Thursday, August 11, 2011

Rights of Students to see their answer sheets confirmed by SC


Dear Friends,

The Supreme Court has finally confirmed that all students have a rights to inspect and get a photocopy of their answer sheets after their evaluation under the RTI. I see this particularly coming handy to lakhs of students and candidates with disabilities, whose results are often withheld by the examining bodies in an attempt to thwart their induction/recruitment.

I have several of such experiences, where my clients with disabilities were subjected to this silent discrimination. And it was only after our seeking the details of marks obtained under RTI Act, that the malady came to fore. But, the boards did not allow us to see our copy whether what they said was correct. This is going to be a great deterrent for the authorities/examining bodies especially in the recruitment examinations, to discriminate against persons with disabilities or practice a biased approach.

regards
SC Vashishth   

To read from source click the link below:


They have the right to inspect and photocopy their answer sheets after their evaluation under the Right to Information (RTI) Act

Submitted on 08/10/2011 - 12:16:47 PM

New Delhi: The Supreme Court has said that students have the right to inspect and photocopy their answer sheets after their evaluation under the Right to Information (RTI) Act.

The apex court bench of Justices RV Raveendran and AK Patnaik allowed the disclosure of the answer sheets of the examination conducted by boards, universities, institutions and public service commissions, when it upheld the Calcutta High Court judgment that permitted the students to inspect their answer sheets.

The apex court pronounced its verdict saying that evaluated answer sheets come under the definition of "information" and reiterated the duty of the public authority under the transparency law to allow maximum disclosure as envisaged by the RTI Act.

The case reached the apex court from high court which by its March 28, 2008, judgment permitted a student, Pritam Rooj, to inspect his answer sheets. Rooj was a student of mathematics in Presidency College.

In 2006, when he sat for the first part of degree examination he secured 52 per cent marks. In the second year he got 208 out of 400 marks and got just 28 marks out of 100 in fifth papers. Upon seeking revaluation, his marks increased by four in the fifth paper.

He contended that his poor marks stood in the way of his getting admission in post-graduation course and applied to inspect his mark sheet under the RTI law which was rejected.

The university said that the answer sheets of an examinee cannot be shared. The High Court overruled it. The order was challenged in apex court by the Central Board of Secondary Education (CBSE) and the West Bengal Board of Secondary Education, among others.

Friday, August 5, 2011

OBC seats can’t be converted into general ones

A Supreme Court bench said conversion of seats reserved for OBC to general category seats in central educational institutions was not permissible

New Delhi: Conversion of seats reserved for students belonging to the Other Backward Classes (OBC) to general category seats in central educational institutions was not permissible, the Supreme Court has ruled.
The apex court bench of Justice RV Raveendran and Justice AK Patnaik said this while reserving its verdict on a petition by PV Indiresan, former Director of Indian Institute of Technology, Chennai.

The petitioner challenged the September 7, 2010, verdict of the Delhi High Court which said that the minimum eligibility marks for admission under the OBC category would be 10 per cent below the minimum eligibility marks fixed for general category students.

The process to take away the OBC seats for conversion into general category seats was not permissible, Justice Raveendran said, reports IANS.

The court said this when senior Counsel KK Venugopal, appearing for the petitioner, said that in case the court decided the issue against him then it must ensure that 50 per cent seats earmarked for general category students were not encroached upon by OBC candidates even if some of them entered a university by taking the merit route.
When a lawyer referred to Justice Raveendran's observation that rules of the game couldn't be changed after its start, the judges said that what they meant was that it had to be decided in advance at what point the process of the admission of the OBC students under the reserved category would start and what would be the cut-off marks.
Venugopal sought to make a distinction between the reservation for the Scheduled Castes/Scheduled Tribes and the OBC and said they could not be placed at par because social ostracism suffered by the former did not visit the latter.

Justice Patnaik asked Venugopal that when the law used the same language for extending reservation to the OBC as it did in the case of SC/ST, then how he could interpret it differently.

While reserving its verdict, the court gave all the contending parties time till Monday to submit their written submissions.

Monday, July 18, 2011

Disability pension only if disability is attributable to military service, rules SC

Dear Friends,


Please refer to my earlier post dated 28 October 2010 when Punjab and Haryana High Court ruled that a Soldier should be entitled to disability pension if disability occurs during service, even while on leave - whether or not it is attributable to military service.


