Monday, May 4, 2015

Chennai HC asks for all GOs by Tamil Nadu on disability reservation for judicial scrutiny

Govt orders on disabled quota under HC scrutiny
TNN | May 3, 2015, 12.42AM IST

CHENNAI: All government orders in Tamil Nadu allowing or disallowing disabled persons from applying for certain posts in government services have come under judicial scrutiny, with the Madras high court making it clear that it would go through all such orders and circulars to ascertain possible anomalies and discriminations.

A directive to this effect was issued on Friday by the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice T S Sivagnanam while dealing with a PIL challenging exclusion of all disabled persons, except those with orthopaedic disability, from the post of village administrative officer (VAO).

The matter relates to Tamil Nadu Public Service Commission (TNPSC) notification to recruit VAOs. Since there was no mention about the quota for visually impaired persons, a federation for visually disabled persons challenged the legality of the employment notification. After being directed by the court to spell out its stand, the government filed a report agreeing that there should not be any blanket ban on visual or hearing impaired persons from applying for the jobs.

"In view of the question posed by this court, the report, in fact, agrees that there should not be a blanket exemption of persons with blindness and low vision or hearing impairment from reservation to the post of VAO or for that matter any post without considering the percentage of disability and level of functionality," the bench said.

The bench then felt there is a need to reconsider the notification, and added: "A person with disability has potential to enhance his skill either by using technology or training through rehabilitation process. It is stated that in respect of VAO a person with 40% visual impairment can discharge the functions after acquiring certain skills."

It then asked the government to take corrective action by issuing fresh GOs in supersession of the earlier orders, and suggested that it hand over a compilation of all the past and existing GOs in for judicial scrutiny. The matter was then adjourned to June 3 for further hearing.

Source: Times of India 

Wednesday, April 1, 2015

SC issues notices on PIL challenging meagre Disability Allowance

Hon'ble Supreme Court has issued notices to the Centre and Govt. of Odisha on a PIL challenging the meagre monthly disability allowance given to the disabled which is not sufficient to even maintain a person for two days. Here is the news coverage from Times of India

SC takes up petition on disability allowance
Amit Anand Choudhury,TNN | Mar 31, 2015, 04.40 AM IST

NEW DELHI: Is Rs 300 monthly allowance given by government sufficient enough for a totally disabled person to live a decent life? 

The Supreme Court on Monday agreed to hear a plea of a 27-year old physically disabled woman from Odisha who pleaded that the meagre amount provided by state government is not enough and government should frame a policy for providing adequate financial assistance to people like her. 

A bench of Justices J Chelameswar and R K Agrawal issued notice to Centre and Odisha government on a PIL filed by Surati who is suffering from a rare phocomelia disease due to which there was uneven growth of her limbs leaving her 100% disabled. The court asked them to file response on her PIL. 

Surati, daughter of a plumber who is working in National Heart Institute in Delhi, filed the petition through advocate Prachiti Deshpande. 

Deshpande told the bench that Surati is totally disabled since her birth and she is not able to maintain herself on the disability allowances provided by the government. The advocate contended that the family could not afford artificial limbs for her and the court should intervene in the issue. 

Surati has only 30% upper portion of right arms whereas her left hand is totally deformed. She has only two fingers which are joined permanently. Her left leg is normal but her right leg is short with no knee joint. 

"It is the prime duty of governments to protect the health and interests of weaker section of society particularly the persons suffering for severe permanent disablement and remain sick. She has not been able to live on her own accord due to the permanent disability and the obligation lies on the part of government to do the needful," she said in her petition. 

She contended that her parents are finding themselves unable to maintain her as her father is the sole earning member in the family of five people. 

Monday, March 30, 2015

Delhi HC directs Reserved Accessible Parking for Disabled across City of Delhi


Dear Colleagues,

The Delhi High Court on 11 Feb 2015, ordered civic agencies to reserve space for the disabled in every parking space across the city and punish errant contractors and attendants.

