Right to medical aid is State's responsibility - HC directs Govt. to cut down bureaucratic chain & fund the treatment of children with genetic disorder

Court comes to the aid of two dying patients

Akanksha Jain, New Delhi, March 21, 2014

“We need to cut down the bureaucratic chain so that the money reaches needy patients,” the High Court told the Delhi Government on Thursday.

A Bench of Justice Manmohan made this remark while dealing with pleas of two poor patients who suffer from genetic disorders and have sought medical aid from the State.

One of them is 36-year-old Amit Ahuja, a bed-ridden haemophiliac, who lost his left leg and continues to bleed in a ward at the Lok Nayak Jaya Prakash Narayan Hospital (LNJP) with multiple bedsores and a pseudo tumour in the right leg.

Criticizing the government and its hospitals for not creating dedicated bank accounts where the public can donate money for the treatment of poor patients, the Bench asked: “Has anyone heard of any account of the All India Institute of Medical Sciences [AIIMS] or LNJP for anyone to deposit money by way of charity? Why is it not in place? Why is LNJP shy of accepting public money for poor patients?”

When told by the Health Secretary that the Government has one such account, the Bench said: “We need to cut down the bureaucratic chain so that money reaches the needy. The account should be subject to audit. The head of any government hospital should not need to request the State for treating the poor.”

Hearing the plea of Mr. Ahuja, the court said: “No person can bleed to death.”

Meanwhile, the Bench transferred Rs.7.75 lakh collected by High Court lawyers into a bank account of AIIMS for immediate treatment of Mohammad Ahmed, the son of rickshawpuller Mohammad Sirajuddin who broke down outside court while talking to The Hindu .

“Even the Prime Minister’s Office did not come to aid when I lost three children to the same disorder,” he said.

“I am faced with grave crisis today. One person is bleeding, his wounds are not healing. The other patient needs enzyme therapy. His three siblings have died of the same disorder. I have to look for a legal answer to this. Every person has a right to medical aid,” Justice Manmohan said.

During the hearing, counsel for Mr. Ahuja advocate Gurmit Singh Hans told the Bench that he is being treated for the disorder since he was nine-months-old, but now when all his family assets stand exhausted the hospital has denied him treatment, which is worsening his condition.

The LNJP Hospital Department Head told the Bench that the only drug available for haemophilia costs more than Rs.50 lakh and is to be given daily to the patient.

“When medical science has made some advances, we have to give it to the common man. Otherwise what is the idea of having such lofty ideas in the Constitution? It cannot be only for the high and mighty,” the Bench said.


“We need to cut down bureaucratic chain so the money reaches needy patients”

Source: The Hindu

Welfare Trust Fund for Disabled swells to 223 crore; remains unutilized

The documents submitted in Supreme Court show that the trust has so far has utilised only Rs 18.59 crore towards extending benefits to physically disabled.

Fund for disabled set up 10 years ago lies unused

Written by Utkarsh Anand | New Delhi | March 3, 2014 11:49 pm

A fund created on the order of the Supreme Court for welfare of the disabled has swollen to Rs 223 crore, but not even 10 per cent of it has been utilised in almost a decade now.

The only plan in place, a scholarship scheme for disabled students, is yet to be introduced in any of the union territories or Northeastern states.

In 2004, the court had ordered that the Comptroller and Auditor General set up a trust with the money recovered by it from banks as illegal collection from borrowers. The money, the court said, would be used for the benefit of disabled. The trust was to be managed by the CAG as its chairman, with the finance secretary and law secretary as ex-officio members.

The RBI recently wrote to the under secretary, Ministry of Finance, that Rs 173 crore in all had been deposited in the fund. While 46 commercial banks had deposited Rs 154 crore towards excess interest charged to borrowers, Rs 19.5 crore had been deposited as part of the additional Rs 50 lakh each the banks gave in accordance with the Supreme Court order.

This money, Additional Solicitor General Rakesh Khanna informed a Supreme Court bench led by Justice K S Radhakrishnan recently, has grown to Rs 223 crore along with interest.

However, as the documents submitted in court showed, the trust has so far utilised a meagre Rs 18.59 crore towards according benefits to the physically challenged. Only money allotted for a scholarship scheme has been entirely used, benefiting 1,500 students per year. The number of scholarships has now been raised to 2,000 students per year.

Documents also revealed that no union territory or Northeastern state barring Assam had benefited from the scholarship scheme, which has more male recipients than female.

At a hearing earlier, ASG Khanna had told the court about the recovery of the amount so far and sought some additional orders on issues like merger of banks, or closure of banking operations by some entities, mode of recovery from state finance corporations etc.

The bench, which was hearing a petition filed by Ravi Shankar Bhushan, a disabled person working in an NGO, said it would pass appropriate orders with assistance from the petitioner’s counsel Colin Gonsalves.

Source: Indian Express

US Supreme Court questions Death Penalty based on rigid IQ score threshold for determining intellectual disability

US Supreme Court scrutinizes Florida’s death penalty law

WASHINGTON — Florida’s death penalty came under fire from a key Supreme Court justice Monday, as a divided court confronted the role of low IQ scores in exempting convicted murderers from execution.

Justice Anthony Kennedy, the court’s frequent swing vote, joined more liberal justices in questioning Florida’s rigid IQ score threshold for determining intellectual disability. Kennedy’s positioning hinted at the possibility that the court, probably on a close vote, might strike down the strict IQ rule used by Florida, Idaho, Kentucky and several other death-penalty states.

More broadly, Kennedy raised doubts about Florida’s administration of the death penalty and the long delays that have ensued. His implicit criticism went beyond Monday’s case, and hinted at other capital punishment debates to come.