However, after the Army went in appeal before the Hon'ble Supreme Court, the SC in a recent judgement has clarified that for the injury not attributable to the military duty, the defence personnel are only entitled to full normal pension and not to any additional disabilty pension!


To read the news from source click here: The Hindu


regards
SC Vashishth, Advocate

“Disability pension to soldiers only if injury sustained on duty”



For injury not attributable to the service, personnel only entitled to full normal pension!
A military personnel is entitled to ‘disability pension’ only if the injury is sustained during the course of military duty and not for one sustained in an accident when he is on leave, away from the place of work, the Supreme Court has held.  A Bench of Justices P. Sathasivam and A.K. Patnaik said if the injury was not attributable to the service and was not connected with the service, a personnel would only be entitled to “full normal pension” as per the regulations.
In the instant case, the respondent Jujhar Singh joined the Army in 1978. On March 26, 1987, when he was on annual leave to his native place, he met with an accident and sustained severe injuries and was admitted in a hospital from March 26 to January 20, 1989.   Initially, his disability was assessed at 20 per cent and later at 60 per cent and he retired on July 1, 1998 and was granted full normal pension.  His plea for disability pension was awarded by a single judge of the Punjab and Haryana High Court and confirmed by a Division Bench. The present appeal by the Union of India is directed against this judgment.  
It was argued by the Centre that the injuries sustained by the respondent were not attributable to the service and were not connected with it.  The disability had neither occurred in the course of employment nor attributable to or aggravated by military service and hence, he was not entitled to disability pension.  Allowing the appeal, the Supreme Court said: “It is not in dispute that the respondent was on annual leave when he met with a scooter accident as a pillion rider and sustained injuries at his native place. He was not on military duty at the time of the accident in terms of Para 12 (d) of Entitlement Rules, 1982.   ‘
“In view of the same, the injuries sustained cannot be held to be attributable to the military service. The opinion of the Medical Board makes it clear that the injury, particularly, the fracture, is not attributable to service and it is not connected with service.”   Writing the judgment, Justice Sathasivam said the disability of the respondent was not covered under Regulation 179 of the Pension Regulations for the Army (Part I) 1961.  The Bench said: “The medical authorities have recorded a specific finding to the effect that the disability is neither attributable to nor was aggravated by the military service. This fact has not been appreciated either by the Single Judge or by the Division Bench of the High Court.”

Sunday, April 3, 2011

Delhi High Court questions discrimination in Online Reservation in Railways



HC backs e-ticketing for disabled

Read the news directly from source:
Supporting the idea of e-ticketing facility for the physically challenged, the Delhi High Court on Wednesday issued notices to the Railways and the central government on a PIL demanding web reservation for them at concessional rates.

A Bench headed by Chief Justice Dipak Misra said the authorities must first display the sensitivity and that the technical requirements could be taken care of subsequently.

Admitting a PIL filed by advocate Pankaj Sinha, a visually challenged lawyer, the Bench directed the counsel for the Railways and Additional Solicitor General A S Chandhiok, appearing for the central government, to explain why facility was denied to physically challenged people.

The Bench dismissed the argument of the Railways counsel that the physically challenged were not given the facility of e-ticketing because of concessions they availed and that their documents regarding the disability were to be verified first.

“How can you place it as a justification? They can always be asked to show documents before they start or during travel,” the Bench observed.

The court will now hear the matter on May 18.

