Wednesday, December 9, 2015

SC directs States & UTs to consider Acid Attack Survivors in Disability List [Judgement Included]

Dear Friends,

On Monday i.e. 07th December 2015, the Hon'ble Supreme Court of India, while hearing WP(C) No. 867/2013 titled Parivartan Kendra Versus Union of India and Others,  directed all states to treat "Acid Survivors" as disabled persons and extend job reservation and social welfare schemes. While it's good thought to extend the benefits of this benevolent legislation to mainstream and empower acid survivors, will there be corresponding increase in the %age of reservation? Which disability group would give up their share ? 

A bench of Justices M Y Eqbal and C Nagappan said that steps must be taken to bring such victims to the national mainstream and putting them in the category of disabled person would be a step in that direction. The victims can claim benefits under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act if they are brought in the disability list.

The central law- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 provides for reservation in jobs etc to the tune of 3% where 1% each is reserved for Visually Impaired (both low vision and Blind), Orthopedic Disabilities (including cerebral palsy) and Hearing Impaired. There are several other categories defined in the definition of a person with disability in the Act viz. Leprosy Cured, Mental Illness, Mental Retardation etc. but the reservation is not extended to any other categories except the above three. The judgement is silent on the process of granting such reservation as the law currently has no such provision. The direction in the last para is :

"Disposing of the present writ petition, we additionally direct all the States and Union Territories to consider the plight of such victims and take appropriate steps with regard to inclusion of their names under the disability list."

Let us see how the States and UTs respond to this direction coming from none other than top court of the country. But one thing is certain, in today's scenario, no disability group would be willing to let go their share!



Judgement
Here is a media coverage from Times of India: 


Wednesday, November 18, 2015

Visually Challenged / Blind will be considered for Ktk Adm Service exams from Next Year

Barred from even applying for the KAS Examination this year by Karnataka Public Service Commission, the visually impaired / blind candidates can look for KAS exams from next year where RPSC will also compensate for the number of reservation seats that might have fallen in their kitty. 

However, this doesn't compensate the opportunity lost by those candidate who may not have even looked at the stick of reservation and wanted to compete on their own merit. Their right to equality has been infringed and there can be no compensation of loss of opportunity and loss of time. This has not been appreciated either by the Court nor by the Govt. of Karnataka.  KPSC must extend further age relaxation to such candidates in the coming year who might have become overage due to such a lapsed opportunity to mitigate at least some loss.

Here is the news coverage from Deccan Herald.

HC orders quota for visually challenged in KAS posts
Bengaluru: Nov 17, 2015, DHNS:

The High Court has disposed of a petition, directing the Karnataka Public Service Commission and the State government to incorporate three per cent reservation for persons with low vision and the visually challenged for the posts of KAS officers or group ‘A’ posts in the next appointments.

The National Federation of the Blind had approached the court challenging the KPSC notification in January 2015, which had barred visually-challenged and those with low vision from applying for the posts. However, the court had directed the government to form a committee to examine possibility of including such persons. 

KPSC later issued another notification in October 2015, including persons with low vision and visually challenged as eligible to apply for the said posts in various government departments under the three per cent quota for persons with disabilities.

KPSC had called for applications for two posts of assistant commissioner in commercial tax and finance department and one post of executive officer in the Panchayat Raj department.

Advocate Jayna Kothari, appearing for the Federation, sought a stay on the KPSC’s exams and appointments. However, the stay was not granted, KPSC exams were held and necessary appointments were made in due course. 

A division bench comprising acting Chief Justice S K Mukherjee and Justice B V Nagarathna passed an order stating that as the KPSC’s exercise of appointments had already been carried out, the petitioner’s contention cannot be considered this year. 

However, the bench directed KPSC and the government to incorporate the necessary percentage for people with low vision and visually challenged in next KPSC appointments for the said posts.