A bench of Chief Justice G Rohini and Justice Rajiv Sahai Endlaw  while hearing the PIL W.P.(C) No.1977/2014 titled Vinod Kumar Bansal Vs. Govt. of NCT of Delhi, said the agencies have till now only “paid lip service“ to several rules enacted to ensure access to the disabled and ordered them to “reserve parking spaces most suitable for persons with disability and in sufficient number after assessing the need.“

Indicating its seriousness, the HC directed the state government and its agencies to include a penalty clause in rules so that a parking attendant or contractor who doesn't reserve space for disabled is punished and the contract is cancelled immediately. However, the court left it to the discretion of the three corporations, DDA, NDMC and the government to explore the number of reserved spaces to be kept for the disabled.

On what moved the Hon'ble Court to rule in favour of the rights of disabled, it expressed, “Our own experience in Delhi shows that at several places though ramps have been provided to enable access to wheelchairs, they are there merely for namesake as the gradient is very steep. We want to draw the attention of all concerned agencies that they must standardize the gradient...We find the ramps to be inaccessible in certain places owing to the storm water drain on the sides of the roads which acts as a barrier between the road and the ramp leading to the pavement. All this comes in the way of optimum and intended use of our roads and pavements, with the same being congested, dusty , blocked, uneven and full of potholes, impeding movement."

Directions passed by the Court 

(a) all the concerned agencies to within six months hereof, in each of the parking spaces presently available, reserve parking space/s most suitable for persons with disability and in sufficient number after assessing the need and to on the board reserving the said parking space itself also give the name and phone number of the person with whom the complaint with respect to misuse of the said parking space is to be lodged; 

(b) feasibility of making a provision for action against the contractor / attendant of manned parking lots / places viz. of cancellation of contract etc. for allowing such reserved parking spaces to be used for parking by others be considered; 

(c) feasibility of providing for identification of vehicles of persons with disability be also explored so that it can be identified whether the vehicle parked in the said reserved parking space is of a person with disability or of some other person;

(d) the process of installation of auditory signals at all traffic lights be completed within six months; 

(e) all the concerned agencies to within the said time of six months ensure that all pavements are accessible to persons with disabilities, taking into consideration the observations made hereinabove; 

(f) dedicated phone lines/ e-mail address or other user ID for cross-platform mobile messaging applications for receiving complaints/images/videos of blocking the access to the pavements by encroaching thereon be provided and the telephone number for each district be widely advertised for enabling the citizens to make complaints with respect thereto and the name of the person responsible for dealing with the said complaint and the time within which the complaint is to be dealt with shall also be provided;

(g) each of the concerned agencies to within four weeks hereof file affidavits in the Court naming the person responsible for complying with the directions issued by us and such person shall be responsible for non-compliance of the directions."

Case not completely closed

Though the matter has been disposed off so far as reliefs claimed by the petitioner, but broadening the scope of the intervention, the Hon'ble High Court fixed the next date for hearing on 19 May 2015 with directions that the Secretary, Ministry of Home Affairs, Government of India and the Chief Secretary, Govt. of NCT of Delhi should present their views in this respect before  the Hon'ble Court by filing affidavits, within a period of four weeks from today including as to the consultant / think tank / expert who / which can be entrusted with the said task.

Court expressed its dissatisfaction saying "It is sad that despite expending huge funds and the best intention of the officials and employees, the city is not able to achieve the world class status which it aspires...We are sure that a competent consultant assigned the said task would be able to devise a structure for better governance of the city".

Get a copy of Court Judgement in accessible format here

W.P.(C) No.1977/2014 Vinod Kumar Bansal Vs. Govt. of NCT of Delhi


Media Coverage

(a) Here is a related Media coverage from Times of India in image format.



(b) To read the media coverage from source in accessible format click here: Times of India 

SC unhappy with Govt. steps for persons with mental disabilities

This update on a new PIL concerning the plight of persons with mental disabilities filed before Supreme Court from Telegraph

SC scans steps on mentally disabled

Our Legal Correspondent
New Delhi, March 26: The Supreme Court today directed the central government and all states and Union territories to explain the measures they have taken for the welfare of mentally challenged people across the country.