Friday, March 25, 2011

Deaf seek level field on disability


Dear Friends,
Issues of bias within disabilities is becoming a regular discussion point. Though the disability groups try to avoid such a conflicting situation among disabilities and pose a unified front to advocate for their rights, however these issues are now open secrets. The bureaucracy and employers are taking advantage of this and openly discriminating in favour of one disability and against the other while filling up the disability quota provided by the law.
We have seen in the past that the person with less disability is preferred to fill up the vacant job quota. Often those with less than 40% disability (as required by law)  with fictitious certificates claiming to be 40% disability get in to the quota leaving the actual needy stakeholders in lurch. The employers raise no voice because the get (at least that is what the employers think) a more able?? and efficient??? employee in the disabled category which they have to adhere to in terms of The Persons with Disabilities Act. This is one side of the issue.
The other side of the issue is that there is open discrimination within disabilities that currently are eligible to be considered against disability quota in the Government jobs. Those who minor physically disabilities are preferred to those with more severe physical disabilities (such as a crutch user is preferred to a wheel chair user or those with Post Polio Residual Paralysis are preferred to those with Cerebral Palsy, a partial hearing impaired with speech is preferred to deaf, low vision is preferred to blind and likewise..). 
However,  in employment, it is the deaf who get left out. The results of past five years of UPSC exams conducted for Civil Services indicates this bias very categorically. There has to be a mechanism to address such discrepancies which only leads to rivalry among the disability groups. The currently disability law in India only provides for reservation in employment @ 1% each for the Hearing impaired, Low Vision & Blind and Orthopedic impaired. And now we are already witnessing many other groups who have been left out for various reasons from this ambit, raising their concerns vociferously in the consultations being organised for finalizing a new disability law for India in tune with new UN Convention on Rights of Persons with Disabilities.
The Government should evolve a clear cut mechanism to check discrepancies and subjective biases so that transparency is maintained and justice is done to the stakeholders.  The issue brought out before the court by Deaf Employees Association is an indicator that all is not well and soon you may find courts flooding with similar petitions from other groups. 
regards
SC Vashishth, Advocate
Here is the news item:

Mar 19, 2011, 03.52am IST


NEW DELHI: The hearing impaired on Friday moved the Supreme Court seeking parity with the blind and other physically challenged people in government service in promotions and allowance entitlements.
A bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar wanted petitioners — "Deaf Employees Welfare Association" and " Railway Employees Association of Deaf and Dumb" — to make a representation to the ministry of social justice and empowerment about their grievance.

However, solicitor general Gopal Subramaniam, taking note of the complaint of discrimination by the hearing impaired government employees, agreed to entrust the concerned department to examine the issues raised by the petitioner through advocate Kamal Kumar Pandey.
The bench asked the two associations to give the SG a copy of their petition and wanted the ministry concerned to report back to the court with its stand in four weeks.
Quoting Article 41 of the Constitution obliging governments to provide effective mechanism and public assistance to disabled people, the petitioners said prior to 1995, there was no specific legislation to address the rights and needs of the disabled people.
The governments confined their efforts to providing medical rehabilitation and removal of the stigma limited to visible disabilities like blindness, orthopaedically handicapped and leprosy, they said.
However, the concept of disability and the social attitude towards it has undergone a radical change since India signed the "Proclamation for Disabled, Full Participation and Equality for Asia and Pacific Region" in 1992. The Centre framed a national policy for disabled in 1993, which was revised in 2005, and provided 3% reservation to blind, hearing impaired and locomotory disabled people in government jobs.
However, the approach of the central and state governments underwent very little change and they have been discriminating against the the deaf employees by not providing them travelling allowance, on-job training and promotions on a par with the blind and orthopaedically handicapped.

Tuesday, February 15, 2011

Deaf Can Now Legally Drive in India [Judgement included]

Court:              Delhi High Court

Bench:             Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna

Case No.:        W.P.(C) 10849/2009

Case Title:      The National Association of the Deaf & Anr Vs. Union of India

Date of Order: 14 Feb 2011

Case Brief:

Dear Friends,

While the activists and disability rights workers are actively engaged in writing, commenting, criticizing and suggesting on the New Disability Act, this success for the deaf people of India has silently knocked their doors. I have been closely following this case filed by Human Rights Law Network since September 2009 when it was admitted (click here to read my first post in Sep, 09) after an aborted attempt on an earlier date.  

I am so delighted to share with you all that after a wait of several months(click here to read Nov 2009 post)  finally yesterday i.e. on 14th February 2011, in a landmark judgment benefiting 50 million people in the country, the double bench of  Hon'ble Chief Justice Dipak Misra and Justice Sanjiv Khanna, of Delhi High Court delivered their judgement  saying people with hearing impairment can also drive. "If they meet the necessary criteria and pass the test, they will be given driving licences and allowed to drive", the high court said. Hitherto, deaf were barred from appearing in driving tests as the archaic Motor Vehicles Act considered them a source of danger to the public.

