Thursday, September 26, 2013

Disability Commission directs Railways to install CCTV in Coaches for Disabled

With the rampant misuse of coaches meant for the persons with disabilities by the police personnel and members of public, this decision of the commission should bring in some check on the misuse of the facility. Also the order highlights the  need of awareness and sensitization campaigns amongst police officials and general public.

Here goes the coverage in Times of India:

Nitasha Natu, Sep 20, 2013, 

MUMBAI: The state commission for persons with disabilities has instructed the railways to install CCTVs in coaches reserved for disabled and appoint a special officer to redress their grievances.

The order was passed by the Pune-based commission earlier this month in connection with a complaint filed by Nitin Gaikwad, a graphics designer from Ghatkopar. A graphics designer, Gaikwad had complained of plain-clothes policemen travelling in handicapped coaches with alarming frequency and bullying those who attempted to object.

"I had clicked photographs and videos of rogue cops and presented it before the commission," Gaikwad told TOI.

His counsel, Jayesh Tanna, added, "Once CCTVs are installed, the grabs will provide have great evidentiary value." Both, Gaikwad and Tanna are differently abled and got acquainted with each other on local trains. In April, they entered their complaint against Central Railway, the Government Railway Police (GRP) and the Railway Protection Force (RPF) with the state commission. The commission has ordered the railways to create a separate waiting area or seating area for disabled commuters at each railway station. The order adds that old suburban rakes also be fitted with public announcement systems to give information about the next scheduled halt of the train.

"Strict action needs to be taken against cops and illegal travellers in coaches reserved for the disabled and the prosecution statistics should be put up on pamphlets on platforms and inside compartments. Awareness and sensitization campaigns for cops and the public need to be carried out. Personnel handling railway helplines need to be instructed to attend to calls received from disabled commuters on a priority basis," the order stated.

In their response to the commission, the RPF stated that 40 cops had been arrested since 2012 and Rs 13,600 collected in fines for illegal travel in coaches for the disabled. The RPF also said they had intimated the Mumbai police chief about the menace and that all calls received on the railway helpline (1275) are recorded for monitoring.

"There's a great risk to life and safety of disabled commuters while boarding/alighting at Kalyan, Dombivali, Thane and Ghatkopar stations. The coaches are packed beyond capacity with unauthorized travellers. We are often shoved and pushed around, verbally abused and manhandled. An acquaintance of mine had an accident as a result, adding to his disability. The commission's order should bring some relief," Gaikwad said.

Prosecution against illegal travel in coaches for disabled (Central Railway)

Year 2012 (Jan to Dec)

Arrested: 11743
Fines: Rs 20.31 lakh
Jailed: 29

Year 2013 (Jan to April)

Arrested: 4319
Fines: Rs 8.03 lakh
Jailed: 16

Read from Source..... Times of India


Wednesday, September 25, 2013

Visually Impaired Civil Service aspirants await appointments


The focus of the write-up by Mr. Subhash Ghatage (kafila.org) is the plight of four candidates – all of them visually challenged – who had cleared the UPSC (Union Public Service Commission) examinations way back in 2008, scored more marks than many ‘normal’ students and were still waiting for appointment letters. The Commission as everybody knows is India’s central agency authorised to conduct civil services and other important examinations.

The caller said that he was one among the four and shared with me the long struggle he along with others were engaged in to get their due. Apathy exhibited by people in the higher echelons of the Commission as far as visually challenged persons are concerned is really disturbing. And it was not for the first time that it had failed to give appointment letters to such candidates. Merely three years back Ravi Prakash Gupta had to approach the highest courts of the country namely the Supreme Court to get his appointment letter. Last February it was the Prime Minister’s Office  which had to intervene so that seven candidates from similar category could join their duty.

A recap of the appointments done between the period 1996 to 2008 tells us that only 15 visually challenged candidates have been recommended by UPSC, while almost 6900 vacancies were filled during this period. Among 15, 12 candidates have been recommended or upgraded after court orders.

