Frame rules for appointing Disability Commissioner- Ktk HC

Frame rules to appoint commissioner for disabled, HC tells govt
Bengaluru, Aug 04, 2015, DHNS:

The High Court on Monday directed the State government to frame rules and guidelines for appointing the Commissioner for Persons with Disabilities in four months and to appoint a new commissioner by following the new rules.

Hearing a petition by the All India Physically Handicapped Welfare Association, challenging the appointment of K S Rajanna as the Commissioner for Persons with Disabilities, a division bench comprising acting Chief Justice S K Mukherjee and Justice B V Nagarathna disposed of the petition. The bench passed an order stating that Rajanna can remain the commissioner till the new rules are framed and a new commissioner is appointed. The petitioners had contended that Rajanna - who himself is a disabled person - is not eligible enough to hold the position of Commissioner for Persons with Disabilities. The petitioner had challenged his appointment as the commissioner.

Source: Deccan Herald 

Trial Court takes offence to lack of dignified mobility & human rights of an accused with disabilities

Disabled accused made to crawl to fifth-floor court
Sana Shakil,TNN | Aug 6, 2015, 02.17 AM IST

NEW DELHI: A trial court here was left shocked when a disabled person, an accused in a criminal case, had to crawl on his hands to the fifth-floor courtroom because police did not think of arranging a wheelchair for him.

The accused, Yameen Malik, whose legs appeared to be deformed, was being produced in court on Monday for custody proceedings in a rape case.

When additional sessions judge Sanjay Sharma found Malik crawling in the courtroom, he questioned the investigating officer whether there were wheelchair facilities in the jail lock-up for production of disabled persons in court. The IO failed to give any answer.

"The court was shocked to see that the accused, who somehow managed to crawl on his hands, was produced before the court without a wheelchair. It means he has crawled all the way from the jail to this courtroom on the fifth floor of the complex. This is quite painful," the judge observed.

The judge has sought a detailed report from the Delhi Police commissioner and director general of prisons on what the existing provisions were for accused persons with disabilities.

The court said it appears that Malik was being produced in court in the same manner since he was arrested on July 27, 2015.

"This court is of the opinion that there was no arrangement (of a wheelchair) when he was arrested and lodged in police lock-up, produced before the court the first time and made to board the jail van as well as when he was received in jail lock-up at Karkardooma complex. The case demonstrates total lack of sensitivity and concern for the rights of a disabled person," the judge observed.

The court stated that a person with disabilities was entitled to an equal opportunity to access the justice system and could not be denuded of his basic human rights to be treated with dignity and respect. "...it is the duty of the state to make %the legal system accessible to such a person by making an effort to remove physical barriers," it stated in an order passed on Monday.

The court has asked the police commissioner to state whether wheelchairs are available at all police stations and jail lock-ups. It sought to know if there were any disabled-friendly toilets at police stations. The police chief was also asked if any direction had been issued to police stations for providing wheelchairs.

The judge told the police chief to inform the court about action taken against the IO of the case and lock-up incharge of Karkardooma court complex for violating directions, if any, on movement of disabled persons. Similar questions were put to the DG of Tihar regarding disabled-friendly facilities in the prison complex. Compliance reports from both offices are likely to be filed in court on Thursday.

Malik was arrested on charges of raping a minor girl. The case is at an initial stage.

A police officer told TOI that there were specific directions on how accused persons with disabilities are to be dealt with. Police are duty-bound to provide wheelchairs in such cases, he said. "Generally, we avoid arresting any accused with disability unless it's imperative and may affect investigations. But it's the duty of the investigating officer to arrange for a wheelchair before arresting the accused or producing him before the court," said the officer, who did not wish to be named.

Times View

It is shocking that a disabled person who is an accused should have had to crawl up five floors to be present in the courtroom. His human rights do not cease to exist merely because he is an accused, even if it is for a heinous crime. Indeed, they would not cease to exist even if he were convicted of that crime. Police should have ensured that he was provided a dignified means of getting up there. If for some reason that was not possible—say because the lift was not working—the proceedings should have been shifted to a venue, like the ground floor, more accessible to a disabled person.
http://timesofindia.indiatimes.com/city/delhi/Disabled-accused-made-to-crawl-to-fifth-floor-court/articleshow/48367771.cms

SC directs TN govt to keep a Judge slot for visually impaired candidate

Keep judge slot for 70% blind lawyer, SC tells Tamil Nadu govt

A Subramani, TNN | Jul 18, 2015, 05.54PM IST

CHENNAI: A CBI prosecutor suffering 70% blindness is close to realizing his dream of becoming a judicial magistrate, as the Supreme Court has directed Tamil Nadu government to keep one post of civil judge vacant for him.