A bench headed by chief justice Dipak Misra said, “Even if an applicant is totally deaf, he has to be called for a test. Even if he applies for a learner’s licence without a medical certificate and clears the test, he should be granted a learner’s licence." 

You will notice that the judgement doesn't speak a single word against the Union of India nor against the existing system of issuing licences, yet beautifully carves out a way that deaf people in India can not be discriminated against merely on the basis of their disability!

The Question in Form 1-A [which deals with medical certificate and relates to Rules 5(1), 5(3), 7, 10(a), 14(d) and 18(d)] of MV Act 1988  that was filled up by the doctor,] i.e. "In your opinion, does the applicant suffer from a degree of deafness which would prevent his hearing the ordinary sound signals? " has become irrelevant in light of this judgement! 

The Hon'ble Judges have, without making any comment on the  stand /defence of the Government of India in the case, simply reproduced the same to amuse the readers. I am reproducing  the  major defences of the Government of India for your amusement. For your information these defences are  based on a conclusion of a meeting of all relevant officials from various ministries including Road Transport, Health etc:
(i) Indian roads have far more hazards than in those countries which have been referred to in the petition.  This is evident from the fact that there is highest number of road facilities worldwide occurring due to road crash in India.  Indian roads have dense vehicle population.  The pattern of driving is also mix.  Besides, there is also lack of traffic discipline.  While using the roads, it is predominantly required to give audio signal to the vehicles around to caution other drivers or for giving way.  Such situations are not seen in developed countries.
(ii) Use of rear view mirror may not be a full proof solution because vehicles often are not fitted with such mirrors on both sides. Even if they are fitted on the vehicle, the users often fold them back.
(iii) In case of hilly roads, it is mandatory to blow horn on the sharp as well as blind corners.  The driver would be in a dangerous position if he is unable to hear the audio signal.
(iv) While driving the vehicle, inside noise, such as running of engine, tyre noise etc. is an indicator for the health and safety of the vehicle.  The deaf person will be in an unsafe situation because he will not be able to gather these signals.
(v) Luxury vehicles are often fitted with audio systems.  Loud music inside the vehicle may pose unsafe situation but purely by the choice of the driver and hence, cannot be made a ground for allowing deaf persons to drive.
(vi) The UN Convention on Rights of Persons with Disabilities does not qualify the extent of deafness.
(vii) In developed countries, there is a system for imparting training to deaf people in order to obtain driving licence.  There is no such system prevalent in the country.
(viii) International Driving Permit is valid for one year only and thereafter even a foreign national is required to obtain the driving licence afresh as per the existing rules and regulations in the country.  Thus, analogy given in this regard between the foreign national and Indian national is not correct.
(ix) Every year a large number of accidents took place in the country involving motor vehicles on roads.  Many of them prove to be fatal.  During the year 2007 alone, there were around 4.8 lakhs road accidents which killed around 1.15 lakh people and injured more than 5 lakhs person in India.  While the Government has been making all efforts to bring down the rate of accidents substantially, it cannot afford to take the risk of endangering the lives of deaf drivers as well as other road users.
And finally this Committee opined:  "Hearing levels up to 60 db with use of hearing aid in better ear may be permitted for issue of driving licence for private vehicle and hearing level up to 40 db with hearing aid in better ear may be permitted for issue of driving licence for commercial vehicle.  Persons suffering with severe and persistent vertigo should not be issued a driving licence."

This was like only reiterating what existed earlier!

The Judges in the operative para of the judgement categorically stated the statutory requirement,  "However, we are obliged to certify that if an applicant is totally deaf, he has to be called for the test if he applies for a learner‘s licence without the medical certificate and if he passes the test as required under Rule 11, he  shall be granted the learner‘s licence as that is the statutory requirement.   Similarly, if a person belonging to the said category satisfies the necessary  criteria, he shall be allowed to obtain the licence."

The judges refrained from making any comment on the important issues raised in the writ petition or criticizing the government action. Also they refused to take liberty to enter the domain of legislature on the prayer of changing the policy on the subject and said insegregable facet of the basic structure of the Constitution of India. 

This gives sufficient indication to the Government of India to appropriately change their discriminatory and restrictive practices against persons with hearing impairment. We hope the Government will take appropriate steps to set the malady right.