Source: Deccan Herald 

Thursday, November 5, 2015

Consent Decree filed to ensure Physically Accessible Polling Centres in Augusta County, Virginia


Dear Colleagues,

The US Justice Department announced today that it has filed a complaint and proposed consent decree today in the U. S. District Court for the Western District of Virginia resolving allegations that Augusta County, Virginia has discriminated on the basis of disability by failing to provide physically accessible polling places to people with mobility and vision disabilities. Title II of the ADA requires public entities to ensure that all of their polling places are accessible to people with disabilities.

Under the consent decree, which must be approved by the court, the County agreed to make permanent architectural changes to a number of polling place facilities, and to provide temporary measures such as portable ramps and temporary doorbells at others, to provide accessible polling places throughout the County. The County, which cooperated with the United States, also agreed to revise its policies and polling place survey instrument, and provide training to poll officials.

Click here to read the Consent Decree. However, it throws light that disability continues to be a subject last on the agenda of administration -some times due to lack of awareness and while other times due to lack of enforcement - both in developed as well in developing world. Glad that Deptt of Justice has taken this initiative to make Polling Process accessible to residents with Disabilities in Augusta County and also to create mechanism for monitoring and enforcement for a longer term.

Monday, November 2, 2015

Disability Pension is independent of length of service - Punjab & Haryana HC

Dear Friends,

You don't need a qualifying service to be eligible for disability pension, the P&H High Court has clarified. The Union of India’s defended that the petitioner had less than 10 years of qualifying service required under Central Civil Service (Pension) Rules, 1972 to be eligible for disability pension, which the court rejected.  

Disability pension not linked to length of service, says HC
Saurabh Malik, Tribune News Service

Chandigarh, October 30, 2015

The Punjab and Haryana High Court has made it clear that disability pension has no connection with the length of service and is payable when an employee suffers from disability.

Forty years after a Border Security Force official was invalidated out from service with 100 per cent blindness, the high court also held him entitled to disability pension from the date of discharge.

The court was told that petitioner Amarjit Singh had suffered acute eyesight failure, while he was posted in high altitude area in the Ladkah sector. In December 1974, the Union of India issued a letter claiming that the petitioner was not entitled to pensionary benefits as per the Rules. Subsequently, he was invalidated out from service in February 1975. He was seeking disability pension from the date of discharge but without success.

The Union of India’s case was that the petitioner had less than 10 years of qualifying service required under Central Civil Service (Pension) Rules, 1972. Taking up the matter, the Division Bench of Justice Hemant Gupta and Justice Raj Rahul Garg observed the question of qualifying service arose to earn pension or invalid pension on attaining the age of superannuation under the Central Civil Service (Pension) Rules, 1972.
But the writ petitioner was invalidated out from service on account of medical condition. Such discharge entitled all persons paid from civil estimates to extraordinary pension, which included disability pension.
The bench added: “We find that under the 1972 rules, invalid pension is availed by an employee if he seeks retirement on account of any bodily or mental infirmity.

The case

  • Forty years ago, BSF official was invalidated out from service with 100 per cent blindness
  • The court was told that petitioner Amarjit Singh had suffered eyesight failure, while he was posted in the Ladkah sector
  • In December 1974, the Centre issued a letter claiming that the petitioner was not entitled to pensionary benefits as per the rules


Mumbai HC cites the capabilities of Blind as Solicitors & Advocates to deny claim of tax exemption for Eye Checkup

Dear Friends,

There are two areas worth noting in this judgement. Firstly, the Mumbai High Court has indicated that Blindness is no handicap in discharging the duties of a solicitor or an advocate and by that analogy even a judge. Secondly, you may not be able to claim tax exemption for tour expenses even for reasons of an eye test in computing the income chargeable under the head profits and gains from business or profession.

Shot in arm for disability advocates who have been facing extreme resistance from some states & their judiciary who have consistently denied people with blindness the opportunities of being  a judge by obtaining exemption under section 33 of the Disabilities Act. Crazy no?

Here is the news item from TNN:

Lawyer denied tax waiver for eye test done while abroad
Shibu Thomas, TNN | Oct 30, 2015, 01.30AM IST

MUMBAI: A person's eyes are not just used exclusively for professional purposes, said Bombay high court while rejecting a lawyer's claim seeking tax exemption for a foreign tour, which he claimed was a "pre-operative eye check-up".