The court said it appeared that not much had been done so far, although the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, mandates governments to take adequate steps for their welfare.

"We are disposed to think that all the state governments have a definite role to see that the act is properly implemented and the persons under disability, which includes... mentally challenged persons, are taken care of as commanded by the act," a bench of Justices Dipak Misra and P.C. Pant said.

The court passed the order while dealing with a public interest petition that had complained about the pathetic living conditions in Asha Kiran, a government-run care home in Delhi for mentally challenged people.

The bench said it was "absolutely conscious" that this case had "arisen from an order" passed by Delhi High Court relating to the home. Yet, the "pathetic situation of this category of persons which have been highlighted before us in other states cannot be ignored", it said.

"On the contrary," the bench added, "we are obliged to think, occasion has arisen so that there can be a comprehensive study of the situation where this class of people are treated with dignity, respect and, as far as practicable, feel a part of the main stream of life."

The bench said it was "not oblivious of the fact" that in every case, it may not be possible "but there has to be an attempt to identify the possibility".

"We have been apprised at the Bar that the said effort has not been made and, if made, that is not adequate enough to meet the real challenge."

The bench noted that under Section 25 of the act, the government concerned and local authorities are duty-bound to take certain steps to prevent occurrence of disabilities and prepare a comprehensive education scheme providing for transport facilities and supply of books, besides financial incentives for parents or guardians.

"In view of the aforesaid, we direct the impleadment of the Union of India (and) all the states and Union territories. This court hopes and trusts that the Union of India and all the states and Union territories shall respond without taking recourse to any kind of subterfuge and none should take (an) adversarial position for the present cause has its own sacrosanctity," Justice Misra said in his order while fixing July 8 for the next hearing.

Source: The Telegraph

Thursday, March 5, 2015

Delhi HC directs UPSC to distribute vacancies equally [Judgement included)

Dear Colleages,

Please refer to my earlier post titled "Two High Courts direct Extra time, reasonable accommodation & reservation in CSE 2014" whererin writ petition was filed before the Delhi High Court as well as Bombay High Court challenging the constitutional validity of UPSC's Notification Civil Services Examination 2014 on the grounds that it was against the rights of persons with visual impairments granted by the Persons with Disabilities Act 1995. 

While my earlier post contained the judgement of the case filed in Mumbai High Court and an interim order in the case filed in Delhi High Court, this post contains the final order passed in the case before the Delhi High Court bearing  WP (C) No. 3919 of 2014 titled Sambhavana Vs. Union of India and others dated 04 March 2015.

Directions by the Court 

(a) the respondent no.2 UPSC shall find out from the respective Cadre Controlling Authorities the reason for allocating the vacancies in excess of 3% unequally between the three categories aforesaid.

(b) if the Cadre Controlling Authorities are unable to give any valid reason, the vacancies in excess of 3% shall also be equally distributed between the persons with disability of all three categories and the appointments in pursuance to the Employment Notice impugned in the petition shall be made accordingly.

(c) Relief claimed seeking issuance of a direction to the respondents to comply with the Office Order dated 26th February, 2013 supra is concerned, we had in our order dated 19 th August, 2014 held that the guidelines contained therein were issued as per the directions of the Chief Commissioner for Persons with Disabilities who is an Authority appointed under Section 57(1) of the Act and cannot be treated as mere executive instructions and the said guidelines having been issued for effective implementation of the provisions of the Disabilities Act, have statutory force and are bound to be implemented by all Departments and Authorities. No arguments whatsoever were addressed on the said aspect by the learned counsel for the respondents during the hearing of the writ petition and therefore, we hold with respect to the said prayer that the respondent no.2 - UPSC shall abide by the said guidelines for all times to come unless the same are varied in accordance with law.