While officially nothing is said about the inordinate delay by the commission in this particular case, it is evident in their action that candidates from this category are unwelcome. In fact, there seems to be a deliberate attempt to restrict the entry of such candidates, at times even by, glossing over the provisions of the Persons with Disabilities Act, 1995. e.g. A petition by the caller ( Mr Pankaj Srivastava) tells us how in the year 2008

‘[t]otal 891 candidates were declared succesful but only four candidates from visualy challenged category were recommended by the commission, whereas it should be 9 according to the PWD act 1995.’

Despite the fact that Central Administrative Tribunal (CAT) gave a favourable decision, the Commission is still engaged in delaying tactics. It even refused to calculate the backlog according to the necessary provisions of the act since 1996 when the Tribunal specifically asked it to do so. As a report in a leading national daily tells us (Times of India, 16 th Sep 2013) “

Between the four of them, they have filed two applications and one contempt petition against their non-appointment in the Central Administrative Tribunal. The tribunal ruled in their favour each time. There is a High Court stay order on one CAT order of May 2012 directing the authorities to appoint the four candidates, which is to be heard on September 24.”

It was late 70 s when Frank Bowe, a disability rights activist from US had written a monograph ‘Handicapping America’ (1978) in which he tried to explain how the key issue in any debate around disability is the societal response to it. For Bowe, the main point was not the status of physical or mental impairment of a particular person, but the way society develops strategies to cope with it.

One does not know when the obdurate bureaucracy at the Commission would become more aware and sensitive to the fact that there is a sea change in the perception about disability now. If earlier dominant trend in the disability discourse revolved around adoption of ‘social welfare measures’ and the world was bit far away from taking it up as a ‘human rights issue’with the adoption of an international convention in 2006 welfare and charity have been replaced by new rights and freedoms and there is growing recognition that a change of attitude is vital if disabled people are to achieve equal status.

We are told that the commission annually submits a report of its work to the President of India which is also sent to each house of the Parliament for discussion. One just expects that honourable members of the parliament – who have enough lung power left to point out acts of omission and commission on part of the government or the treasury benches ever contemplating strategies to strike back, would at least find time to go through the reports and see for oneself the great hiatus which exists between rosy picture about disability welfare which is presented through the ‘official’ reports and the actual situation on the ground.

.......continue to read from source: No country for Visually Challenged by Subhash Ghatade

Schizophrenia - no ground for divorce: Supreme Court

Dear Colleagues,

The Hon'ble Supreme Court of India has confirmed that Schizophrenia can not be ground of divorce. The Court on the contrary said if the wife is still suffering from the condition, the husband must get her the right treatment by sticking to her treatment plan and make best attempts to get her better. The court clarified that grant of a decree or dissolution of marriage is not in the best interests of either the respondent or her adolescent daughter.

Here is the news from The Hindu


J. VENKATESAN,  September 19, 2013

“It is a treatable, manageable disease, on par with hypertension and diabetes”

Temporary ill-health including schizophrenia, a mental illness, which is curable, cannot be a ground for divorce under Section 13 (1) (iii) of the Hindu Marriage Act, the Supreme Court has held.

A Bench of Justices G.S. Singhvi and V. Gopala Gowda, quoting Vedic scriptures, said, “Under Hindu law, marriage is an institution, a meeting of two hearts and minds and is something that cannot be taken lightly.”

Writing the judgment, Justice Gowda: said “Marriage is highly revered in India and we are a nation that prides itself on the strong foundation of our marriages, come hell or high water, rain or sunshine…” The partners “must weather storms and embrace sunshine with equanimity. Any person may have bad health, this is not their fault and most times, it is not within their control, as in the present case [in which], the respondent [Kollam Padma Latha] was unwell and was taking treatment. The illness had its fair share of problems. [But] can this be a reason for the appellant [Kollam Chandra Sekhar] to abandon her and seek dissolution of marriage after a child is born out of their union?” Their marriage was solemnised on May 31, 1995 in Kakinada as per Hindu rites and customs.