“The last 10 people Florida has executed have spent an average of 24.9 years on death row,” Kennedy reminded Florida Solicitor General Allen Winsor. “Do you think that is consistent with the purposes of the death penalty, and is it consistent with sound administration of the justice system?”

Pressed several times, Winsor noted that Florida lawmakers had addressed “a number of issues” Kennedy raised with passage of legislation last year. Many prison inmates have since challenged the state’s Timely Justice Act, which is now before the Florida Supreme Court.

Freddie Lee Hall, the 68-year-old convicted murderer whose case was before the U.S. Supreme Court on Monday, has been on the state’s death row since 1978. He and an accomplice were convicted of murdering a 21-year-old pregnant woman and a Hernando County deputy sheriff.

“He is the one who seized the young woman, who pushed her into a car, who drove the car with his accomplice following in another car and who killed her, and . . . killed a policeman, too, later,” Justice Antonin Scalia recounted, suggesting that Hall’s actions showed some level of mental competence.

Hall didn’t raise the mental retardation issue for the first 10 years of his imprisonment. After he did, Kennedy noted pointedly, five years passed before the state conducted the hearing designed to assess his intellectual capacity.

The Supreme Court has previously decided, in a 2002 case called Atkins v. Virginia, that the execution of those variously called mentally retarded or intellectually disabled violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court left the definition up to individual states.

Florida imposes a three-part test, which starts with a rigid requirement that the inmate score 70 or below on the IQ test. If the inmate scores below the cutoff number, the state also will assess for “deficits in adaptive behavior” and an onset before the age of 18.

“Florida has an interest in ensuring that the people who evade execution because of mental retardation are, in fact, mentally retarded,” Winsor said.

Hall and his allies counter that Florida errs by not taking into account the standard 5-point margin of error, which means someone who scores a 75 might actually have a testable IQ of 70.

“If a state conditions the opportunity to demonstrate mental retardation on obtained IQ test scores, it cannot ignore the measurement error that is inherent in those scores, that is a statistical feature of the test instrument itself,” Hall’s attorney, former Solicitor General Seth Waxman, told the court.

Kennedy joined Justices Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and, in particular, Elena Kagan in raising questions about Florida’s rigid IQ testing cutoff.

“Your rule prevents us getting a better understanding of whether that IQ score is accurate or not,” Kennedy told Winsor.

Kagan added that “we know from the way these standard margins of error work” that an inmate who scores a 71 might actually “have an IQ of 69.” Hall has registered IQ scores from the low 70s to as high as 80.

Scalia was most vociferous in his apparent support for Florida’s rigid rule, arguing that courts should defer to a state’s legislative judgment rather than look to evolving standards set by groups such as the American Psychological Association.

“This APA is the same organization that once said homosexuality was a mental disability and now says it’s perfectly normal,” Scalia said. “They change their minds.”

Cornell Law School Professor John H. Blume, a death penalty expert, said in an email interview that only “around 10” death row inmates with borderline IQ scores stand to benefit immediately if the Supreme Court sides with Hall in the case heard Monday.

Justice Clarence Thomas, as is his habit, was the only one of the nine justices not to speak or ask questions during the hourlong argument. A decision is expected by the end of June.

Source: Central Daily

Disability angle in Nursery admission norms - HC issues notice to centre

Nursery norms: Centre to clarify on disability quota
TNN | Feb 26, 2014, 02.19 AM IST

NEW DELHI: The High Court on Tuesday asked the Centre to clarify if Delhi's schools still have the discretion to provide admissions in nursery classes to disabled kids, despite the Lieutenant Governor's guidelines clubbing them with children of economically weaker groups (EWS).

A bench of justices S Ravindra Bhat and R V Easwar gave a day's time to the Centre to explain after the latter told the court it is up to the Delhi government to make guidelines for providing any benefit to disabled kids since the city government has enough "elbow room" despite the LG's order.

But HC was not satisfied and questioned the Centre's stand saying "no elbow room is visible" under the guidelines or the Persons with Disabilities Act. It added that if no proper guidelines are framed for providing relief to disabled students, the "discretionary approach" of schools will get an "escape route".

"If you (Centre and Delhi governments) don't come out with guidelines, it could lead to an escape route to the discretionary approach of schools," the bench said and kept the matter for Wednesday after the counsel, appearing for the Centre, said its officials would be present in the court to explain the government's stand.

The bench was hearing a PIL, by Pramod Arora, father of a child with special needs, challenging the LG's nursery admission guidelines to the extent it clubs disabled children with kids from EWS group. His petition also seeks 3% reservation for disabled kids in the nursery class.

During the day's proceedings, the Centre said it is for Delhi government to evolve guidelines on the issue but the court pointed out only when the Centre asks the state government to do so will it acts.

It also asked the Centre to "see what is possible under the Act", whether 3% reservation is possible and if yes, how to implement the same.

Meanwhile a group of parents on Tuesday also challenged the points for interstate transfer in the new nursery admission guidelines. A bench of acting Chief Justice and Justice Siddharth Mridul sought a reply from the state government and posted the case for Thursday.

Source: Times of India

Defence Personnel get a raw deal, disabled are worst hit

Please refer to my earlier post dated 11 Feb 2014 titled: Department of Ex-Servicemen Welfare working against the interest of Disabled Soldiers. 

Defence Personnel  or Ex-Servicemen are at a great disadvantage in respect of pay, pension and medical benefits compared with civilian government employees. It is none other than their own department called Department of Ex-servicemen Welfare who is working against their interest and resorting to appeals against all orders of Armed Forces Tribunal that went in favour of the soldiers. 