Tuesday, March 3, 2015

SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion

Dear Colleagues,


Despite a three judge bench of the then Chief Justice, Justice Kurian Joseph and Justice Rohinton Fali Nariman of the Hon'ble Supreme Court rejecting the Centre's argument against the reservation in promotion for persons with disabilities on 12th Sep 2014 in Special Leave to Appeal (C) CC No(s). 13344/2014  in terms of The Persons with Disabilities Act 1995, the Union of India (read DoPT) has been dilly-dallying on the implementation of the Bombay High Court judgement in PIL 106/2010 dated 04 Dec 2013 titled National Confederation for Development of Disabled Versus Union of India and Ors by preferring some or the other objections since September 2014.

However, finally on 27 Feb 2015, a bench of Hon'ble Chief Justice HL Dattu and Mr. Justice AK Sikri of Hon'ble Supreme Court, have once again dismissed a Petition for Special Leave to Appeal (C) No 5914/2015 (Arising out of impugned final judgment and order dated 05/12/2014 in NOML No. 690/2014 in  RPL No. 85/2014 in PIL No. 106/2010 passed by the High Court Of Bombay). 

"How do you expect disabled persons to compete with the abled persons," the bench asked while dismissing the appeal filed by the Centre against the Bombay High Court order directing it and the Union Public Service Commission to implement a three per cent quota in direct recruitments and promotions for the disabled in the IAS.

Like last time, The Hon'ble Bench did not give specific reasons. For a copy of Supreme Court Order dated 27 Feb 2015 click here.

However, a large section of media was present in the Supreme Court and has reported the proceedings succinctly


A report in Times of India covers the entire proceedings as below:

Source: Times of India 

‘Disabled should get reservation in promotion’
Dhananjay Mahapatra, TNN | Feb 28, 2015, 03.33AM IST

NEW DELHI: The Supreme Court on Friday said the government could not deny quota in promotion to those who were appointed to a post under the reservation policy for the physically handicapped. 

A bench of Chief Justice H L Dattu and A K Sikri rejected the Union government's plea to set aside a high court decision ordering that those appointed in government service through physically handicapped quota would also be entitled to reservation while getting promoted. 

Arguing for the Centre, attorney general Mukul Rohatgi said there were four categories of civil services and if a person had availed the reservation benefit in getting a job, it would be unfair to extend the reservation benefit yet again to him while considering him for promotion to the higher category of service. 

The bench was not convinced. It said, "Why confine the reservation benefit only to the entry level and not for promotion. If a person is disabled, he is always disabled. So, as long as the disability continues, he should continue to get reservation benefits. We feel that these disabled persons should have reservation not only at the entry level but also at the time of promotion." 

The law provides for 3% reservation to physically challenged persons in government service. After a long adjudication process on a public interest litigation, the apex court had directed governments to implement the quota for disabled and fill the vacancies including backlog. 

On October 8, 2013, the SC in a landmark order had directed the Centre and states to implement within three months an 18-year-old law mandating 3% reservation for such persons in government jobs. 

The 1995 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force on February 7, 1996 providing a minimum 3% reservation in government establishments to the extent of 1% each for persons suffering from blindness or low vision; hearing impairment; and locomotor disability or cerebral palsy. 

The reservations will be implemented by all government departments, public sector undertakings and government companies at the Centre and states, enlarging opportunities for persons with disabilities eligible for benefits under the law. 

Rejecting the AG's arguments, the bench of Justices Dattu and Sikri said, "Don't give a restrictive meaning to reservation by confining it to the appointment level. Disabled persons should be empowered to compete with normal people in promotion." 

When the AG argued further against grant of reservation benefits in promotion to disabled persons, the bench cut it short by telling him that persons belonging to Scheduled Castes and Schedule Tribes got the benefit of reservation both in appointment and promotion. 