A division bench of Justice M S Sanklecha and Justice Girish Kulkarni pointed to blind advocates practising in courts.

"Eyes are an important organ of the human body and are essential for the efficient survival of a human being. Eyes are essential not only for the purpose of business or profession but for purposes other than these," said the judges, adding, "We are not persuaded to accept the submission that eyes are required to be exclusively used for the purpose of profession. No evidence has been brought on record to establish that in the absence of investigation and treatment, the applicant would be handicapped in discharging his obligation as a solicitor/advocate. While at this, we cannot resist but point out that in this court itself, we have a couple of visually challenged advocates who are competent in discharging their duties."

The court also cited former advocate general of West Bengal Sadhan Gupta who was visually challenged. "It is therefore clear that the said expenditure as claimed by the advocate is not in the nature of the expenditure wholly and exclusively incurred for the purposes of the profession of the applicant and thus this expenditure cannot be claimed by the applicant to be allowed as deduction in computing the income chargeable under the head profits and gains from business or profession."

The court was hearing a petition filed by advocate Dhimant Thakkar, who claimed tax exemption for the period 1986-87 of an amount of Rs 43,600 for a foreign tour, which he claimed was in connection with preoperative tests. The income-tax department rejected the claim saying the expenses were for a personal reason.

The advocate claimed that but for this treatment he would not have been able to continue with his profession and therefore the expenditure ought to have been allowed as a deduction for professional expenses. The HC disagreed and concurred with the tax department that if the advocates claims were accepted, then "every and all expenses incurred on daily living and food would be allowable as part of tax exemption".

Monday, October 12, 2015

Supreme Court of India fumes at Several states silent on implementation of Disabilities Act

4th Sep, 2015

Bringing into focus the plight of disabled people, the Supreme Court today fumed at several states not filing responses as to steps taken to implement various provisions of the Disability Act.

In April , the apex court had issued notices to the Centre and all states on a plea seeking periodic monitoring of implementation of various provisions of the Disabilities Act. But ten states including Delhi Rajasthan, jharkhand have not yet filed responses.

An angry bench headed by justice Dipak Misra told lawyers representing several states: “let the matter now be posted for October 13. We are giving last chance to all states to file their responses. In the event of further failure strict action will be taken”. The plea states that a majority of citizens belonging to disabled  category have not got any relief even two decades after the rules were passed.

Justice Sunanda Bhandare Foundation, on whose petition the court has been issuing orders for the welfare of the differently-abled since 1998, had moved an application saying that unless there was an effective monitoring system on the lines of Vineet Narain judgment in which the SC is keeping a tab on investigation of various corruption cases and issuing periodic directions, the implementation of the Persons with Disabilities Act, 1995, will merely remain on paper.

Ambar Qamaruddin, the lawyer for the petitioner, pointed out that the court itself had last year observed that only the Centre, some states and the UGC had satisfied it on the implementation of the rules.

A majority of the states were yet to comply with it and thus, the need for a monitoring mechanism.

“Even in last year’s order, the court had said all measures had to be taken ‘positively by the end of 2014’ but nothing had happened,” Qamaruddin submitted.

“Central government, state governments and UTs may be directed to file a quarterly/half yearly status report before the court,” he argued.

The directions pertained to reservation of 1% of identified teaching posts in various schools and colleges for the disabled, jobs in private sectors and PSUs, seats for students in various universities and creating special
facilities for differently-abled persons at public places such as railway stations, bus terminus, airports and in trains, buses and aircraft.

Directing that all measures be taken by the end of 2014, the court had in its order in March, 2014, said: “The beneficial provisions of the 1995 Act cannot
be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy.

“As a matter of fact, the role of the governments in the matter such as this has to be proactive. In the matters of providing relief to those who are differently-abled,
the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic.

“A little concern for this class who are differently-abled can do wonders in their life and help them stand on their own and not remain on mercy of others.


Wednesday, September 2, 2015

Supreme Court on filling up of backlog Disability quota (in promotion?)