FRONTLINE Article

Over the past five years, ex-servicemen have been agitating against the injustice meted out to them by the Central government. They have lost faith in the Department of Ex-Servicemen Welfare (DESW), created specifically to take care of their welfare. Ex-servicemen have won 90 per cent of the cases filed in the Armed Forces Tribunals and the Supreme Court against the government, but the government has appealed in all the cases through the DESW.

The veterans have approached the Prime Minister and the Defence Minister to seek redress in numerous cases where they felt injustice had been done to them but to no avail. The Supreme Court’s judgments in their favour have either not been implemented or not been implemented in letter and spirit in cases pertaining to disability pensions, payment of arrears with retrospective effect from January 1, 2006, rank pay, and hospital charges on authorised Ex-servicemen Contributory Health Scheme (ECHS) rates for medical treatment abroad.

The government files en masse appeals against retired defence personnel whenever any case relating to pension benefits is decided in their favour by any court of law or the Armed Forces Tribunal. Facing the brunt of the government’s apathy is the category of disabled and war-disabled soldiers. Most of the special leave petitions and appeals filed by the Ministry of Defence in the Supreme Court are against the grant of disability or war injury benefits to disabled and war-disabled soldiers. As a result, the veterans are forced into expensive litigation.

Over 3,000 cases decided in favour of defence personnel by the Armed Forces Tribunal have not been implemented; the Defence Ministry has contested all these judgments in the Supreme Court. Imagine the plight of a widow of a sepoy living in a far-flung rural area. How is she going to find the resources to fight her case in the Supreme Court? The tribunals were created for delivering speedy justice to defence personnel at minimum cost. But the Ministry’s decision to appeal against the tribunal’s judgments has not only delayed justice but also made it near impossible for the defence personnel to fight their cases. The Armed Forces Tribunals do not have contempt powers to get their judgments implemented whereas Central Administrative Tribunals (CATs) are vested with such powers.

This is the biggest cause of heart burning in the military community today. Military personnel with non-service-related disabilities discharged with less than 10 years of service remaining are not entitled to any form of pension, whereas the employment of civilian employees who “acquires a disability during his service” is protected under Section 47 of the Persons with Disabilities Act, 1995.

As per the Sixth Central Pay Commission recommendations, all government servants are allowed three assured career progressions. Civilians who retire at the age of 60 are allowed promotions at 10, 20 and 30 years of service, and soldiers at eight, 16 and 24 years. However, since jawans are forced to retire early, largely between 15 and 19 years of service, to keep up the young profile of the forces, they miss out on at least one assured career progression, unlike their civil counterparts, who serve their full term until superannuation. It has been proposed to the government that the third career progression should be given to jawans automatically; they should be promoted to the rank of naib subedar at the time of retirement. Surprisingly, this demand has not been accepted.

Widow’s pension

Widow’s pension is one area of concern to the defence community that has received little attention from the government. A sepoy’s widow pension has remained a meagre Rs.3,500 a month while other sections of government employees have received periodic increases in such pension. The minimum family pension in respect of defence widows must be enhanced from Rs.3,500 to Rs.10,000 a month.

It is common knowledge that soldiers retire ahead of their time. What is not known, however, is that their life expectancy is shorter than that of civilians. The Institute of Applied Research in Manpower Analysis (IARM), which studied the lifespan of civilian employees at the behest of the Fifth Pay Commission, arrived at 77 years as the average life expectancy of a civilian government servant. The Railways conducted a similar exercise for their personnel and assessed that they achieved an average lifespan of 78 years. No such study was conducted for defence personnel since it was generally believed that soldiers lived longer than civilians. However, Major General (retired) Surjit Singh, AVSM (Athi Vishisht Seva Medal), VSM (Vishisht Seva Medal), who headed the Army Cell of the Fifth Pay Commission, carried out a detailed study in 2005 along with other experts. The study revealed that the average lifespan of defence officers was 72.5 years; that of junior commissioned officers (JCOs) 67 years; and that of other ranks was between 59.6 and 64 years.

These findings were forwarded to the Chief of the Army Staff General J.J. Singh on July 7, 2005, by Lieutenant General (retd) M.M. Lakhera, PVSM (Param Vishisht Seva Medal), AVSM, VSM, who was Lieutenant Governor of Puducherry. The findings were reported by all national newspapers and a question was asked in Parliament on the subject. Pranab Mukherjee, who was the Defence Minister then, maintained that the issue would be examined in detail. Nothing was heard about it after that.

Stress and strain of early retirement is one of the major reasons for the lower life expectancy among the defence personnel. Their legitimate demand for an assured second career until the age of 60 through an Act of Parliament has not yet been accepted.

While the pensions of all ranks were enhanced with effect from September 24, 2012, to redress the anomaly of the Sixth Pay Commission, the request to enhance the pension of JCOs proportionately was not granted. Majors with 13 years and more of service who retired before 2004 have been denied the benefit of the rank of lieutenant colonel (that is, the benefit of pay band-4 in the revised scale of the Sixth Pay Commission).

The government’s policy to grant lieutenant colonel rank on completion of 13 years of service was made applicable with effect from 2004. It would have been only just to grant all those who retired before 2004 in the rank of major with 13 years of commissioned service (this number being finite) the benefit of pension on the scale of lieutenant colonel. The strong plea in this regard has not been accepted.

Also, the non-functional upgrade (NFU) granted to civilian employees has been denied to defence personnel, thereby putting them at a disadvantage.

