General AS Chandiok informed a division bench of the High Court comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar.

The court has granted the government three months' time to take a decision and posted the matter for December 16.

At present, the Motor Vehicles Act prohibits the deaf from obtaining a driver's licence on the ground that they could be a source of danger to the public. There is around 50 million hearing impaired in India.

The court was hearing a public interest petition by the National Association of the Deaf (NAD), seeking a direction to quash the requirement of having no hearing impairment for the issuance of a driving licence.

According to the NAD, the deaf are allowed to drive all over the world except in 26 countries including India.

"The only reason why India is not willing to issue licences is that Indian vehicles lack the special gadgets that other countries' vehicles have. But we are considering the same and hoping that we will be able to amend some rules," Chandiok informed the bench.

According to medical experts, those who can hear up to 60 decibels with the use of a hearing aid can be permitted to hold a driving licence for private vehicles, while those with a hearing level of up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.

According to the petitioner, even the Delhi Police website indicates that deaf people can drive and states, "There is no reason why a deaf person cannot drive a private motorcar. However, the possibility of additional rear vision mirrors may need to be considered."

Delhi High Court relief to disabled quota suspended

Trying to know more about it, hence can't comment unless i see the order for myself!
regards
Subhash

Source: IANS
New Delhi, Nov 6 (IANS) The Supreme Court Friday suspended a Delhi High Court order to the union government to provide three percent reservation in state jobs to physically challenged persons as per a special law that accords one percent quota for visually impaired candidates.

A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam and Justice Deepak Verma suspended the high court order saying: “We are staying the high court directions. They are prima facie incorrect.”

The bench, however, clarified that it was not suspending the law for three percent reservation in state jobs to physically challenged persons, the Disabilities Act.

The apex court gave the order on an appeal by the union government challenging a Delhi High Court order, which had directed the centre to fully comply with the Disabilities Act and reserve three per cent seats for diabled persons according to its 1996 notification.

While granting the relief to the union government, the bench refused to heed the plea of National Federation of the Blind which wanted that the High Court order be allowed to operate.

Advocate Pratiti Rungta, himself visually impaired, who appeared for the federation, opposed the government’s appeal but the bench declined it saying “it is not possible to continue with the high court order.”

Rungta’s failed to convince the bench that no recruitment has been made under the Act.

Additional Solicitor General Indira Jaising contended that the directions of the high court were not workable.

The apex court had earlier directed the government to file a detailed status report regarding the extent to which the posts had been identified and filled up and also what steps had been taken to fill up the vacancies that had arisen since the Act has gone into force in 1996. The government is yet to file the status report.