Dr. Chandra Sekhar’s appeal is directed against the September 28, 2006 common judgment and order passed by the Andhra Pradesh High Court, setting aside the judgment and decree of divorce granted in his favour by the trial court. The High Court held that there was no positive evidence to show that the respondent had suffered from schizophrenia and even if she had suffered from some form of schizophrenia, it could not be said she was suffering from such a serious ailment. “Schizophrenia is a treatable, manageable disease, which can be put on a par with hypertension and diabetes,” it said after examining evidence.

Accepting this verdict, the Bench said: “The High Court has thus rightly set aside the decree of dissolution of marriage and granted a decree of restitution of conjugal rights in favour of the respondent by allowing her petition.”

Pointing out that the respondent had not only completed MBBS but also had done a postgraduate diploma in Medicine and that she was continuously working as a Government Medical Officer, the Bench said: “Had she been suffering from any serious kind of mental disorder, particularly, acute type of schizophrenia, it would have been impossible for her to work in the post. The appellant-husband cannot simply abandon his wife because she is suffering from sickness.” If he felt that she “is still suffering, then she must be given the right treatment. The respondent must stick to her treatment plan and make the best attempts to get better.” Grant of a decree or dissolution of marriage “is not in the best interests of either the respondent or her daughter, who is said to be of adolescent age.” 

....to read from source click here: The Hindu 


And here are comments appeared in Indian Express titled An Unsound Framework on the judgement from our colleague Amba Salelkar, an advocate and fellow at Inclusive Planet Centre for Disability Law and Policy, Chennai 

Matrimonial law is heavily stacked against persons with disabilities

Mental health activists were pleased with the Supreme Court's recent observation that the mere fact of a spouse having "schizophrenia" was not enough ground for divorce under section 13 of the Hindu Marriage Act. The act allows for divorce if a spouse "has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent". The provision itself is controversial, because it includes both diagnosed and un-diagnosed conditions, which effectively makes a judge the sole authority on whether a person is of "unsound mind" or not. Celebrations were more subdued after a closer examination of the judgment.

The judgment laid undue stress on patronizing the institution of marriage, although that is not the focus of this article. It also showed that the Supreme Court has done nothing but uphold an earlier position, laid down in 1988 in a remarkably well-thought-out ruling by Justice Venkatachaliah in Ram Narain Gupta vs Rameshwari Gupta. The ruling took into account literature on psychiatry and jurisprudence to reach its conclusions. One particular section stands out: "Undoubtedly, mental illness is so dis-valued because it strikes at the very roots of our personhood. This is captured in part by the language we use in describing the mentally ill. One is a hysteric, is a neurotic, is an obsessive, is a schizophrenic, is a manic- depressive. On the other hand, one has heart disease, has cancer, has the flu, has malaria, has smallpox".

The grounds for divorce are heavily stacked against persons with disabilities. Besides "unsoundness of mind", leprosy, which results in disability, still remains a ground — despite being completely curable. Till 1976, epilepsy was also included in this list. The only other "health" concern that the law recognises is venereal disease, which strikes at the very heart of "conjugal bliss" and may accompany ground one: adultery.

The legislature, however, did not intend to make "unsoundness of mind" an easy escape route. As Venkatachaliah points out, "If the mere existence of any degree of mental abnormality could justify dissolution of a marriage, few marriages would, indeed, survive in law". The qualification that the petitioner could not "reasonably be expected to live with the respondent" was in the statute books. Then why did the Supreme Court have to reiterate its own position, in a case with identical facts? It does seem to repeat itself quite often, of course, but this instance is significant. Just two years ago, the principal judge of the family court at Chennai stated that 40 per cent of divorce cases before the Chennai court involved allegations of unsoundness of mind.

The experiences of persons with disabilities show that labels, bad enough in themselves, come with a whole set of repercussions. For example, the Reserve Bank of India specifies that persons covered under the National Trust Act, that is, those with cerebral palsy, "mental retardation", autism or multiple disabilities, require a guardian, appointed under the act, to open a bank account. That they may be competent to exercise legal capacity is not even a remote possibility. Every single day, persons with psycho-social disabilities are held incapable of being a spouse, or a parent, by trial courts across the country. Few of them have the facility to move the high courts in appeal, fewer still can knock the on doors of the Supreme Court for justice.