One Rank One Pension

One of the major demands of veterans is same pension for same rank and same length of service, that is, same rank + same length of service = same pension, irrespective of the date of retirement. They want a legislative guarantee to this. Although all major political parties have agreed to this in principle and frequently incorporate it in their election manifestos, this 40-year-old demand has not been implemented. The bureaucratic excuses in the form of administrative, legal and financial hurdles in implementing the demand were heard in detail in 2011 by the Rajya Sabha Petition Committee set up to look into all aspects of the demand and rejected them in the strongest terms. Prime Minister Indira Gandhi had agreed to this provision in principle, but her untimely death scuttled the proposal. Successive Standing Committees on Defence and the Rajya Sabha Petition Committee have recommended this but to no avail.

Before 2006, the difference in the pensions of Major General and Lieutenant General was only Rs.1,400. Subsequently, it became Rs.700. With the extension of higher administrative grade (HAG) and HAG+ to the rank of Lieutenant General and above, the difference in pension is more than Rs.8,000 even after the increase with effect from September 24, 2012. The government has overlooked the Sixth Pay Commission recommendations, which suggested that all government employees with a basic pay of Rs. 20,000 and above be clubbed under the same pay band. Major Generals retire with a basic pay of Rs.22,400 and above while Lieutenant Generals retire with a basic pay of Rs.23,500 and above. Non-inclusion of major generals in HAG has caused an anomaly.

On losing the case, the Defence Ministry filed a review petition in the Supreme Court, denying enhanced arrears to army pensioners as ordered by the Delhi High Court with retrospective effect from January 1, 2006, instead of September 24, 2012.

Civilian employees are provided health care under the Central Government Health Scheme (CGHS) while ex-servicemen are covered under the ECHS. The provision of budget for the CGHS is calculated (for 2013-14) at the rate Rs.10,700 for every beneficiary while for the ECHS, it has been budgeted at Rs.3,150 a beneficiary. As a result, super-speciality hospitals do not offer themselves for ECHS empanelment. Over 80 per cent of the health care units have withdrawn from empanelment in view of delayed payment of bills and inadequate rates for various medical procedures. This has resulted in unsatisfactory or poor medical care for ex-servicemen. Sophisticated procedures have not been included in the ECHS. The veterans’ request for inclusion of the latest medical procedures on the ECHS benefits list has not been accepted yet. Ex-servicemen had requested that the budget be enhanced and not be less than the CGHS rates.

Here is an example to illustrate the poor nature of health care benefits provided by the government to ex-servicemen. Non-availability of funds with the ECHS and, as a consequence, non-payment of hospital dues made an empanelled hospital in Gurgaon in the National Capital Region to stop accepting patients for cashless medical treatment. Ex-Subedar Prakash Chandra Tomar from Meerut was brought to the hospital in a serious condition on December 8, 2013, which as per the ECHS scheme is permitted. The family was asked by the hospital authorities to deposit the money for the treatment or transfer the patient to some other hospital. Since the condition of the patient was serious, the family raised a loan and deposited Rs.11 lakh for 20 days of hospitalisation and treatment.

When the family was in no position to arrange further funds, Tomar’s son, Raj Kumar Tomar, approached the Indian Ex-Servicemen’s Movement (IESM) and the case was taken up with the Managing Director of the ECHS, who promised to get cashless treatment. But he did not succeed. The family deposited another Rs.2 lakh in the hospital. On January 1, Subedar Prakash died. The hospital did not accede to the request of the ECHS to release the body and insisted that the family clear the hospital bills.

In November 2008, the government had announced that in future there would be a separate pay commission for the defence forces. The defence fraternity feels betrayed as the government has not constituted a separate pay commission, and, as in the case of the previous commissions, there is no representation for defence forces in the newly constituted Seventh Pay Commission. Some 39 anomalies in defence pensions are yet to be resolved and with no defence representation in the new pay commission, more anomalies are likely to appear thereby increasing the magnitude of injustice already done to defence pensioners.

Denial of voting rights

It is surprising that serving defence personnel are denied the right to get themselves registered as voters at the place of posting. In spite of a clear judgment by the Supreme Court in 1971, this basic right has not been extended to soldiers. The option of postal ballot and proxy voting available to serving soldiers has not proved effective. There is no restriction imposed in the Representation of the People Act, 1950, to deny this right to defence personnel. There is an urgent need to restore this right immediately to allow serving soldiers to vote at their place of posting in the coming Lok Sabha elections.

The prevailing security environment calls for strong measures to upgrade the country’s defence preparedness in terms of manpower, equipment and weapon systems. Equally important are measures to keep the soldier’s morale high.

Source: Frontline

SC directs Transport Allowance for Deaf Govt.Employees at par with other disabilities [Judgement Included]

Court: Supreme Court of India

Bench: Justice K.S. Radhakrishnan and  Justice A.K. Sikri

Case No. & Title: WP(C) No. 107/2011 Titled as Deaf Employees Welfare Association and Another v/s Union of India and Others

Date of Jugement: 12 Dec 2013 

This petition was filed seeking a Writ of Mandamus directing the Central and state governments to grant equal transport allowance to its government employees with  hearing impairment as what was being given to blind and other disabled government employees.  The allowance given to the hearing impaired employees was significantly lower than the allowance granted to other employees with disabilities.

After a prolonged battle at the Hon'ble Supreme Court in case WP(C) 107/2011, the deaf govt employees have finally being granted an equal treatment as far as the Transport allowance is concerned.

The Supreme Court allowed the petition and directed the Respondents to grant transport allowance to speech and hearing impaired persons also on par with blind and orthopaedically disabled government employees. 

