Chattisgarh High Court | CG State & its HC fail candidates with disabilities; State Administrative Services exempted from purview of Section 33 of Disability Act 1995 [Judgement Included]

Dear Colleagues,

We are increasingly coming across cases where Court judgements are failing the persons with disabilities! Despite commenting  in the judgement that the State action defeats the objective of Persons with Disabilities Act 1995 and cornering the State for its inaction/ omission, the judgements fail to render effective justice in favour of persons with disabilities.

I can cite several such cases that I have come across recently. But here we are discussing a most recent judgement from Chhattisgarh High Court, where a 100% blind candidate, who cleared Public Service Commission (PSC) Exam and got appointment as a Tahsildar, approached the high court seeking a direction to the state to grant upper age relaxation up to 10 years and to reserve vacancies not less than 3% for persons or class of persons with disability as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 for the post of Dy. Collector. The State defended saying that the benefit of age relaxation of 10 years was only available to Class-III and Class-IV posts as per the circular dated 12-2-1981 and not in Gp I and II. 

Also the State had already taken a retrograde step by issuing a notification dated 7-9- 2006 in accordance with the proviso to Section 33 of the Act of 1995 exempting the cadre posts of State Administrative Services from the operation of Section 33 of the Act of 1995 meaning thereby that there will be no reservation in  the cadre of State Administrative Service under section 33 of the Disabilities Act of 1995 in favour of persons with blindness or low vision, hearing impairment, locomotor disability or cerebral palsy.

It would be pertinent to mention that while the cadre posts of administrative services have been identified as suitable to be held by persons with blindness and low vision among others by the Centre and several blind candidates are successfully working as IAS officers under the Union of India, while a state under Union of India called Chhatisgarh decides that disabled people can not function as administrative officers. 

Who gives the state (read bureaucrats) to pass judgement on the capability of blind administrative officers and decide to exempt the post from the purview of section 33. The action smacks of arbitrariness and discrimination on the grounds of disability and must have been quashed by the judiciary.

The Court instead of quashing the notification being in contravention of Article 14 of the Constitution of India and giving relief to the candidate, dismissed the writ petition itself, saying that in light of the notification it can not give the petitioner any relief.

The judgement though reminded the State that the very object and purpose of the Disability Act 1995 is defeated if no reservation is provided for persons with disabilities in the cadre of State Administrative Service. And it directed the Chhatisgarh government to "reconsider" its notification which exempts the State Administrative Service from the requirement of providing reservation to the persons with disabilities preferably before the next notification  for examination for the posts are issued.

This direction/ judgement  literally fails the petitioner and is a joke played on "Right to Equality" enshrined in the Constitution of India. State is a perpetrator of injustice in this classic case and guilty of defying the constitutional mandate and the international commitments made by India to the international comity of nations by signing and ratifying the UN Convention on the Rights of Persons with Disabilities.

Now mere direction to "reconsider" is no direction as the State could always defend its action saying it did consider as per the court direction but did not find it proper to give reservation in jobs to people with disabilities in State Administrative Services! Such an action or inaction of the State would never come under the meaning of "contempt of court"!

Road Ahead

The Chief Minister of Chhattisgarh Dr. Raman Singh, is a pro-development leader. The Prime Minister of India, Sh. Narendra Modi ji has been batting for the rights of persons with disabilities and has made his commitment public by ensuring that despite road blocks in the winter session, the Rights of Persons with Disabilities Act 2016 was passed by both houses of parliament & got assent of the President of India on 27th Dec 2016 to be eventually notified on 28th December 2016. Its the time to act swiftly and restore justice to the candidate in this session itself & providing enabling environment to promising candidate with disabilities so that the fabric of the state administrative services gets stronger & richer by contributions of this diversity.

We call upon the Hon'ble Chief Minister Sh. Raman Singh to act now and walk the talk - Sabka Saath Sabka Vikaas - by withdrawing the exemption notification & appointing the blind candidate on the post of Tehsildar forthwith.

Download Judgement Copy

• Judgement dated 02 Jan 2017 of the Chhattisgarh High Court in Writ Petition (S) No. 640 of 2014 titled Sanjay Sondhi Vs. State of Chhattisgarh and Ors
• Or read directly in the embedded order below:

Delhi University gets another rap from Delhi High Court - Fined for defying Section 39 of Disabilities Act 1995 [Judgement Included]

Dear colleagues,

Delhi University was caught on the wrong side of the law once again for defying the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995. The Hon'ble Delhi High Court in the instant case W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors., has directed the Delhi University to grant admission to the petitioner - a candidate with 77% disability, while declaring the admission criteria adopted by the University as "unsustainable".

