Gujrat HC Judge, Advocate & Govt Pleader work in tandem to grant appointment to candidate with Cerebral Palsy [Judgement Included]

Dear Colleagues,

A single bench of Gujarat High Court has asked the State Govt. to appoint a man with cerebral palsy on the post of Supervisor Instructor Class III in the ITIs.  Quoting from the official video of the "सुगम्य भारत अभियान” i.e. "Accessible India Campaign" a campaign of the Department of Empowerment of persons with disabilities says, “हक़ है बराबरी का, गर्व से जियेंगे ! ” i.e. to say “We have right to equality and we have right to live with honour and dignity”, the court said,  "This is one such case where a person, since has been refused such a right to equality and to lead the life with dignity and with self empowerment, has approached this Court invoking powers under Articles 14, 16 and 226 of Constitution of India.

The petitioner Sudhanshu Upendrabhai Chavda, a person with cerebral palsy (spastic quadriplegia) came to be selected in the process of recruitment on his own merit for the post of Supervisor Inspector(Class III). However, in a meeting between the petitioner and the members of Selection Committee, it was realized that the petitioner was not able to speak and write properly. Therefore, he was not found eligible for the said post on the ground that the post of technical supervisor requires a person to speak clearly/properly and make the subject to be understand well by the trainees.

Petitioner argued that not granting appointment to the petitioner defeats the very objective of the Persons with Disabilities [Equal opportunities, Protection of Rights and Full Participation] Act, 1995 [“Disabilities Act” hereinafter]. It was urged that the court needed to once speak to the petitioner and also keep in mind the decision of the Apex Court rendered in case of Saiyed Bashir -ud-din Qadri Vs. Nazir Ahmed Shah and Ors. in SLP(C) Nos. 10669-70 of 2008 which according to the petitioner was also a story of a person who had a struggle to be self dependent.

The Court after meeting the petitioner in person, found a very favourable impression and on realising the fact that his mental faculty was not in any manner affected despite his condition of cerebral palsy with spastic quadriplegia, requested the learned Government Pleader to take up the matter with the highest authority after once having a personal talk with him. 

The Govt. pleader accordingly had personal interview with the petitoner and having been convinced thereafter she chose to write to the Principal Secretary, Labour and Employment Department pursuant to the suggestions of the Court. The govt. pleader wrote:

“Upon the direction issued by the Hon'ble Court in the presence of the officers, I have personally also spoken to the petitioner. It appears that on account of cerebral palsy he is suffering from only Locomotor Disability and any other work in the nature of date entry, assessment of papers, preparation of training material etc. may be given to him. In any case the Hon'ble Court has directed the undersigned to speak to the highest authority in the department to find a way out. These are people who have struggled all their lives to achieve degrees and qualification against all odds. They all need to be encouraged. They merely need a government job. Having over come his physical disability, he has attained a Master in Computer Application (M.C.A) degree. The Hon'ble Court has directed that the State ought to consider this and take a sympathetic approach towards him and appoint him on some post in an ITI Institute, which would not be involving communication or speech skills.”

Accordingly, the department agreed to appoint him pursuant to the above communication. The court however, ordered that the petitioner shall be given the appointment order as mentioned hereinabove. If not granted within the stipulated time period, the petitioner shall be at liberty to approach this Court.

Rarely we find such instances where Courts take such interest to support the cause of people with disabilities. We have seen how cases are heard & disposed off mechanically. This deserves mention that in this case, not only the candidate was able, highly educated and full of confidence but the advocate representing the petitioner, judge and the govt. pleader - all worked in tandem to grant the petitioner relief.  

Judgement

To read the PDF judgement dated 28.12.2016 in Special Civil Application No. 17799 of 2016 titled  Sudhanshu Upendrabhai Chavda Vs. State of Gujarat & Ors., click here. 

US Supreme Court ready to hear the land mark case on supporting Education for Disabled Students

Pls refer to my earlier post on  20 October 2016 titled 'US Supreme Court to hear ground breaking case involving what is "appropriate education" for students with Autism in public schools' . The Justices are hearing the arguments in the case wherein a school district refused to pay for private school for a student with autism whether federal law (IDEA) requires public schools to provide anything more than minimal instruction to such children.

A law dating from 1975, now called the Individuals with Disabilities Education Act, subsidizes special education but also requires school districts to provide a “free appropriate public education” to disabled students. Congress didn’t specify what it meant by appropriate, and when parents have challenged public school programs as inadequate—often because they want the district to pay for a private institution instead—appellate courts have disagreed over the quality of education the law mandates.

The Supreme Court agreed to resolve the issue in a case from Douglas County, Colo., where the school district rejected a parental request to pay $40,000 tuition to send an autistic child to a private school offering specialized programs.

Neal Katyal, an attorney for the school district, told the court as long as the public school program was better than nothing, courts had little role beyond reviewing whether local officials followed procedures that the law, known as the IDEA Act, lays out for a disabled student’s educational plan.

“That’s what Congress had in mind, the idea that you’ve got to go through the checklist,” Mr. Katyal said.

“That’s wrong,” said Justice Elena Kagan. “This is not just a procedural guarantee. Yes, the IDEA has lots of procedures in it, but they’re all geared towards a particular substantive result.”

The justices likewise felt Jeffrey Fisher, a Stanford law professor representing the child, identified as Endrew F. in court papers, pushed too far in contending the law mandated that disabled students receive “equal educational opportunity” with other students.

Such a high standard could invite numerous claims forcing courts to evaluate whether a plan for a disabled child was legally equal to the opportunities provided other students, said Justice Stephen Breyer. “I foresee taking the money that ought to go to the children and spending it on lawsuits and lawyers and all kinds of things that are extraneous. That is what’s actually bothering me,” he said.

Much of the argument concerned the meaning of a 1982 Supreme Court precedent upholding a school district’s refusal to provide a sign-language interpreter for a deaf student because she was progressing well using a hearing aid. In that case, Board of Education v. Rowley, the court cited a congressional purpose “to confer some educational benefit upon the handicapped child.”

Responding to Mr. Katyal, Chief Justice John Roberts summarized the disagreement this way:

“You’re reading it as saying ‘SOME benefit,’ and the other side is reading it as saying ‘some BENEFIT,’” the chief justice said, prompting laughter across the courtroom.

The Obama administration has proposed a compromise position, and by the argument’s end it appeared likely to prevail.

The law should be read to require “significant progress towards grade-level standards, not as close as possible to grade-level standards,” Justice Department lawyer Irv Gornstein told the court. “And we think that this is just what most school boards are already doing.”

Justice Samuel Alito asked whether school officials could consider costs in determining an appropriate program.

Probably not, said Mr. Gornstein, who noted that the federal government provides about 15% of special-education costs.

“I think Congress took costs off the table in the usual case,” Mr. Gornstein said, except in extreme cases where extraordinary costs would yield little benefit to the student.

A decision in the case, Endrew F. v. Douglas County School District, is expected before July.

Source: The Wall Street Journal