No matter how well intentioned and well drafted the relevant legislation is, its poor and misguided implementation has resulted in discrimination. This should be a cause for concern and reconsideration among policymakers. As a signatory to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), India is obliged to implement Article 23 of the convention — the right to family of persons with disabilities, as well as Article 12 — recognition of legal capacity. In a UNCRPD-compliant framework, the ipso facto granting of divorce on grounds of "unsoundness of mind" would not even be possible. In fact, a person with a psycho-social disability should be allowed to file a petition for divorce on grounds of insufficient care by their spouse — this may come under the purview of the recognized "mental cruelty".

As long as there is a discriminatory provision against persons with psycho-social disabilities, there will be the possibility of misuse. This week's ruling, as well as contemporary records of the experiences of persons with disabilities, underline the fact that things have not changed in the decades between the two judgments. Matrimonial law in the context of persons with disabilities — whether it is the law itself, procedural aspects, the training and sensitivity of judges — needs to be scrutinised and reconsidered, but only after all preconceived notions are left at the door.


To read from source click here: Indian Express

Key Words: Right to Family of persons with disabilities, Legal Capacity of persons with disabilities, Section 13 of Hindu Marriage Act, psycho-social disabilities, UNCRPD, Mental Illness or unsoundness of mind as ground of divorce, 

Wednesday, September 11, 2013

Can blind carry guns in public under the ADA

Changes to USA's Americans with Disabilities Act (the state law) in 2011 allowed those with visual impairments to legally carry guns in public. However, there is a debate in Iowa State of USA between the disability advocates and law enforcement officials who are split over whether or not it’s appropriate for those with limited to no vision to have access to firearms.
In other words can  blind can be discriminated from carrying guns in public spaces merely on the ground of disability! 

In Indian context, I can remember the famous epic of  King Prithviraj Chauhan of Rajasthan who fought a brave battle against the foreign invader Muhammad Ghori. Ghori lost the battle 16 times and was given mercy by the Chauhan. However, 17th time a traitor from Chauhan's kingdom supported Ghori's army and that resulted in defeat of Chauhan who was captured and taken to Afghanistan along with his state poet cum friend Chandbhar by Ghori.  In Ghori's court, Prithviraj and Chandbhar were brought in shackles. Prithviraj was asked to show the art of archery, wherein he could aim and shoot just by hearing the sound. It is also known as Shabdbhedi-baan. Ghori asked him to show him this art. To make game interesting for himself, he got Chauhan's eyes pierced with hot iron rods making him completely blind. We all know what happen in end. The blind Prithvi Raj Chauhan killed Ghori in his court and obviously to meet his own death. Grave of Prithvi Raj Chauhan is present till date next to Ghori's grave.

In another epic, Ramayana, the King Dashratha (father of Lord Rama) who was an expert archer in shooting at the hearing of the sound also accidently killed Shravan Kumar by his arrow taking him to be a deer which resulted in Shraap by Shravan's parents that he too would die of Putra Viyog.

This proves sufficiently that with training, it is not difficult for a completely blind person to use fire arms for one's safety. Hence, the debate is useless in light of settled law as well as the above precedence.

Here is the report covered in Disability Scoop.

By SHAUN HEASLEY

September 10, 2013 

A new debate over disability rights is emerging as Iowa grants permits for people who are blind to carry guns.

Changes to state law in 2011 allowed those with visual impairments to legally carry guns in public. And officials in one Iowa county say they’ve issued permits to at least three people who are legally unable to drive because of their limited sight.

“It seems a little strange, but the way the law reads, we can’t deny them (a permit) just based on that one thing,” Sgt. Jana Abens of the Polk County sheriff’s office told the Des Moines Register.

The situation is leaving disability advocates and law enforcement officials split over whether or not it’s appropriate for those with limited to no vision to have access to firearms.