Wednesday, February 18, 2015

CAT allows VH candidate to take exam for unidentified post

Now here, the Central Administrative Tribunal has put its mind to work unlike the traditional approach followed by the courts of mechanical interpretation of statutes. If the Government fails to identify posts where VH can work effectively, the VH candidates should not be made to suffer. Identification of posts has in fact become a roadblock for the competent candidates with disabilities to seek better career opportunities who are better placed  given the advancement in technology. Here is the detailed news appearing in Business Standard.

CAT allows visually impaired to participate in Auditor's exam

Press Trust of India  |  New Delhi  February 17, 2015 Last Updated at 18:40 IST

The Central Administrative Tribunal (CAT) has asked the government to allow a visually- impaired staffer to appear in an examination for promotion to the post of auditor, which was denied on the ground that the post was not suitable for the blind. 

A bench of CAT's judicial officer V Ajay Kumar asked the Centre to permit 41-year-old Mithlesh Choudhary, who is visually handicapped and also belongs to SC category, noting that "a prima facie case is made out". 

Choudhary, who is working as a Multi Tasking Staff at the Jaipur office of the Director, Post and Communication Audit, was barred from participating in the selection process for the post of Auditor on the ground that post was not suitable for blind persons. 

"In the circumstances and in view of prima facie case made out, respondents (Centre, Director, Post and Communication Audit and others) are directed to permit Choudhary to participate in the departmental examination for the post Auditor scheduled to be held on February 24 to 27, 2015, provisionally," the bench said. 

However, the tribunal made it clear that his result shall not be declared until further orders are passed by CAT. 

The interim order was passed by the tribunal after applicant's counsel Aurobindo Ghose, while citing an order passed by CAT in a similar matter, argued before it that Choudhary was entitled for direction to participate in the departmental examination for the post of Auditor.

Thursday, January 8, 2015

Not convinced, Court directs second revision in DoPT Memo 29.12.2005 on Reservation for PwDs

Dear Friends,

Post the directions of the Hon'ble Delhi High Court in its judgment dated 17.07.2014 to the DoPT to carry out further modifications in Para 15 of the OM dated 29.12.2005  so that the directions of the Hon'ble Supreme Court to compute 3% of reservation on total number of vacancies in the cadre strength can be implemented, the DoPT has been playing tactics to avoid granting the dues to the stakeholders. 

Yesterday, i.e. on 07th Jan 2015, the DoPT posted on its website at link: Available OM for Persons with Disabilities  the following memorandum carrying out some "further" (second in series) modifications in to its earlier Comprehensive Memorandum on Reservation for Persons with Disabilities : 





Click here for a screen reader accessible copy of the above memorandum.  For all other memorandums by DoPT related to the disability subject click here: Available OM for Persons with Disabilities.

Objective behind the amendment
The objective of this amendment was to harmonise the Comprehensive Memorandum on reservation to persons with disabilities dated 29.12.2005 with the recent clarification of the Hon'ble Supreme Court  in Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr Vs. National Federation of the Blind and Others which I covered in my blog entry of Dec 10,  2013 titled Physically challenged Vs. Logically Challenged

Does this amendment bring anything new to the stakeholders?
Personally, I failed to find any major difference in the interpretation of said para 14 after two amendments at the direction of the Courts - it is nothing  but merely playing with the words. In nutshell, after a long battle in the court of law, the DoPT just added, "Separate rosters for Group 'A' posts and Group 'B' posts in the establishment shall be maintained."

Was this the intention of the legislature? Did the clarification of Hon'ble Supreme Court really meant this? Is DoPT really intending to giving the disabled their dues as per the spirit of the law and the clarification of the Hon'ble Supreme Court? These are the questions that the Babus of DoPT and Hon'ble PM Modi has to answer. People with Disabilities aren't happy with this attitude nor the way the disability subject is being handled by the departments particularly DoPT. 
  

Tuesday, January 6, 2015

Data collection indicates only 100 out of 1300 schools are disabled friendly


This is further to my earlier post dated 07th May 2013  wherein I had shared the order of the Hon'ble Delhi High Court directing the private schools to provide barrier free infrastructure and also 26th Feb 2014. Now despite the two cases, the government of Delhi has filed a status report in the Delhi High Court indicating that only 100 schools have some facilities for disabled children from amongst 1300 private unaided schools.