A unique example of how selected media reporting can create grapevines.  I have learnt that the proceedings in the court were completely different from what has been reported here by the TNN.

The Hon'ble Supreme Court was actually hearing a contempt petition filed by the National Federation of the Blind against the Central Govt for complying with the court's October 8, 2013, regarding filling up of 15000 vacant posts. SC dismissed the plea saying that implementation is under way and accepted Center's response that it will be completed by 31st March 2016.

In this context, While disposing of the plea, SC clarified that since the Govt. of India has committed itself to fill up the entire backlog of vacancies numbering about over 15,000 by way of a special recruitment drive in terms of office memorandum dt. 22.5.15, the contempt proceedings will not be initiated. 

The court said the question of reservation in promotion was not there for adjudication since its October 2013 judgment was only in respect of filling up the vacancies reserved for physically disabled people at the entry point, and could not be read into promotion. The story made out thus is unnecessary reading between the lines.

The bench of Justices Ranjan Gogoi and N V Ramana said this while giving clarification on its October 2013 judgment by which the court had held that the 3 percent reservation for physically challenged people would depend on the total number of vacancies in the cadre strength.

The court said its order has to read in the context of two questions it had framed and addressed in its October 8 judgment. And these two questions were:

(a) First was about the manner of computing 3 percent reservation for people with disabilities as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act.

(b) The second question that the court had answered in the October 8 judgment was whether the reservation should be post-based or vacancy-based.

I feel the Hon'ble Bench  thus did not sit to review or clarify its earlier order on the issue of reservation in promotion for persons with disabilities. In fact after the said judgement of October 08, 2013,  the Hon'ble SC upheld the orders of Bombay High court, High court of Delhi and High court of Allahabad laying down that Section 33 includes reservation in promotion as well by way of various judgments particularly judgments dt. 10.12.13 in Civil Appeal No. 9473/2011 titled as Municipal Corporation of Delhi Vs. Manoj Gupta, judgment dt. 12.9.14 in C.C. No.13344/2014 and judgment dt. 27.2.15 in civil Appeal No.5914/2015 titled as Union of India Vs. National Confederation for Development of Disabled and Ors and judgment dt. 20.3.15 in Civil Appeal No.4641/2015 titled as State of U.P. Ors. Vs. Sanjeev Kumar Jain and Ors. dismissing the civil Appeals/ SLPs both of Govt. of India as well as respective State Govts.

Therefore, it is to be clearly understood that if  SC /ST are given the quota in direct recruitment as well as in promotion, the disabled category should not be left out from this benefit under the benevolent legislation whose mandate is equal opportunities, protection of rights and full participation of those living with disabilities.  The govt should bring out appropriate revised DoPT memo to implement this long pending issue of reservation in promotion for government employees with disabilities.

Here is the TNN reported version that sought to create confusion among the stakeholders :

SC: Differently abled can’t claim quota in promotion

Amit Anand Choudhary,TNN | Sep 2, 2015, 05.36 AM IST


NEW DELHI: Differently abled persons can claim benefit of reservation in government jobs only at the time of appointment and cannot get the benefit of the affirmative policy in promotion, the Supreme Court said on Tuesday while clarifying its earlier verdict.

A bench of Justices Ranjan Gogoi and N V Ramana said the apex court's 2013 verdict did not hold that the reservation policy could also be extended to promotion in jobs and stressed that the disabled could claim benefits only at the time of recruitment.

The SC had in 2013 directed the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act which came into force in 1995.

The Centre submitted that the court had not, while passing order for three percent reservation, dealt with the issue of reservation in promotion and the disabled could not be allowed to claim the benefits.

Although the Court had directed that all vacancies under 3% reservation be filled up within three months, the governments failed to comply with the order in the last two years and there are still 10,000 vacant posts in central government. Solicitor General Ranjit Kumar assured the court that all vacancies would be filled up by the end of this financial year.

Source: Times of India 

Tuesday, August 11, 2015

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 

Thursday, August 6, 2015

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

Tuesday, July 21, 2015

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."