Cedar County Sheriff Warren Wethington has a daughter who is legally blind and favors training for those with visual impairments to carry weapons, a stance shared by some advocates who say that denying guns because of a disability would be a violation of the Americans with Disabilities Act.

Other law enforcement officials in the state are skeptical, however, and even some advocates say guns may present one area where equal access is unreasonable.

“Although people who are blind can participate fully in nearly all life’s experiences, there are some things, like the operation of a weapon, that may very well be an exception,” Patrick Clancy, superintendent of the Iowa Braille and Sight Saving School, told the newspaper.

Unlike Iowa, some states do consider vision abilities in issuing gun permits. Nebraska and South Carolina require applicants to provide proof of vision, for example. Meanwhile, in Missouri and Minnesota individuals with limited vision may be indirectly disqualified because of requirements to complete a live fire test and hit a target.

Source: Disability Scoop 

Friday, September 6, 2013

HIV no ground fordiscrimination in right to work


Pune, September 6, 2013
Amruta Byatnal

A year after a HIV-positive bus-driver was sacked by the Maharashtra State Road Transport Corporation, the Bombay High Court has given him his job back. Reacting to the verdict, 43-year-old Ramesh Bhamre (name changed) said, “I am happy that I can get my job back now. I wish others don’t have to go through the trauma that I did to get my basic rights.”

The Hindu had reported the stigma faced by the driver in June 2012. (http://bit.do/driver).

Ramesh Bhamre was sacked by the MSRTC in May 2012 on the grounds that he was “unfit to work”. Bhamre, who had been working as a driver since 1999, had told the MSRTC that owing to the treatment he was receiving, he was physically weak. He had requested “light work” rather than being asked to drive heavy vehicles. Stating that there was no legal provision for changing the job profile of HIV-positive employees, the transport authority had removed him from service. But, Bhamre decided to fight the stigma, accusing the MSRTC of discriminating against him because of he was HIV-positive.

Declaring that every citizen had the right to work and could not be discriminated against, a Bombay High Court Bench consisting of Justice Abhay Oak and Revati Mohite-Dhere stated that Bhamre should be reinstated within a week. The Bench also ruled that the State Transport Authority was liable to provide him compensation for the year he spent out of work.

As he stood in front of journalists on Thursday afternoon, Bhamre was initially at a loss for words. He discovered he was HIV-positive in 2008 and it had been, he said, one long struggle since. Dealing with the stigma had, he said, worn him out. His teenage son was forced to take up work in a factory to make ends meet, he said. “My wife and two sons struggled as I watched helplessly,” he said.

Human rights lawyer Asim Sarode, who represented Bhamre, said: “This case will act as a positive precedent for many others in the State, who face similar struggles.” Bhamre’s case was fought on the basic premise of the rights given by the Constitution, Mr. Sarode stated.

Source: The Hindu

Wednesday, September 4, 2013

Extend legal protetction for impairments not covered under the PwD Act 1995 - mandate of SC

Please refer to earlier post titled "SC directs the Govt. to give suitable jobs to employees with Mental Illness" dated 19 August 2012. Here is the coverage on the issue from The Hindu.


The case of the 1977-batch Indian Administrative Service officer, whose compulsory retirement on grounds of  disability the Supreme Court has overturned, sets a strong precedent on the codification of protections against contingencies that arise during service. A two-judge bench upheld Anil Kumar Mahajan’s appeal against an earlier  decision that sought to curtail his tenure by five years. Interpreting the 1995 law on disabilities, the bench ruled that those who acquire an impairment while in service had to be accommodated in a position appropriate to their current condition. Where such adjustment was not available, the government was obliged to retain them in a supernumerary status, pending the identification of one, until the age of superannuation. The message emanating from the judgment is unambiguous, even if only a fraction of the disabled, estimated at nearly 10 per cent of India’s population, is in formal employment. It is relevant no less to the large numbers rendered severely impaired for life on account of the notoriously high rates of road accidents, not to mention industrial mishaps. The verdict also drives home the necessity, both within the administration and beyond, to recognize disability as a dimension of social diversity. To the extent that this is a relatively new reality, reflected in the workplace and several walks of life, public and private institutions would have to become responsive. It is hard to conceive of a more effective advocacy on disability than policies of accommodation that can potentially counter prevailing prejudice and stereotypes.