An interim order to this effect was passed by a bench of Justice V Gopala Gowda and Justice S A Bobde on July 10.

Though V Surendra Mohan, 29, of Thiruvotriyur in Chennai got through written examination his name was not shortlisted for viva voce. He filed a writ petition for inclusion in the interview list. As an interim order, the court allowed him to take part in the interview and the result was kept in a sealed envelope. When it was opened after a later order, it was revealed that Surendra Mohan had secured 178 marks out of 400 in written examination, and 38.25 marks out of 60 in viva voce. To a court query, Tamil Nadu Public Service Commission said he was well within the zone of consideration and appointment for a civil judge post.

However, he was not considered for appointment since he suffered more than 50% visual disability, whereas a proposed amendment to rules limited the disability between 40% and 50% for eligible candidates.

On June 5, the high court upheld his exclusion saying, "Taking into account the nature of duties to be performed by the civil judge, the government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40% to 50%."

Surendra Mohan took the case to the Supreme Court saying the high court "wholly erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995."

The judgment proceeds to reject the petitioner's claim without either an executive order or an amendment coming into force, he said, adding, "without the law having been changed, there was no basis for the judgment at all."

Reiterating that there is no way he could be excluded from the selection process, he said a GO dated April 11, 2005 clearly notified that PB (partially blind) persons are eligible for civil judge post. "The petitioner, who has 70% partial blindness, cannot in any way be excluded from the recruitment, he said, adding that the high court judgment overlooked the overwhelming discrimination in the system against the disabled, and in an egregious step it excludes the only fully eligible blind man."

Source: Times of India

Visually Impaired Public Prosecutor denied Magistrate post despite clearing Test, approaches SC

Please refer to my earlier post  titled "Committee of Judges decide a VH can not be a Judge in Tamil Nadu" dated 08 June 2015. The said candidate who is already working as a public prosecutor and denied elevation as a magistrate on flimsy grounds of disability, has finally approached the Supreme Court of India. The issue has been covered by Times of India succinctly below:

A 70% blind person rejected for magistrate post despite being selected approach SC
A Subramani,TNN | Jul 6, 2015, 01.06 AM IST

CHENNAI: Perhaps emboldened by the success of significant number of differently-abled people cracking the civil services examination on Saturday, and the case of Beno, the first 100% visually disabled person to be absorbed in IFS, a 70% blind person rejected for magistrate post despite being selected, is now knocking at the Supreme Court doors.

V Surendra Mohan of Tiruvottriyu, who is an assistant public prosecutor of the CBI at present, cracked magistrate selection test, but was denied appointment by the Tamil Nadu Public Service Commission saying persons with more than 40% visual disability, could not be considered for magistrate's post. When challenged, Madras high court on June 5 upheld the rejection saying: "Taking into account the nature of duties to be performed by a civil judge, government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40 per cent to 50 per cent."

The 'proposed amendment', does not deprive the benefit of reservation, but only restricts it to those whose percentage of disability is below 50%,' the high court reasoned.

Questioning the conclusion, Surendra Mohan filed a special leave petition in the Supreme Court framing a volley of question of law. He said the high court had erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Wondering whether the high court could proceed on the basis of a "proposed amendment" while ignoring the law as it stood, the SLP says when there is no other blind candidate available for any of the posts sanctioned, is it legal or equitable at all for the authorities to have relied on an internal correspondence between the government and the high court to ensure that no blind individual was accommodated.

Noting that with 70% blindness, he has been discharging his duties as an assistant public prosecutor, he said there is no legal basis for excluding him from the civil judge post. In a series of recruitment drives over the years, the posts reserved for the blind have gone abegging, Surendra Mohan said, adding: "This year as well, as a result of the illegal action of the authorities, no blind candidate has been recruited, reflecting a complete apathy on their part in discharging obligations placed on them by the Constitution and the laws."

According to an April 11, 2005 government order, for civil judge posts PB (partially blind) persons are eligible, the SLP said. A GO dated August 31, 2012 excludes only those with "complete blindness", and hence with 70% partial blindness he cannot in any way be excluded from the recruitment, Surendra Mohan has said.

Source: Times of India

A person with 71% physical disability can't study Medicine - says MCI's resolution!

Dear Colleagues,

The resolution of Medical Council of India that the disability must be between 40 per cent and 70 per cent to be eligible for admission and for seeking a seat reserved for candidates with physical disability itself is faulty. The degree of disability is a medical model and can not be a conclusive reason to declare what a person with disabilities can do or not do. Then we have highly subjective disability evaluation system wherein two different doctors give different grading of disability to the same person. A person with 71% will thus be technically outrightly rejected for the wrong assessment due to subjectivities involved.