The Hon'ble Court held that when a person is having any of the disabilities mentioned in Section 2(i) of the Disabilities Act 1995 and is so certified by the Medical Doctor, he is entitled to the benefits of all the Schemes and benefits provided by the Government and there can be no further discrimination among the persons with varied or different types of disabilities since no such discrimination has not been envisaged under the Disabilities Act.  The Court was also of the view that the travel undertaken by the deaf and hearing impaired employees is equally arduous and burdensome as compared to persons having other disabilities.

The court held that “there cannot be further discrimination between a person with disability of ‘blindness’ and a person with disability of ‘hearing impairment’. Such discrimination has not been envisaged under the Disabilities Act.” It held that equality of law and equal protection of law afforded to all persons with disabilities while participating in government functions. The court held that the dignity of persons with hearing impairments must be protected by the state. Even the assumption that a hearing or speech impaired person is suffering less than a blind person is, in effect, marginalizing them; and as such, the same benefits must be given to them, as are awarded to blind citizens. Any move made by the state to further this objective is in consonance with the principles enshrined in Articles 14. This case held that deaf and mute people should also be given transportation allowances on par with blind and orthopedically handicapped employees of the government.

Judgement

Click here to access the accessible version of  judgement dated 12 Dec 2013 in WP(C) No. 107/2011 Titled as Deaf Employees Welfare Association and Another v/s Union of India and Others on double transport allowance for the deaf.

 

New OM Issued by Min. of Finance

In response to the above judgement, now Min. of Finance has issued an OM No.21(2)12011-E.II(B) dated 19.02.2014 on the subject, the contents whereof are as below.The contents seriously disregard the language used to refer to persons with hearing impairment or deaf persons as "dumb".

No.21(2)12011-E.II(B)

Government of India

Ministry of Finance

Department of Expenditure

North Block, New Delhi,

Dated: 19th February, 2014

OFFICE MEMORANDUM

Subject- Grant of Transport Allowance to Central Government Employees – Extension of benefit of Transport Allowance at double the Normal Rates to Deaf and Dumb Employees – Implementation of the Order of the Apex Court – regarding.

The undersigned is directed to refer to Order dated 12th December, 2013 of the Hon’ble Supreme Court of India in Writ Petition (Civil) No. 107/2011 of Deaf Employees Welfare Association and Another v/s Union of India and Others, and to say that in compliance of the said judgement of the Apex Court, it has been decided to extend the benefit of Transport Allowance, as admissible to blinds and orthopaedically handicapped employees in terms of para 2 (i) of Ministry of Finance, Department of Expenditure O.M. No.21(2)/2008-E.II(B) dated 29th August, 2008, to deaf and dumb employees of the Central Government also, with immediate effect, subject to the condition that the recommendation of the Head of ENT Department of a Government Civil Hospital is received by the Head of Department and fulfilment of other conditions mentioned in Ministry of Finance, Department of Expenditure O.M.No, 19029/1/78-E IV(B) dated 31st August, 1978 read with O.M. dated 29.08.2008.

2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, this Order issues in consultation with the Comptroller and Auditor General of India.

sd/-

(Subhash Chand)

Deputy Secretary to the Government of India

Here is the Image of the above Memorandum

Failure to implement Disabilities Act makes Madras High Court initiates Contempt Proceedings against Chief Secretary

Hi,

Here is a news coming from Madras High Court. Though the notices of the contempt have been delayed at the request of Advocate General but it indicates the seriousness with which the Court is looking at the continued defiance.

Times of India and The Hindu have covered the stories as below. More soon....

Times of India

Madras high court initiates contempt proceedings against Tamil Nadu chief secretary Sheela Balakrishnan

A Subramani,TNN | Feb 11, 2014, 01.06 PM IST

CHENNAI: Lambasting top bureaucrats of Tamil Nadu for their failure to furnish data relating to backlog of vacancies for disabled persons in various government departments, the Madras high court has initiated contempt of court proceedings against chief secretary Sheela Balakrishnan and two other officers.

According to the statute, there shall be reservation of 3% of all available vacancies for disabled persons. While the court had passed necessary orders nearly two years ago, the issue gained importance after last month's Supreme Court ruling directing all state governments to set apart 3% of all available vacancies for disabled persons.

Justice S Manikumar, pointing out that at least 23 government departments have not furnished required details of backlog vacancies despite several adjournments and directives, said: "Though repeatedly, this court has issued orders to identify the posts in 'A', 'B', 'C' and 'D' categories and consequently, to fill up the posts as expeditiously as possible, the process is on and on and from the materials produced before this court, out of 34 secretarial heads, 140 Heads of Departments, 102 government undertakings, including universities and 54 companies owned and controlled by the government, only 70 HoDs have furnished the details of 'A', 'B', 'C' and 'D' categories."

"So far, 50 out of 102 government undertakings and boards, etc., have furnished the details. No clear details have been furnished by about the 54 companies owned and controlled by the government," Justice Manikumar said.

He then said: "This court is constrained to issue contempt notices to Sheela Balakrishnan, chief secretary of Tamil Nadu and head of Monitoring Committee for Differently Abled, P Sivasankaran, secretary of Welfare of Differently Abled department and Manivasan, commissioner for the differently abled, to explain as to why further course of action should not be taken under the Contempt of Courts Act. Registry is directed to issue necessary statutory notices to the above said persons."

However, after advocate-general A L Somayaji requested the court to postpone the issuance of the statutory notice, which would require the personal appearance of the officers concerned, the judge said the officers could make necessary applications if they complied with directions of the high court and the Supreme Court.