As regards recruitment under the Union Public Service Commission, a number of persons with different disabilities have begun to join the ranks in recent times. In fact, the question of identification of suitable placements across different services has come into the spotlight, illustrating the need to fashion a comprehensive approach on the absorption of new appointees. The landmark verdict, if anything, underscores yet again the urgent need for Parliament to enact fresh legislation in this area. This is imperative following India’s ratification, way back in 2007, of the United Nations Convention on the Rights of Persons with Disabilities. It is the way forward on extending legal protection for categories of impairments that are not covered under the current law and give fresh impetus to realise the goals of inclusive education. The newly constituted department of disability affairs in the Ministry of Social Justice and Empowerment should strive towards bringing the law-making process to fruition at the earliest. For, every single day lost to procedural delays affects the life prospects of millions.

Source: The Hindu

Monday, September 2, 2013

Madras HC seeks report on prisoners with mental disabilities


Express News Service - MADURAI  31st August 2013 

Admitting a public interest litigation seeking treatment for mentally affected prisoners, the Madras High Court (Madurai Bench) has sought a report from the Superintendent of Prisons in Tamil Nadu about the conditions of the convicts and trial prisoners suffering from mental disorders.

The Principal Bench comprising of Acting Chief Justice R K Agrawal and Justice N Paul Vasantha Kumar has given two weeks time to the prison authorities to submit the report.

In his petition, N Muthukumar, deputy general secretary of Tamil Puligal, said he was arrested and confined a cell in Block No 1 in the Madurai Central Prison for participating in an agitation on June 13. During his stay in the jail, he noticed that prisoners lodged in Block 2 displayed some abnormalities. On enquiring with long-time inmates, he learnt that Block 2, was dubbed as ‘Maiyam’ (Centre) where prisoners of unsound mind were lodged.

There are 22 prisoners suffering from various psychological disorders and 13 convicts, who are insane, presently in the said block. Every day, prison authorities provide tablets to these inmates but no proper mental health treatment was given citing lack of infrastructure.

Only prisoners who were in advanced stage of mental illness were referred for treatment outside. Sometimes neurologists and psychiatrists visited them in their cells.

Petitioner’s counsel Alagumani contended that the Tamil Nadu Prison Rules, the Prisoner Act 1900 and the Mental Health Act 1987 clearly spell out how such prisoners must be treated. But this was violated grossly by the Madurai Prison authorities. In other prisons too similar conditions prevailed.

Hence he prayed for proper treatment for the mentally ill inmates.


Tuesday, August 27, 2013

Deaf medical student denied Interpretor during clinical training

Dear Colleagues,

The lawsuit deals with the accommodations that needs to be provided to persons with disabilities  to ensure an equalizing environment. An interesting read from the New York Times.

Deaf Student, Denied Interpreter by Medical School, Draws Focus of Advocates

By JOHN ELIGON
Published: August 19, 2013

Speaking with the parents of a sick infant, Michael Argenyi, a medical student, could not understand why the child was hospitalized. During another clinical training session, he missed most of what a patient with a broken jaw was trying to convey about his condition.

His incomprehension, Mr. Argenyi explained, was not because of a deficiency in academic understanding. Rather, he simply could not hear.

Mr. Argenyi, 26, is legally deaf. Despite his repeated requests to use an interpreter during clinical training, administrators at the Creighton University School of Medicine in Omaha, Neb., have refused to allow it. They have contended that Mr. Argenyi, who is able to speak, communicated well enough without one and that patients could be more hesitant to share information when someone else was present. They added that doctors needed to focus on the patient (not a third party) to rely on visual clues to make a proper diagnosis.