Here is the news report published in Indian Express:


The Director of Education (DoE) has been informed that less than 100 of 1,300 private unaided schools in the city have facilities to cater to students with special needs, with most only catering to children suffering from lack of vision of locomotor disabilities.

Only a handful mainstream schools are available for children with hearing impairment and mental disabilities, data submitted by the DoE to the Delhi High Court on Wednesday stated.

A bench of Justices S Ravindra Bhat and Vipin Sanghi had earlier directed the DoE to conduct a study on disabled-friendly facilities in the private unaided schools. The directions were issued in a PIL field by Pramod Arora, a parent of a differently-abled child.

According to the DoE, only 800 schools had submitted data on the facilities available for children with special needs, of which 54 catered to locomotor disabilities and 34 to hearing impairment. In contrast, only 10 schools had facilities to educate visually challenged children and 20 for children with mental retardation.
Interestingly, the DoE noted, a sizeable number of these schools are located in South or Southeast Delhi, or in West Delhi. Very few schools with facilities for the disabled are located in North and East Delhi, the data showed.




Friday, December 12, 2014

Deptt of Ex-Servicemen Welfare gets another rap from Supreme Court for denying benefits to disabled Soldiers


Written by Utkarsh Anand | New Delhi | Posted: December 12, 2014 9:52 am

“They are in the line of fire. They sacrifice their life for you and for us. This is the least you could do for them.” It was the message by the Supreme Court to the Centre, which was fighting against the ex-servicemen of Army over a modest increase in their disability pension.

Coming to the rescue of around 15,000 soldiers, the court rejected an appeal by the government against an order of the Armed Forces Tribunal (AFT), which had extended the benefits of an extra amount in their pensions on account of disability due to service conditions.

On Wednesday, a bench led by Chief Justice of India H L Dattu expressed its disgruntlement over the government’s insistence on denying the benefit to the soldiers on the ground that it would burden the exchequer with an additional Rs. 1500 crore.

“So what? The government can have at least this much of budget for its soldiers who are dying for the people of this country everyday. What is the point of having these memorials and placards saluting our defence personnel if you litigate agianst the disabled soldiers till the Supreme Court. You should pay them,” said the bench, also comprising Justices Madan B Lokur and A K Sikri.

With the writing on the wall, the government’s law officer chose not to argue the appeal further and said they would comply with the order. The bench disposed of around 880 appeals against the AFT order on this issue.

Among those who will be benefited by this order is also Army’s former Vice-Chief Lt Gen Vijay Oberoi, who lost his leg in a gun battle in the 1965 Indo-Pakistan war. Oberoi soldiered on without any financial benefit whilst in service but was categorised as 70 per cent disabled when he retired as the army’s vice chief in 2001.

When the 5th Pay Commission enhanced this to 75 per cent, the Ministry of Defence (MoD) refused to pay. On Oberoi’s petition, the Chandigarh bench of the AFT, in 2010 allowed “broad-banding” benefits to all disabled personnel irrespective of when they left service.

Under the “broad-banding” policy, three bands were to judge disability across the board. Up to 50 per cent disability, a person was to be given the benefits of a 50 percent disability holder; a person with 51-75 per cent disability was to be given 75 per cent disability benefits; while a person with 76-100 per cent disability was to be given 100 per cent disability benefits. The policy was introduced to avoid subjectivity and variance in calculating disability percentage.

This broad-banding was accepted and implemented by the MoD but the benefits were granted to only those who were removed from service by the government on medical grounds, and not to those who retired after their full service. The AFT removed this anomaly and held that all the soldiers shall get the benefit under the policy.

The Department of Ex-Servicemen Welfare (DESW), which comes under the MoD and looks into the grievances and other pension matters of retired defence personnel, filed an appeal against the AFT judgement in February 2012 despite an adverse opinion by the Army Headquarters.