At my personal level, being a lawyer, I was looking for some strong words from the Hon'ble Court on the conduct of the so called committee of technical people who opined that the deaf can be danger to public without even appreciating the documents on record! However, the court did not comment on any issue that could have directly targeted any government official.

So, silently the purpose has been achieved. I hope the systemic changes will also take place and Deaf people will not be harassed while seeking valid licences.  

Now a passing remark from a stakeholder, "At least now deaf people would be able to drive legally with valid driving licence. Who bothers about going and taking a driving test, when driving licences can be bought through middlemen without even going to RTO in other states, if not in Delhi!"

The jobs doesn't end here. After this judgement, the major work is to spread the word around about this judgement and get the relevant rules changed in all states and union territories across the length and breadth of India. The DPOs and activists have this major role to perform. I want to congratulate my senior colleague Shri Collin Gonsalves, Senior Advocate, Mr. Pankaj Sinha, Advocate and their team for so successfully taking up this case which is almost like re-writing the rules of equality - at least for deaf people of this country. I am sure, my friend Arun Rao and friends from National Association of the Deaf would agree to this. Congratulations to one and all!

regards

SC Vashishth
Advocate, Disability Rights

Click here to read the judgement dated 14 Feb 2011 or read the embedded judgement below:


Wednesday, December 29, 2010

Hi,


First of its kind judgement from a High Court in recent times where the provisions of Section 47 of the Persons with Disabilities Act 1995 have benefited an employee acquiring a mental illness, while in service!  Congratulations to High Court of Madras (read Justice K Chandru) on this progressive judgement, Mr. Narayanan the employee, the disability sector and not to forget the advocate who presented the case!


Here are the links to the case details:


Mental illness can be included under ‘disability'
B. Kolappan



Court directs State department to pay full salary to employee who was relieved from service


Says termination of his services clearly in contravention of Section 47 of the PWD Act

CHENNAI: Mental illness or retardation can be brought within the term ‘disability' under sections of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PWD Act), the Madras High Court has said.
Directing a State government department to pay full salary, including annual increment and other monetary and service benefits, to an employee who was relieved from service on the ground of mental disability, Justice K. Chandru said the benefits should be given from the date of disability till the date of his retirement.
Allowing a petition filed by C. Narayanan, who worked as Assistant in the government Industrial Training Institute (ITI), Justice Chandru also said that the order of the Director of Employment and Training terminating Mr. Narayanan's services was “clearly in contravention” of Section 47 of the PWD Act. Section 47 clearly indicates “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service.”

“It is ironical that the respondents belonged to the Department of Employment and Training. They are expected to advise other departments about the rights of employees in such departments. If the Department of Employment itself is not aware of the provisions of the Act, that really is a sorry state of affairs,” the Judge said.

The authorities' action had betrayed their ignorance of the PWD Act, he said and directed them to pay case cost of Rs.5,000 to Mr. Narayanan for having made him run from court to court against the dismissal.

Mental illness can be included under ‘disability'  
Read more at :  








Mental disability no ground to sack employees: HC


Read more: Mental disability no ground to sack employees: HC - The Times of India http://timesofindia.indiatimes.com/india/Mental-disability-no-ground-to-sack-employees-HC/articleshow/7175522.cms#ixzz19V1cigTe

Monday, December 27, 2010

Disabled employees suffering as employers not aware of disability provisions


"Visually impaired and disabled persons don't require your sympathy, they need a little support," observed the Bombay High Court on Thursday.

While hearing a plea filed by Nilima Surve, who is visually impaired, the high court was surprised that the commissioner of disability had upheld her termination, instead of supporting her.

In November 2006, Chetna College at Bandra had appointed Surve as a junior clerk. But she was dismissed from service four months later. The college had cited "mistakes in her typing" as the reason behind the termination.

The division bench, comprising chief justice Mohit Shah and justice SJ Kathawala, was irked to find that Surve wanted a particular software to be installed to improve her work, instead she was sacked citing "unsatisfactory work".

Surve had approached the commissioner for disability challenging her dismissal stating she had merely sought installation of the software, Jaws, but the college chose to dismiss her in March 2007.

The judges got further annoyed when Surve's counsel Chetan Agrawal pointed out that the commissioner had passed some critical remarks in the order upholding her termination.