In the instant case, the petitioner had sought a direction to the University to grant him admission under the PWD (Persons with disability) category in the Ph.D programme of Department of Buddhist Studies University of Delhi. The petitioner was one among the 47 students who had cleared the written examination and were called for the interview. He was the only student under the PWD category to have qualified for the same. Post interview, only twenty candidates were declared successful. However, arbitrarily no admission was granted under the PWD category. Aggrieved by the unreasonable & arbitrary denial of admission, the petitioner made representations before various authorities viz. the DU Vice-Chancellor, OSD (Admissions and Research Council) and also the Dean of the Faculty of Arts and Head of Department of Buddhist Studies, but it failed to yield any result.

The petitioner left with no option approached the High Court, alleging discrimination on the ground that other candidates who had secured similar marks in the interview were granted admission under other categories. He submitted that the University could not have frustrated the provisions of Section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandates all Government educational institutions and other educational institutions receiving aid from the Government to reserve not less than three per cent seats for persons with disabilities. He had further contended that the minimum cut off marks could not have been fixed after the selection process had begun, as was the situation in the case at hand. The question then to be considered by the Court was then whether the cut off marks of 70, as prescribed by the Selection Committee, was justified. Accepting the contentions put forth by the petitioner, it ruled that fixing of 70 marks as the cut off for the PWD category was “without any basis/logic.”

Noting that seats in the Ph.D course were still available, and that the selection process was still going on, the Hon'ble Judge directed the University to grant admission to the petitioner, and also awarded costs to the tune of Rs. 10,000. 

To read the Court Judgement dated 14 December 2016 click below:

W.P.(C) 8232/2016 titled Medhavi Krishna v. University of Delhi and Ors.

RPWD Bill 2016 & the Right to Reservation in Promotion for Employees with Disabilities

Dear Colleagues,

Please refer to my earlier post dated July 1, 2016 titled 'Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C and D alike'. Subsequently on 15th Dec 2016, the Hon'ble Supreme Court rejected the Review Petition filed by the DoPT against the judgement thereby making the its said judgement final.

Meanwhile, the Rights of Persons with Disabilities Bill 2016 has been passed by the Rajya Sabha (14 Dec 2016) and the Lok Sabha (16 Dec 2016) with over 119 amendment in the 2014 bill. Let me come straight to the concerned section dealing with the employment. I reproduce the concerned sections from 1995 Act and 2016 Bill below which clarifies things:

Extracts from PWD Act of 1995

32. Appropriate Governments shall--
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-
(i) Blindness or low vision;
(ii) Bearing impairment;
(iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: 
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.'

Extract from RPWD Bill 2016

'33. The appropriate Government shall—

(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

(iii) undertake periodic review of the identified posts at an interval not exceeding three years

34. (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including 35 deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.'

The problem areas

The interpretation of this section 33 of the Act of 1995 meant that reservation in promotion was available to employees with disabilities in all groups i.e. ABC& D as held by Hon’ble Supreme Court on 09 Oct 2013 in 'Union of India Vs. National Federation of Blind' wherein court directed Govt. of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts as was being done for Gp C & D earlier. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act 1995, provided for reservation in promotion for persons with disabilities in Groups A and B also. Again in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others court held that reservation in promotion has to be given in Gp A & B posts under section 33. 

Despite clear writing on the wall on the issue of reservation in promotion for persons with disabilities after the Supreme Court's clarification, the bill negates the judgement. It relegates the right to reservation in promotion to a provisio  where it is left to the appropriate governments to issue instructions from time to time! I would say this bill takes away reservation in promotion from the PwDs in a clandestine manner and leaves this to the mercy of the states who have never been serious about implementing the benevolent legislation.

A National Consultation on the RPWD Bill on 29-30 Dec 2016 in Delhi

The above is one example, there are host of others that we find are negating the rights of persons with disabilities and also these are not in conformity with the UNCRPD to which this Bill claims to align with. Lawyers, activists, persons with disabilities will put their mind to the Bill and analyse where its goes wrong and how can this be corrected to ensure that rights of persons with disabilities are not taken away under the garb of legislation. We invite you to this consultation that starts tomorrow. For more details please visit the page 'Invitation for National Consultation on RPWD Bill 2016 on 29-30 Dec 2016 at New Delhi'  

Will look forward to meeting and interacting with many of you tomorrow & day after.

Hyderabad HC Permits Blind Advocate To Take Judicial Service Exam pending his Writ Petition

Dear Colleagues,

Please refer to my earlier posts titled "Can a Blind /Visually Impaired Person work as a Judge / Magistrate ?"  dated 01 Jun 2009, "Want to become Judge? An ideal opportunity for VH law graduates in Delhi" dated 29 Oct 2009, "First Blind Judge in Korea shows how blind persons can function as Judge successfully" dt 14 May 2012 & "Blind can write exam to become Judge, rules Spain's General Council of Judiciary"  dt 21 Jul 2014.