The Hindu

HC pulls up State for violations in appointing differently-abled persons

CHENNAI, February 12, 2014

K.T. SANGAMESWARAN

Observing that the differently-abled have been taken for a ride by the State government, the Madras High Court has ordered issue of contempt notices to three top officials, including the Chief Secretary, for violating the orders of the High Court and the Supreme Court in the matter of filling up vacancies in ‘A’, ‘B’, ‘C’ and ‘D’ categories by differently-abled persons.

Besides the Chief Secretary, Sheela Balakrishnan, notices were ordered to be issued against the Secretary, Welfare of Differently-Abled Persons Department, P.Sivasankaran and the State Commissioner for the Differently-Abled, Manivasan.

Following the Advocate-General, A.L.Somayaji’s request to postpone the issue of the notice, Justice S.Manikumar ordered that if the officials concerned comply with the Court directions in letter and spirit, they could file necessary applications.

Passing an interim order on three writ petitions filed in 2004, the Judge said the Court had, in April 2012, directed the authorities to identify ‘A’ and ‘B’ posts in government departments, boards, public sector undertakings, corporations, companies owned by the government and educational institutions. Subsequently, the government had issued a G.O. on January 29 last year directing the establishments to identify the posts and to implement the three per cent reservation for the differently-abled.

Mr. Justice Manikumar said no details had been furnished, as to whether the Secretaries had implemented the instructions given.

Though repeatedly the Court issued orders to identify the posts under the four categories and fill up the posts as expeditiously as possible, the process was getting delayed.

Only 50 out of the 102 government undertakings, boards, etc., had furnished the details. No clear details had been furnished about 54 government-owned companies. He said the authorities were seeking adjournments time and again.

During the last hearing, the State Commissioner for the Differently-Abled filed an affidavit taking a different stand altogether and submitted that the whole process should be reworked considering the Tamil Nadu Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules.

Department of Ex-Servicemen Welfare working against interests of Disabled Soldiers

This is how our bureaucracy treats the disabled! If any ex-serviceman and disabled soldier moves a case for disability  pension benefits against Ministry of Defence, he will be challenged all the way up to Supreme Court, ruled the Department of Ex-Servicemen Welfare (DESW) - a wing of Min. of Defence on 02 Jan 14.

In other words, a disabled soldier or war veteran either accepts what is doled out as charity or be ready to fight a losing battle even after winning the case in Armed Forces Tribunal in next two superior courts. Reason- Babus feel that reference to legal opinion is time consuming and involves lot of paper work hence the department will appeal automatically against each case won by the soldiers- first in High Court and then in SC. That means babus will pay hefty fee (from tax payers' money) to the standing counsels but not release legal dues ordered by its own Tribunal to the deserving soldiers...!  It is not a challenging guess as to how many disabled soldiers or veterans can afford to keep fighting from the Armed Forces Tribunal to the High Court to the Supreme Court!

An elected representative in parliament went on to write that the impugned order smacked of callousness and high handedness on the part of the Government and that the order would aggravate the misery of those who have lost their limbs or eyesight or sustained any other grievous harm in the service of the nation.

Its only after the hue and cry for over a month against MoD's heartless and desperate effort to "tire the disabled out" in the autumn of their lives, the defence minister has personally intervened.

Thank you Mr. Antony for intervening and withdrawing this most unreasonable rule thrown at the face of those who gave the nation their prime time of life, though after more than a month!

See Related Links:

Disabled Ex-servicemen get breather from Antony
http://epaper.mailtoday.in/showtext.aspx?boxid=34956953&parentid=90673&issuedate=1122014

Army Chief to Protest Defence Ministry treatment of Ex-servicemen
http://www.business-standard.com/article/economy-policy/army-chief-to-protest-defence-ministry-treatment-of-ex-servicemen-114011500026_1.html  

Resolve issue of pension of disabled soldiers: Smriti to govt.
http://archive.indianexpress.com/news/resolve-issue-of-pension-of-disabled-soldiers-smriti-to-govt/1156349/0

Voluntarily retired soldiers entitled to disability pension

http://www.thehindu.com/todays-paper/tp-national/voluntarily-retired-soldier-entitled-to-disability-pension/article3976340.ece  

Now, all disabled soldiers to get disability pension
http://articles.timesofindia.indiatimes.com/2012-08-04/india/33034927_1_disabled-soldiers-disability-pension-lt-gen-ns-brar

Law on disabilities in service- Supreme Court holds the hand of the disabled soldier yet again in a landmark judgement

Loss in earning capacity and not degree of disability is considered in deciding compensation: Madras HC

Madras High Court has while hearing an appeal against a poor disability compensation in a motor accident claim case recently held that while computing compensation in motor accident cases, the loss of earning capacity of the victim should outweigh the extent of disability.

Enhancing the compensation by 2 lakh to the injured driver, Justice R Mahadevan said,  “In cases of compensation, it is not the disability, which could be partial or total, alone that matters. It is the loss in earning capacity as a result of the accident that is to be considered.”
 
In the instant case R Murali, driver of a concrete mixing vehicle, met with an accident in January 2009 and suffered injuries in hip, right leg and ankle. He claimed to have suffered 100% loss in his earning capacity and sought appropriate compensation along with 12% interest.  However, as the disability certificate issued by a doctor pegged the percentage of his disability at 60%, the Deputy Commissioner of Labour awarded only Rs 3.12 lakh as compensation, by fixing his monthly income at Rs 4,000.

The driver, aggrieved by the poor compensation package, approached the high court.  Opposing enhancement of compensation, counsel for the insurance company said Murali could walk and his disability was only 60%. Even though he is incapable of driving, he can go for some other job, the insurance firm argued and sought dismissal of the appeal.