Mr. Argenyi took a leave of absence at the end of his second year, in 2011, after suing Creighton for the right to finish his medical training with an interpreter. The case, scheduled to go to trial on Tuesday in Federal District Court in Omaha, is attracting the attention of the federal government and advocates who are concerned that it could deal a setback to continuing efforts to achieve equality for people with disabilities.

“I couldn't understand so much of the communication in the clinic,” Mr. Argenyi wrote in an e-mail. “It was humiliating to present only half of a history because I had missed so much of what was communicated. I was embarrassed every time I would miss medicine names that I knew from classes but couldn't understand when the patient or a colleague spoke them.”

Despite making tremendous strides over the past four decades with the passage of the Rehabilitation Act and the Americans with Disabilities Act, those with disabilities remain underrepresented in higher education and in the work force. In the medical field, people who are deaf or hard of hearing remain less likely to hold high-skilled positions than those without impairments.

Universities tend to provide requested accommodations after admitting a student who they know has a disability, proponents for the deaf say. And most arrangements for the deaf are settled long before any issues reach a courtroom, said Curtis Decker, the executive director of the National Disability Rights Network, a federally financed association of legal services programs.

But, he said of Mr. Argenyi’s lawsuit, “It’s a very important case because, I think, if it’s successful it will send a very powerful message to the university community that the law does cover them and the law is clear about the accommodations that they need to provide.”

Creighton officials maintain that they have provided Mr. Argenyi with the necessary tools for him to succeed in medical school.

“Michael Argenyi is a very bright, capable young man who Creighton believes will make a good doctor,” said Scott Parrish Moore, the lead counsel for Creighton.

After being accepted to Creighton four years ago, Mr. Argenyi asked the university to provide a real-time captioning system for lectures and a cued speech interpreter. (Mr. Argenyi, who does not know sign language, can read lips. An interpreter helps by mouthing words while using hand signals to clarify sounds.) These were the same accommodations that Mr. Argenyi, who had a diagnosis of profound deafness when he was 8 months old, received for much of his schooling, from grade school through undergraduate studies at Seattle University.

Creighton provided Mr. Argenyi with just one of the aides that his audiologist had recommended — an FM system, which amplifies the sounds he hears in cochlear implants. The university also provided note takers for lectures, priority seating and audio podcasts.

Soon after classes began, Mr. Argenyi told school officials that the accommodations were inadequate and that he was missing information. He sued in federal court in Omaha in September 2009, arguing that the university was legally required to pay for and provide necessary aides.

Mr. Argenyi said he hired his own interpreter and transcription service, which cost him more than $100,000 during his two years in medical school. The breaking point, he said, came during his clinical work in his second year when Creighton refused to allow him to use an interpreter, even if he paid for it himself. The university did allow Mr. Argenyi to use interpreters during a couple of clinics while the Justice Department was trying to broker a settlement, but stopped when a deal could not be reached.

Mr. Argenyi is pursuing degrees in public health and social work at Boston University, which is providing his requested transcription services, while the lawsuit is pending.




Monday, August 19, 2013

SC directs the Govt. to give suitable jobs to employees with Mental Illness

Dear Colleagues,

In a path-breaking development, the Supreme Court while quoting Section 47 has set aside the Order of Compulsory retirement of the 1977 batch IAS officer and directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Though, the Supreme Court has done some justice with the case, but it is loo late and too less. The said has been suffering at the hands of whimsical department who not only suffered at the hands of inquiry committee instituted in 1993 that took 11 years to give its finding declaring him insane. The officer was compulsorily retired thereafter.

There are various candidates who, having lived with mental illness and rehabilitated after a regular course of medication are not given any benefit of reservation or of preference in appointment in the civil services or any other service under the government. The draft of new Act though includes mental illness as one of the condition eligible for reservation in jobs under the disability quota however, one never know how long will this process take for the law to take shape and extend benefits to those living with disabilities not included in the existing Act. The act itself is discriminatory towards many other conditions since it is based on a medical model and goes strictly by the medical conditions, hence in effect renders many others excluded though equally or more marginalized and disabled.