This time, Mr. Arepalli Naga Babu, a visually-challenged IDIA scholar from Machilipatnam in Andhra Pradesh, has yet again strengthened the well-known belief that the only disability in life is lack of will and fortitude. Acting on his petition, the Hyderabad High Court has directed the authorities to accept his application and permit him to write the Judicial Service Exam to be held on 27th of November 2016, which he was denied earlier. 

The court also directed that he be allowed to take the examination in a separate room with the assistance of a scribe and be granted 20 minutes extra for every hour to compensate for the disability. A division bench comprising Chief Justice Ramesh Ranganathan and Justice A. Shankar Narayana affirmed that he cannot be denied participation in the selection process under the open category merely on account of his handicap (blindness) and stated that ‘there does not appear to be any prohibition in the Andhra Pradesh State Judicial Service Rules 2007 prohibiting visually-challenged candidates from participating in the selection process for appointment to the posts in the AP State Judicial Service’. 

Naga Babu, a law graduate from National Law University, Odisha, and a practising advocate of the high court, said the exam notification issued for the Andhra Pradesh and Telangana Judicial Services Exam confined the benefit of reservation only to the orthopedically handicapped and excluded the visually impaired persons. He stated that after he applied for the exam, he was informed that his application would be rejected as he was not entitled to write the exam and is neither eligible for reservation as per the rules.

Read more at: http://www.livelaw.in/hyderabad-hc-permits-visually-challenged-idia-scholar-naga-babu-take-judicial-service-exam/

Right to Dignity - a Consititutional Right of the Female Disabled Employee will Prevail over Employer's Right to Take Work, says Kerala HC [Judgement Included]

Dear Colleagues,

Here is a classic case where the Indian Railways has been wasting the exchequer's money in unnecessary legal battle against a female disabled employee who was seeking protection under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of  Rights & Full Participation) Act 1995 since the year 2002.

Brief history

 

While serving in the Railways, in the year 1998, Ms. Fancy Babu suffered transverse myelopathy (inflammation of spinal cord) at D4 level, which eventually resulted in complete paralysis confining her to bed. In 2002, she proposed to retire voluntarily and the Indian Railways accepted it. In 2009, having come to know of the beneficial provisions of benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, the employee approached the Central Administrative Tribunal, Ernakulam Branch seeking reinstatement and extension of benefits under the Act in OA/49/2009. The Tribunal, allowed the original application, setting aside the order or retirement and directed the employee’s reinstatement with effect from 15.02.2002. But Railways went against it before the High Court in  WP(C) No. 15871 of 2010 [click here to read the judgement dt 25 Aug 2014], wherein the said order was confirmed by the High Court by dismissing the appeal preferred by the Railways. 

Facts leading to instant case

 

However, in the year 2015, Ms. Fancy Babu had to again approach CAT  & file MA No. 180 of 2015 under Rule 24 of the CAT (Procedure) Rules 1987 complaining that the Tribunal’s order, as has been confirmed by this Court, has not been implemented by the Indian Railways.  Ms. Babu cited Kunal Singh v. Union of India (2003) 4 SCC 524 and Bhagwan Dass and another v. Punjab State Electricity Board (2008) 1 SCC 579 on protections available to employees under Section 47 of the Act.

The Tribunal, treating it as a special case, held that the employee need not report to office to receive her salary and it directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. 

The Indian Railways again preferred an appeal  OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu, before the Kerala High Court against this order of the Tribunal.  The contention put forth by the Indian Railways was that that since it is in trust of public money; it would be against the public interest to let a person draw salary without her discharging any function—without even attending the office. On the part of employee, it was urged that, where an employee has been totally incapacitated and has been rendered immobile, it is inequitable and unconscionable to compel the employee to attend office, much less discharge functions. 

Dismissing the challenge against the CAT order, the division bench comprising Justices PR Ramachandra Menon and Dama Seshadri Naidu, observed: “Given the modesty of women, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowel incontinence: her modesty exposed and privacy invaded.” 

Strongly worded judgement authored by Justice Dama Seshadri Naidu discusses judicial recognition of human dignity in various countries. The bench also observed that employer’s insistence that she should physically mark her attendance daily in office violates her privacy. “The doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity,” the court held. “The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse,” the bench said. 

 Dismissing the appeal and upholding the CAT order, the bench remarked: “Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.”

Click here to read the judgement  dated 03 Oct 2016 in OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu passed by the Kerala High Court.