Justice Mahadevan, disagreeing with the findings of the Deputy Commissioner of Labour as well as the submissions of the insurance company’s counsel, said they had failed to discuss the applicability of “total disablement”.

The judge while distinguishing “disability” in medical parlance and “disability” vis-a-vis earning capacity, said, “Considering the injury on the hip, right leg and ankle, Murali can no longer drive a vehicle as he cannot exercise absolute control over it.”

Source: Times of India

Physically Challenged Versus Logically Challenged

Dear Colleagues,

There is an inherent bias in the executive when it comes to giving equal opportunities to those living with disabilities in employment despite the tall claims on paper by the Government and harshest judgements from the Courts criticizing the executive and the government. Now whether it is born out of age old mis-beliefs, myths and resultant negative attitudes towards the disabled or an utter lack of awareness about the possibilities and potential of those living with disabilities - the result is insurmountable barriers for disabled people on every step of their lives.

A committee of High Court Judges decides that those with vision impairments and those with hearing and speech impairment can not function as Judges (Blind/deaf can't be judges, say govt and HC; PIL questions it), the Babus decide what a person with disabilities is capable of, without even knowing a, b, c of disability! And these decisions are taken in solo without involving those with disabilities or their organisations. 

We recently saw certain candidates with disabilities who passed the UPSC's Civil Services Examination way back in 2007 -08 continue to await allocation of posts! The principles of natural justice particularly in a democratic set up as ours, demand that an opportunity of being heard be given to those affected by the proposed action. This is amazing way of functioning displayed by the Indian bureaucracy where the bureaucrats and not the law decides whom they want to allow in their gang!

Section 32 and the List of Identified Jobs

The List of Identified Jobs for persons with disabilities which had been prepared by the Babus with some experts from field also on the panel has done more harm than good for persons with disabilities of this country.  The list has been used to deserving people out by State governments from several key posts. The successive committees of babus have not allowed the stakeholders to even know what was added or removed in the successive list of jobs published through gazettes. Each time a list of published, the earlier was removed from the website, without even explaining what new post(s) have been added or deleted from the list and the basis for the same! And this business of identified jobs has been in business since 1989 even before the disabilities Act came in to force.

The list doesn't seem to have applicability in all the states and union territories since so many states (read babus) have published their own selective lists of posts (read... unimportant posts) jobs, keeping the posts to the minimum that could be held by  persons with disabilities. Certain states and Ministries have been on an exemption seeking spree under the proviso of Section 33 of the Disabilities Act. For instance the post of Judge has been identified in the Central List whereas states like West Bengal, Kerala, Tamil Nadu and Uttar Pradesh seems to have taken regressive steps by obtaining exemptions of judicial posts from the purview of section 33 (reservation in favour of persons with disabilities particularly against the candidates with visual and hearing and speech disabilities.)  

3% reservation in promotion under Section 33 

Similarly, by twisting the interpretation of section 33, the Babus have for long denied the 3% reservation in promotional posts to employees with disabilities particularly in group A and B posts citing various untenable reasons.  

Now the Bombay High Court has dealt with the issue in a PIL filed by an NGO - National Confederation for Development of Disabled. The petition pointed out that the ratio of percentage of direct IAS to IAS by promotion or election was 67% : 33% in Maharashtra state at present. Thus effectively, out of 100 new posts, 67 were being filled by people who have been directly recruited in the IAS category and 33 posts were filled by state civil service officers.  Thus the reservation in 33% promotional posts was being denied to the disabled officers from State Civil Services (for the impugned executive orders provide for no reservation in promotion in Group A and B posts!).

In a remarkable judgement the Division Bench of Chief Justice Mohit Shah and Justice M S Sanklecha has on 04 December 2013, directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota i.e.  now reservation would be applicable on all the 100 posts.   The court held that it is clear  that  reservation has  to  be computed with  reference to  total  number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion.  Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. 

Judgement

Download the above Bombay High Court judgement in PIL No. 106 of 2010  titled National Confederation for Development of Disabled and another versus Union of India and ors.  (PDF 132 KB) or read below:






Manner of computation of reservation under Section 33

The manner of arriving at or computing 3% reservation in various posts has not been spelled out in the Act. and thus in exercise of the powers conferred by sub-sections (1) and (2) of Section 73 of the Act, the government (read babus) used their discretion to spell it out through executive orders (read DoPT Memos) thereby restricting the reservation benefits to the minimum particularly in Gp A and B posts.  

For Eg. Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities, wherein the 3% reservation for the disabled persons was being computed by taking into account the total number of vacancies arising in Group C and D posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Group D posts. 

However, interestingly, when it came to Gp A and B posts, it was specifically restricted to be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment.

Justification to such a restriction given was that since the reservation for Group C and D posts is being calculated on the basis of the vacancies in identified as well as unidentified posts prior to the Act came into existence and in view of the provisions of Section 72 of the Act (Act to be in addition to and not in derogation of any other law), continued in the same way, however, reservation for Group A and B posts is  to be calculated on the basis of the vacancies for identified posts as per the provisions of the Act.

The court thus decided that the modus of computation of reservation on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength will uniformly apply to Group A, B, C and D and not just Gp C and D). Supreme Court Judgement dated 08 October 2013 in Union of India  Versus National Federation of Blind (Civil Appeal 9096 of 2013) (click on link for judgement).