Hon'ble High Court may have given the benefit to the petitioner in the instant case, however, technically even the bench is not competent to decide on the degree of disability, unless doubting the State Medical Board's assessment, it ordered for re-constitution of Medical Board which gave an otherwise recommendation on it. 

At the most, the bench could have expressed its opinion on the discernible abilities of the petitioner observed by them and ordered accordingly. I feel, getting in to guess work of percentage of disabilities is like falling in to the trap of 40-70 percentage set out by the improper and unreasonable resolution of the MCI which is not supported by the disability legislation in the country. This classification has been created by MCI of its own which doesn't stand the test of law.

Here is the news coverage:

Reconsider admission of physically disabled student: HC

A special medical board set up by the state government had found the student unfit for health science courses and ineligible for a seat under the physically disabled quota as his disabilities stood at 88 per cent.

Written by Ruhi Bhasin | Mumbai | Published on:June 26, 2015 2:50 am

Noting the movements of a physically disabled student inside the courtroom, the Bombay High Court has directed the state government to consider his admission in the first of year MBBS course. The student was earlier denied admission under the physically handicapped quota.

“He (petitioner) has been walking with braces and having seen his physical movements in the court room, we are of the view that his disability cannot be assessed as 88 per cent. His case should be considered for admission to the first year MBBS course on the basis that his disability is between 50 per cent and 70 per cent ,” said Chief Justice Mohit Shah and Justice A K Menon.

Earlier, a special medical board set up by the state government had found the student unfit for health science courses and ineligible for a seat under the physically disabled quota as his disabilities stood at 88 per cent. While under the Medical Council of India resolution, the disability must be between 40 per cent and 70 per cent to be eligible for admission and for seeking a seat reserved for candidates with physical disability.

The HC, however, directed the state government to consider his case on the basis of his marks obtained by him in the common entrance, MH-CET, 2015, for admission to first MBBS course in a seat reserved for physically handicapped.

The student had sought admission to the first year MBBS course in the Government Medical College in a seat reserved for physically handicapped on the ground that his disability is between 50 percent and 70 percent.

He was born on March 18, 1996 and had been suffering from congenital disability involving both the lower limbs due to Bilateral Congenital Dislocation (CHD) of hip and Congenital Talipes Equinovarus (CTEV).

From 1996 to 2004, his father who is a doctor, provided him with treatment and care, including multiple surgeries and physiotherapy.

The boy underwent five surgeries on the deformities and the correction was carried out to the extent that there is no more dislocation of the hip joint.

There were, however, restrictions to the hip joint while doing physical activities of the lower limb. Pooja Thorat, the petitioner’s lawyer, informed the court that the special medical board has examined him without wearing braces. “He, infact, was wearing braces even while studying in school and was himself commuting from his residence to the school,” the lawyer had submitted.

Source: Indian Express

UPSC discriminates against disabled in Civil Services Exam - PIL

HC notice on PIL on quota for disabled in civil services exam

Last Updated: Saturday, June 20, 2015 - 00:58

New Delhi: The Delhi High Court today sought response of the Centre and UPSC on a plea by an organisation for disabled persons seeking quashing of the civil services exam notification alleging non-implementation of statutory three per cent quota for handicapped persons.

A bench of justices Mukta Gupta and P S Teji issued notice to the Ministry of Personnel, Public Grievances and Pensions and Union Public Service Commission (UPSC) and sought their reply by July 15 on the plea by Sambhavana which has alleged non-compliance of high court's orders.

Sambhavana has claimed that as per the examination notice, approximately 1129 vacancies are expected to be filled, out of which only five vacancies have been reserved for candidates with visual impairment, whereas the Supreme Court in 2013 had held that three per cent reservation on total number of vacancies in the cadre strength have to be reserved against candidates with disabilities.

In its PIL filed through advocates Pankaj Sinha and Nupur Grover, Sambhavana has alleged "blatant disregard" on the part of the central government and UPSC for neither following high court's orders nor complying with provisions of the Persons With Disabilities (PWD) Act.

"The examination is also being conducted in contravention of the guidelines for conducting written examination for Persons with Disabilities notified by the Ministry of Social Justice and Empowerment which have also been held to be mandatorily followed in various judgements passed by this court," the petition has said.

Besides not implementing the quota, it has said UPSC also did not adopt the exam writing policy for disabled on the basis of guidelines of the Chief Commissioner for Persons with Disabilities (CCPD).

It has claimed that due to non-implementation of the high court's directions, disabled aspirants are unable to give exams in an accessible environment.

The organisation has said that as per the PWD Act, it is the statutory obligation of the government to "appoint not less than three per cent vacancies for the persons or class of persons with disabilities".

"This implies that the minimum level of representation of persons with disabilities deals with the distribution of this three per cent among the three categories of disabilities namely, blind and low vision, hearing impairment, locomotor disabled or cerebral palsy and hence, one per cent of seats should be reserved for each of the said categories," it has said.