Here is the news coverage from Hindustan Times.

Bhadra Sinha, Hindustan Times  New Delhi, August 19, 2013

State administration cannot dispense with ore reduce rank of a government servant if he or she acquires disability including mental illness or retardation during service, the Supreme Court has ruled.

Quoting the provisions of The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a bench of Justice GS Singhvi and Justice SJ Mukopadhyaya held that if a person is found unsuitable for the post he or she holds on account of acquired disability during service, he or she should be moved to another post suitable to his or her state.

The bench further held that under section 47 of the Act if it wasn't possible to adjust such a person against any post, the government authority ought to keep him or her on a supernumerary post until a suitable one is available until the employee attains the age of superannuation.

With these observations the court recently directed the Union Ministry of Department of Personnel and Training (DoPT) to pay consequential benefits to a 1977 batch IAS officer, Anil Kumar Mahajan, who was compulsorily retired from service on October 15 2007 after a disciplinary inquiry declared him insane. The inquiry report came 11 years after it was instituted in 1993 when he worked with the Bihar government.

At the time of inquiry the officer was placed under suspension twice. His representation for a voluntary retirement was turned down by the DoPT on the ground he hadn't completed the minimum service of 20 years. Later, however, the ministry compulsorily retired him.

Mahajan later challenged the findings of the disciplinary proceedings before the Central Administrative Tribunal, which turned down his plea.

However, on his appeal the SC set aside the order of compulsory retirement and said: "The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on October 15, 2007. It is not the case of the respondents (DoPT) that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977."

Observing "some problem was going on between the appellant and authorities of the state (Bihar)," the court said: "In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of  appellant or to compulsory retire him from service."

The court further said: "The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer."

Since in normal course Mahajan would have retired from service on July 31, 2012, the SC directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.




Monday, August 12, 2013

Punjab & Haryana HC reinstates employee with Cerebral Palsy

Dear Colleagues,

Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).

Brief Facts

Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test,  general  knowledge  and  the proficiency  test  in  operation  of computers   and also the computer  practical  test  and personal interview.  The competent medical authority had also declared  the  petitioner  as  a case  of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out  of  the  71  advertised posts,  only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.

However, within two months of joining the District & Sessions Judge,  Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that  his services are no longer  required.   The stand taken by the respondent was that  the  services  of  the petitioner  have  been terminated as per the terms of his appointment  letter,  according to which the petitioner  was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the  appointment  letter,  the  services of the petitioner  could  be terminated at any time without assigning any reason and without prior notice.  As the petitioner  was unable to perform any kind of  office work with his own hands and of  his own,  he being suffering from cerebral  palsy,  he could not  be continued in service.  As  per  the respondents,  petitioner  is unable  to  perform  any  work  on  the computer and, therefore, faced with this situation, the services of the petitioner  have  been dispensed  with  as  per  the  terms  of  his appointment  without  casting any stigma on him. The respondent also submitted that  the officials in the office of  District  and Sessions Judge have been helping the petitioner at  every step and at  every moment still he was unable to do any office work and, thus, respondent was left  with no option but  to take a decision to dispense with the services of the petitioner in the interest of office administration.

The Judgement

While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social  legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity.  Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which  has  been  identified  and  reserved  for  a  particular category, the employee cannot be terminated and efforts be made to provide a congenial  atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner. 

The court concluded that the "petitioner may be slow in handling the computer but  could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer.  The detail  of  the Sections  where the work  is  done on computers,  has been given in the replication,  which indicates that there are  plenty  of  places  where  the  petitioner  can  easily  be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and  competence.  With  same  support, encouragement  and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object  of  the Disability Act  would be given effect to in true spirit." 

Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha  VERSUS State of Haryana and others)    

Learnings from the judgement:

This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual.  Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:

(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace! 

(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of  performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.

The acknowledgements

Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.  

Media Coverage by the Tribune


Saurabh Malik
Tribune News Service

Chandigarh, August 6
In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.

The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.

Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.

During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.

In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.

Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….

Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.