Accordingly, the DoPT  issued a revision on 03rd December 2013 to its Memo dated 29.12.2005 (click link for a copy)

The way ahead

The tendency of the Government (read Babus) is to find ways to block the entry of the disabled into the mainstream of employment. This undeclared blockade has no direct link with abilities of persons with disabilities and indicates a greater malady that exists in our system. This can only be tackled by a sincere attempt to raise awareness of all government employees from the top order to the lowest about the capabilities of the disabled and also supporting employees with disabilities with reasonable accommodation and equal opportunities to work and prove their worth. At the same time, the executive has to be interpret the benevolent provisions of the Act so as to give effect to the will of the legislature and the mandate of international convention called UN CRPD. 

One out of box idea is to scrap the Identification List  and  the present system of effecting reservation on identified posts. Let all posts be open for persons with disabilities with only condition that each person showcases how he/she will perform the functions of that post. Those competing on merit be not adjusted against reserved vacancies (policy exists but seldom implemented thereby defeating the intent of legislature of minimum 3% reservation). The government on their part must provide reasonable accommodation and an enabling environment to the employees with disabilities. I am sure this will work out and we must give it a try.

Here are some stories on such undeclared blockade and court intervention that recently made headlines in Indian Express and Times of India.

Civils: Centre, state told to implement quota rules for disabled 

Aamir Khan, Indian Express, Mumbai, Thu Dec 05 2013, 11:58 hrs

The Bombay High Court on Wednesday directed the state and Union governments to implement the rules of reservation for differently-abled candidates in civil services. The court also said the rules would apply during promotions.

The court was hearing a PIL filed by the National Confederation for Development of Disabled, stating that the People With Disabilities (PWD) Act was being violated. It sought the implementation of the rule, which provides 3 per cent reservation to disabled people in civil services recruitment. Directing the state and the Union government to implement the rule, the division bench of Chief Justice Mohit Shah and Justice M S Sanklecha directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota.

The petition said the ratio of percentage of direct IAS to IAS by promotion or election was 67%:33% in the state at present. "Therefore, out of 100 new posts, 67 are filled by people who have been directly recruited in the IAS category and 33 posts are filled by state civil service officers. As per the PWD Act, three per cent of the posts in the IAS are reserved for such class of people. Thus, reservation should be applicable to all the 100 posts," the petition stated. It also contended that the quota for PWD had not been filled for 15 years. According to the Constitution, the authorities are under obligation to apply the provisions of the PWD Act. Granting relief to the petitioners, the HC disposed of the petition.

Source: Indian Express

Disabled people clear UPSC, but wait for service allocation

Rema Nagarajan, TNN | Dec 2, 2013, 04.55 AM IST

MUMBAI: Several persons with disabilities (PWDs) who crack one of the toughest exams in the country and get selected for the civil services are routinely rejected with the government claiming there is no suitable service for them. 

Source: Times of India, 02nd Dec 2013

They are good enough to overcome their disability and get selected for the civil services after clearing two levels of exams and the interview, but the Department of Personnel and Training, the allocating authority, rejects them and cancels their candidature.

In the last two years alone, out of 67 such candidates who got selected, 11 are still waiting to be allocated services. Many selected PWDs are allocated lower services  than their ranking merits, on the plea that the nature of their disability prevents them doing the job in most services.

So how do babus sitting in offices decide what candidates with varying levels and kinds of disabilities are capable of? The answer lies in a totally arbitrary list called "list of services identified suitable for physically disabled category along with physical requirements and functional classification" published in the gazette. It lays down what service a successful candidate with disability can get. For instance, under the category of locomotor disability, if the disability affects both hands or arms, you can get into the most sought-after Indian Administrative Service (IAS) but you would not be eligible for any of the other 23 services.

Again, the Delhi Andaman and Nicobar Islands Police Service (DANIPS) is open to those with one leg affected or whose hearing is impaired. However, there is no place for people with these or any other disability in either the Pondicherry Police Service or the Indian Police Service (IPS). How different can the job be in different police services? In an age of economic crime and cybercrime, will the police service be limited to physical fitness or brawn and not brains?

All accounts services, the Indian P&T Accounts & Finance Service, Gr.A, Indian Civil Accounts Service, Gr. A and Indian Railway Accounts Service are open someone with one arm (OA) or one leg (OL) affected or with one arm and one leg affected (OAL) and to those with both legs affected (BL). However the Indian Audit & Accounts Service Gr. A alone is not open to persons with both legs affected. Why is only this accounts service not open to people with both legs affected? Nobody seems to know.

"My disability says both legs affected. But I use crutches and can do all jobs. However, most services are closed to me because some officials who have never met me decided that if both legs are affected, I must be immobile or unable to do most jobs. It is totally unfair. This identification of service has to be done away with. Let them select us, meet us, see what we can do and allocate us services accordingly and by our ranks," says a candidate who cleared the exam earlier but will be appearing again for the civil service exam on Monday, hopeful of getting in again through the 3% quota in all services for PWDs mandated by the Disability Act 1995.

The identification of service ought to be abolished as it is discriminatory under the Disability Act and under international conventions signed by India on ensuring equal rights to the disabled, pointed out yet another PWD. 

Officials in the DoPT did not comment despite several attempts to get their version."Frankly, I am appalled that nine years after this issue was first brought to light, it remains unresolved, that too, against the express orders and directions of the Prime Minister. If the country, the government and the prime minister's office in particular wish to demonstrate their true commitment towards protecting the rights of India's disabled citizens, they ought to resolve this issue once and for all," said Javed Abidi of the National Centre for Promotion of Employment for Disabled People (NCPEDP). He added that in protest against such apathy, NCPEDP will not take part in the "charade" of celebrating World Disability Day on December 3 when "speeches would be delivered, advertisements issued, and some more false promises made".

News Source: Times of India