One such remark read: "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software."

Additional government pleader agreed that the order was contrary to the legislative intent, after the judges expressed anguish about the observations.

"The order is clearly arbitrary and contrary to the provisions of the [Persons with Disability] Act," Nitin Deshpande said. The high court also called for a meeting of all stakeholders — government officers, NGOs, representatives of visually impaired and handicapped persons — on January 15.

Measures to resolve the problems faced by the disabled will be discussed at the meeting to be held in the conference hall of the high court building in presence of the judges.

Thursday, October 28, 2010

Disability Pension if Army Personal injured while on leave

Dear Friends,

This judgement comes in contrast to other judgement especially of the Delhi High Court which highlighted that the disability should be attributable to military service. From that angle, I feel the Punjab and Haryana High Court has given its judgements taking the holistic view of social justice provisions to those who are in the service of protecting the nation while disagreeing totally with Delhi High Court judgement.

I am hopeful that this trend will boost the morale of the combatant members of the  Armed Forces and Hon'ble Supreme Court will also take an appropriate view in the matter giving benefit to the soldiers when this matter reaches them in appeal. For the update on this matter in the Supreme Court, please refer to my post dated 18 July 2011.

regards
SC Vashishth

Here is the current coverage of the case:


The Punjab and Haryana High Court has ruled that Army personnel will be entitled to disability pension if injured in an accident while on annual/casual leave. As of now, Army personnel who suffer injury during annual leave are denied disability pension.

The order of the Full Bench of the High Court comprising Justices A K Goel, Alok Singh and K Kannan is significant as it disagrees with a judgment given by Full Bench of the Delhi HC on the same issue. With two Full Benches having divergent judgments on the issue, the question of law is all set to be decided by the Supreme Court.

In its 25-page judgment, the Full Bench made it clear that an Army personnel who suffers an injury or meets with an accident during leave will be entitled to disability pension only if the activity, during which he suffers the injury, is compatible with a military activity. For instance, if an Army personnel meets with an accident on leave, he is entitled to disability pension. But he will not be entitled to disability pension if he is injured while engaged in an activity which is not compatible with military service, or gets drunk and enters into a brawl.

The order came on two set of petitions filed by the Union of India against two Army personnel namely former sepoy Sumanjit Singh and former naib subedar Khusbash Singh.



Tribune News Service, Chandigarh, April 5

Army personnel on casual or annual leave shall be considered on duty in case of any mishap, a three-Judge Bench of the Punjab and Haryana High Court today ruled.

The Bench made it clear that to decide their disability pension entitlement, it was to be seen whether the disability was attributable to or aggravated by military service.

With this, the Bench of Justice Adarsh Kumar Goel, Justice K Kannan and Justice Alok Singh has put to rest the controversy on disability pension entitlement of Army personnel suffering disability in accidents while on leave. So far, more often than not they were denied disability pension on the ground of not being on duty, while on leave.

The assertion comes with a rider. The Bench has clarified the only exception is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”.

The ruling came on a bunch of two petitions by the Union of India against two Army personnel. “In both cases, the disability had arisen through accidents during leave.”

Speaking for the Bench, Justice Kannan asserted: “If the Army personnel were on duty and they suffer disability due to natural causes, the issue whether it was attributable to or aggravated by military service will be examined by taking the case of Army personnel as they were and examining whether it was intervention of the Army service that caused the disability….

“In cases where the injury that resulted in the disability was due to an accident, which was not due to natural, pathological, physiological or psychological cause, the question that has to be answered is whether the activity or conduct that led to the accident was the result of any activity that is even remotely connected to military service.

“An activity of an independent business, or avocation or calling that would be inconsistent to military service, and an accident occurring during such activity, cannot be attributable to military service,” the Bench concluded.

Disability Pension

However, to decide their disability pension entitlement in case of any mishap, it is to be seen whether the disability is attributable to or aggravated by military service

Rider in the ruling is “when by the virtue of Rule 11 of the leave rules, he could not be deemed to be on duty, if he had not actually performed duty in that year”


Earlier Delhi High Court Order 


The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

New Delhi, Aug 24 : The Delhi High Court has ruled that an Army man cannot claim disability pension for an injury resulting from an activity not connected with military service.