"It is pertinent to note that in the impugned examination notice, the three per cent reservation has not been adequately meted out by Respondent No. 2 (UPSC) and hence, discrimination on the basis of blindness has been clearly shown," the plea has said.

The petition has sought equal bifurcation of the vacancies amongst the three categories as well as directions to the government and UPSC to implement the executive order of Department of Disability Affairs, Ministry of Social Justice and Empowerment, with respect to "uniform guidelines for scribes for persons with disabilities."

It has also sought "filling up of all backlog vacancies of persons with disabilities arising since 1996 till date".  

PTI/ Zee News

Kerala High Court: Non-consideration of VH candidate by Kannur University illegal

Terming the non-consideration of VH candidate and appointment of another candidate on the post reserved for persons with Disabilities as illegal, High Court has directed the Kannur University to appoint the visually impaired petitioner within two months.


HC to the aid of visually challenged woman

KOCHI, June 9, 2015
K.S. SUDHI

The High Court of Kerala has come to the support of Prasannakumari, a visually challenged woman from Chottanikkara, who appeared for an interview to a post of lecturer in law reserved for disabled persons in Kannur University.

Justice A.K. Jayasankaran Nambiar of the High Court ordered Kannur University to consider the suitability of Ms. Prasannakumari “for the post notified by treating her as a candidate who has the necessary age qualification for the post and is otherwise eligible for the post.”

The court also ordered the university to complete the aforesaid exercise within two months.

In her writ petition, the 40-year-old woman stated that she applied for the post of lecturer in law, reserved for the physically challenged, in 2008 and appeared for the interview on October 5, 2011.

Later, she received information that another woman had been appointed to the post.

The petitioner approached the court to quash the appointment and direct the university to consider her for the post.

Allowing the petition, the court held that the “action of the university in not considering the suitability of the petitioner for the post of lecturer in law, under the quota earmarked for the physically challenged candidates, is clearly illegal.”

The court also declared illegal the appointment of another candidate to the post that was intended for physically challenged candidates, consequent to a finding that no such candidate was available.

The appointment of another candidate as the lecture in law was also annulled by the court.

Source:  The Hindu 

Committee of Judges decide a VH can not be a Judge in Tamil Nadu

What can be more sad than this case wherein the judiciary has decided among themselves and advised the State Government that Visually impaired can not be function as a Judge! We have had many progressive judgements from Chennai High Court, but this one is pretty unreasonable. I am hopeful, this is challenged before the double bench soon.

Here is this story from Tamil Nadu appearing in Times of India.

Partial blindness shatters man’s judge dreams
A Subramani,TNN | Jun 8, 2015, 01.06 AM IST


CHENNAI: A person suffering from 70% blindness has failed to secure the post of a civil judge despite clearing the written examination and viva voce, as the Madras high court ruled that visual disability of more than the maximum permissible limit of 50% cannot be allowed for civil judges.

Dismissing the writ petition of the aspirant V Surendra Mohan, Justice V Ramasubramanian said, "Taking into account the nature of duties to be performed by the civil judge, the government, in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40-50%. If a person has not less than 40% blindness, he becomes eligible for the benefit of reservation. This fundamental and essential feature of the reservation is not taken away by the proposed amendment. The proposed amendment, while not depriving the benefit of reservation to those who come within the definition of the expression 'person with disability', restricts it to those whose percentage of disability, is 50% less. This cannot be termed as nullifying the effect of the statute."

Surendra Mohan, a partially blind person with the percentage of disability at 70%, applied for civil judge post, and passed the written examination. Since he was not included in the list of candidates short-listed for viva voce, he filed the present writ petition for inclusion in the interview list.

The court first allowed him to participate in the interview and said the result would be kept in a sealed envelope. But later it passed orders in favour of declaring the result, in purview of a different case. Surendra Mohan secured 178 marks out of 400 in written examination, and 38.25 marks out of 60 in viva voce, it was revealed.

A difficulty arose because a government order dated August 8, 2014, had made it clear that the benefit of reservation for the physically challenged is available only to those blind and deaf candidates whose percentage of disability is 40-50%.

S Vijay Narayan, senior counsel for Surendra Mohan, then assailed the provision saying it sought to dilute the benefits available to disabled people. Rejecting the submissions, Justice Ramasubramanian further said it was too late to challenge the selection, because, "a person, who participates in a process of selection, cannot later turn around and question the prescription contained in the very notification for recruitment."

http://timesofindia.indiatimes.com/city/chennai/Partial-blindness-shatters-mans-judge-dreams/articleshow/47578609.cms

Madras 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 

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. 

Source: Times of India