A Special Bench comprising Justices Vikramjit Sen, Sanjeev Khanna and S L Bhayana passed the verdict following a difference of opinion between the judges in a Division Bench.

While referring to a Supreme Court ruling the Special Bench observed, "Injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension."

"This is so regardless of whether the injury or death has occurred at the place of posting or during the working hours," the Bench added.

The Court dismissed a plea of ex Naik Dilbagh for disability pension in addition to family pension. Dilbagh, in a petition, claimed for the disability pension after he had received a head injury in a road accident on Delhi-Panipat road while going to a school for the admission of his child on December 25, 1993.

Dilbagh was on a casual leave from December 12 to 29, 1993 at the time of the accident.

Friday, October 8, 2010

Disabled Candidates are at par with SC/ST candidates


Dear Friends,

I had the opportunity to read the order of the Hon'ble High Court of Delhi in WP(C) 1352/2008  WP(C) 8750/2009 titled Md. Shah Afzal Vs. Medical Council of India and Anr. delivered on 06.07.2010. I am a little surprised by this move of the High Court in refusing to accept the petitioner's contention that the physically disabled candidates should be treated at par with the SC/ST candidates and merely advising the Government of India to consider the recommendations of Chief Commissioner for Disabilities who had directed all government-aided institutions to extend the relaxation in qualifying marks to physically disabled candidates in order to bring them at par with SC/ST candidates.  

The court in its concluding para said "Although we feel that physically disabled persons should be extended all the rights, privileges and benefits under the said Act so as to ensure that they are not discriminated against and that they come within the social mainstream, we do not agree with the contentions made on behalf of the petitioner that the petitioner, as of right, can claim parity with SC/ST candidates insofar as the relaxation in the minimum marks required is concerned.

The court concluded that insofar as physically disabled persons are concerned, they have a right to reservation but there is no right to relaxation or a concession in the minimum standards. 

In my considered view the stand of Medical Council of India that  physically disabled candidates cannot claim parity with SC/ST candidates as the two stand on entirely different footings is utterly flawed so is the conclusion of the Hon'ble Court. 

Argument -1

In the instant case the Hon'ble Court should have looked at the objective of the Persons with Disabilities Act 1995 and should have seen the DoPT Memorandum dated 29 December 2005,. Para No. 22 of the said notification does talk about relaxation of standards of suitability which is often given to the SC/ST categories also. Here is the exercpt:

"22. RELAXATION OF STANDARD OF SUITABILITY: If sufficient number of persons with disabilities are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject to the fitness of these candidates for appointment to the post / posts in question."

Therefore, taking an analogy from the relaxation given here for employment, similar relaxation can easily be given to accommodate candidates with disabilities in the professional education too! 

Argument-2

Also the direction of the Chief Commissioner disabilities who is considered to be a Specialized Court on the law relating to disability, should have been given due importance for the decision of the CCPD was based of the very objective of the Disabilities Act and stand taken by the Government of India vis-a-vis parity between the disabled candidates and those belonging to SC/ST. Both categories have suffered marginalization due to lack of equitable opportunities due to social and environmental barriers and hence were considered for positive discrimination set out in the Indian Constitution by way of reservation despite Right to Equality.

Additionally it is the confirmed policy stand of the Govt. of India that relaxation in standards should be favoured when candidates belonging to reserved categories are not available on the basis of general standard to fill all the vacancies reserved for them. And there is no ambiguity that Persons with Disabilities are in reserved categories.

Argument-3



Hon'ble Supreme Court in Writ Petition (Civil) No. 115/1998 titled All India Confederation of the Blind Versus Union of India and Others on 22.03.2002 had upheld the stand taken by the Chief Commissioner-Disabilities and Govt. of India that by extending the same relaxation to particularly blind/low-vision and in general all disabled at par with SC /ST, would bring parity amongst all persons with disabilities irrespective of their vertical categories. (Click here to read the Supreme Court Order on the IA no 4.)


Lessons from the Case


Therefore, in all probabilities, the Hon'ble High Court of Delhi in the instant matter has erroneously ordered against the settled principals and the explanation as above. I feel the Counsels should do their homework while taking up matters of such public importance. Had the court been appraised of the above settled principal of Govt. of India and the existing order of the Hon'ble Supreme Court, this injustice to the petitioner could have been avoided. Worst is even the Representative of Chief Commissioner-Disability did not point out to the settled and accepted principal in an earlier case before the Supreme Court. I am not aware whether the petitioner had wherewithal to pursue the matter at Supreme Court level and eventually this erroneous judgment finality.

Need of Amendments in the Constitution of India to include Disability


The Honb'e Judge points out in the order "The fact that the physically disabled fall in a different class to the candidates belonging to the SC/ST category, in itself, implies that they could be treated differently just as candidates belonging to the general category are, indeed, treated differently from those belonging to the SC/ST category. The second answer is that what has been given to the SC/ST candidates is a concession. The petitioner, belonging to a physically disabled category, cannot claim such a concession as a right. "

This also indicates that the disability community needs to advocate for an amendment in Article 15(1), 15(2) and in 16(2) the Constitution of India so that discrimination on the basis of disability is checked and also Disability as a category is taken at par along with SC/ST categories.

Article 15(1)) be amended as:

“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them

Article 15(2) be amended as:

No citizen shall, on grounds only of religion, race, caste, sex, place of birth, disabilities (be added) or any of them, be subject to any disability (be deleted), liability, restriction or condition with regard to…”

Article 16(2) be amended as: 
 “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, disabilities (be added) or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State”

This would give a great boost to the moral of persons with disabilities and so to their rights in India and give them parity with other reserved categories under Constitution of India. 

regards
SC Vashishth
Advocate-Disability Rights
+91-9811125521



Indian Express; Utkarsh Anand

In what might be a setback to thousands of physically challenged candidates looking to make careers in medicine, the Delhi High Court on Tuesday ruled that they cannot be given concession in qualifying marks similar to that of Scheduled Castes/Scheduled Tribes (SC/ST) candidates for admissions in MBBS courses in the Capital.

Dismissing a couple of writ petitions filed by a candidate with over 60 per cent locomotive disability, a Division Bench of Justices B D Ahmed and Veena Birbal held that while disabled candidates already had a right of reservation in educational institutions, they could not be given the right to avail concession in the minimum standards prescribed by the Medical Council of India (MCI).

The court noted that though several seats were going waste despite the 3 per cent reservation for the physically challenged due to the candidates’ failure in securing the required 50 (now 45) per cent marks in the qualifying exams, it would rather stick to the legal dimensions of the case.

“For the present, it is sufficient for us to observe that insofar as physically disabled persons are concerned, they have a right to reservation, but there is no right to relaxation or a concession in the minimum standards. And unless and until such a right is established, no mandamus or writ can be issued to any authority to give them the relaxation or concession,” the Bench held.

The writ was filed by Md Shah Afzal, who was denied admission in a Delhi University (DU) college for the MBBS course for failing to get 50 per cent marks in the the Delhi University Medical Entrance Test (DUMET) in 2008 and 2009. He contended before the authorities that the concession given to SC/ST candidates — they need to secure 40 per cent marks to qualify — should also be given to physical disabled candidates.

Afzal subsequently approached the Chief Commissioner under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. The Commissioner then directed DU and the MCI to extend the relaxation to physically challenged candidates as well.

Afzal then approached the High Court and said the MCI had refused to obey the Commissioner’s directive even though the colleges failed to fill up the seats reserved for the physically challenged. Afzal further contended that other reputed institutions like the AIIMS and the IITs had gone ahead to provide disabled candidates the same concession for admission as given to SC/ST candidates.

The MCI also approached the court, saying the Commissioner had overstepped his jurisdiction by issuing directives to them.The Bench then adjudicated the Commissioner’s order and the writ petitions on the basis of legal criteria and dismissed Afzal’s plea. “Although we feel that physically disabled persons should be extended all rights, privileges and benefits under the said Act..., we do not agree that the petitioner, as of right, can claim parity with SC/ST candidates insofar as a relaxation in the minimum marks is concerned,” it held.

The court also set aside the Commissioner’s order, noting that his role was only recommendatory in nature and could not be binding upon the MCI. The Bench, however, asked the MCI and the Centre to give a “serious view” to whether disabled candidates could be allowed the same relaxation in marks as SC/ST candidates.