Wednesday, March 8, 2017

Colour Blind is a disability for admission to FTII, if not for Disability Act : Bombay HC

The Bombay high court on Tuesday upheld the decision of Film and Television Institute of India (FTII) not to grant a colour blind candidate admission to the film editing course.

A bench of Justice Shantanu Kemkar and Justice Prakash Naik gave their verdict on a petition by Patna based Ashutosh Kumar who was short listed for the post graduate diploma course in film editing. During medical examination he was found to be colour blind and his admission was declined in view of FTII Rules which state that colour blind candidates are not entitled to get admission in various courses including film editing.

Kumar's advocate Kartikeya Bahadur argued that colour blindness is neither a blindness with the meaning of Persons with Disabilities Act and as such the denial on the  basis of colour blindness is illegal. The judges took note that FTII has set up an admission committee of experts from various fields to review the admission criteria.

The bench said when an expert body has fixed eligibility criteria and carved out six courses in which colour blind candidates are not found suitable, the action of  FTII denying admission cannot be said to be illegal or arbitrary. "Keeping in mind the aforesaid, we are of the view that the petitioner being a candidate suffering

from disability of colour blindness, he cannot claim admission in the course in question, in which according to FTII Rules framed by expert body, he cannot be allowed,'' it added. The judges also noted that in the absence of any mala fide or arbitrariness alleged by Kumar against FTII there is no need for the court to  interfere.

Source: Times of India

Thursday, January 26, 2017

SC says Reservations & Relaxations for disabled - a matter of Govt. Policy; Rejects Delhi & Madras HC view on number of attempts at CSE [Judgement Included]

Dear Colleagues,

While hearing Civil Appeal No. 858 of 2017 (Arising out of SLP (C) No. 21587 of 2013), titled Union of India & Ors Vs. M. Selvakumar & Anr., a bench of Hon'ble Supreme Court comprising  Sh. Justice Ranjan Gogoi and Sh. Justice Ashok Bhushan, in its judgement dated 24 January 2017 has observed, "It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether the better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of the Article 14 (right to equality) of the Constitution."

The bench headed by Ranjan Gogoi set aside the judgement of the Madras High Court and the view taken by Delhi High Court that "increasing the number of attempts for Physically Handicapped candidates belonging to General Category from 4 to 7 with effect from the 2007 Examination and not proportionally increasing the number of attempts for Physically Handicapped candidates belonging to OBC Category from 7 to 10, is discriminatory and arbitrary".

Judgement

To read the judgement in Civil Appeal No. 858 of 2017 titled Union of India & Ors Vs. M. Selvakumar & Anr  in portable document format (PDF) click here, and in Notepad format click here.

Background

It is pertinent to note that the Madras High Court in its order passed on 24.01.2012 in Writ Petition (C) No. 18705 of 2010 titled M. Selvakumar versus Central Administrative Tribunal and Others had discussed in detail clause-3 (iv) of the Notification for CSE 2008 and specifically discussed the provision which states that physically handicapped will get as many attempts as are available to other non-physically handicapped candidates of his or her community, subject to the condition that physically handicapped candidates belonging to the general category shall be eligible for 07 attempts. The High Court had further observed that the number of attempts for the physically handicapped persons in the general category has been increased from four to seven. However, the same benefit has not been proportionally extended to the PH candidates in the OBC community. Considering this to be inconsistent with Articles 14 and 16 of the Constitution of India the petitioner M Selvakumar was given relaxation in the number of attempts as had been granted to the PH candidates belonging to general category. However, there were no specific direction of the Madras High Court to quash clause-3 of the notification nor there was any direction to the respondents to make necessary changes in the Rules for future examinations.

The SC bench said "the horizontal reservation and relaxation for Physically Handicapped Category candidates for Civil Services Examination, is a matter of Governmental policy and the Government after considering the relevant materials have extended relaxation and concessions to the Physically Handicapped candidates belonging to the Reserved Category as well as General Category.

The verdict came on appeal filed by the Union of India challenging two judgements of the high courts which allowed Physically Handicapped students of OBC to avail 10 attempts instead of 7 attempts in the Civil Services Examination.

Both the High Court's had held that since the attempts for Physically Handicapped candidates belonging to General Category have been increased from 4 to 7 with effect from 2007 Civil Services Examination, there should be proportionate increase in attempts to be taken by Physically Handicapped Candidates belonging to the OBC Category. 

The apex court said when the attempts for exams of Physically Handicapped candidates of OBC Category as well as those of in General Category are made equal, there is no question of discrimination as the candidate belonging to OBC Category has already been given ten years relaxation in age which give them a relaxation of three more years.

"The present case is not a case of treating unequals as equal. It is a case of extending concessions and relaxations to the physically handicapped candidates belonging to general category as well as physically handicapped belonging to OBC category. Physically handicapped category is a category in itself, a person who is physically handicapped, be it physically handicapped of a general category or OBC category, suffering from similar disability has to be treated alike in extending the relaxation and concessions," noted the bench in its judgment.

Both being provided 7 attempts to appear in Civil Services Examination, no discrimination or arbitrariness can be found in the above scenario", the bench concluded.


Bombay HC passes directions to Railways on facilities for disabled; seeks compliance report by 02 May 2017

Dear colleagues,

The Bombay High Court while hearing Writ Petition (Civil) 1684 of 2016 titled Nitin Arjun Gaikwad  Vs. The Union Of India And Ors, on Wednesday, the 25th January 2017, has passed directions to the Railways to :
  • provide facilities to disabled passengers travelling in local trains 
  • CCTV cameras inside reserved compartments
  • special seating arrangements in the platform for the disabled
  • and a a helpline facility for disabled passengers.
The division bench of Shri Justice A S Oka  and Smt. Justice Anuja Prabhudessai also directed the Director General of the Police to issue a circular to police stations in the state to take disciplinary action against police personnel who travel illegally in coaches meant for the disabled.

“The railways must appoint special officers to look into grievances of disabled passengers and also to ensure there is no unauthorised entry and travel by general public or police personnel in these reserved compartments. Despite several complaints made about this unauthorised travel, no action has been taken and neither measures to stop this. It is very shocking that the police themselves are violating the law." the Court observed.

The petitioner, Mr. Nitin Arjun Gaikwad who himself is a person with disability had filed a petition stating unauthorised commute by railway and police officials in the reserved compartments and about various facilities and measures promised to the disabled in platforms and trains which have not been implemented yet, despite orders passed by the Commissioner for Persons with Disabilities (CPD) which had directed the railways to implement these measures.

The court, while taking a note of the order by the State Commissioner for Persons with Disabilities appointed under the Disability Act of 1995 said, “Apart from CCTVs and seating arrangements for the disabled, a helpline should be activated so that passengers can immediately whatsapp or SMS about unauthorised commute and the railways and the police should appropriately respond and take action immediately.” The court also said that a special drive with extra police personnel should be carried out at various railway stations to create awareness on reserved coaches to ensure nobody travels illegally in coaches meant for the disabled.

The court has directed the railways, the Director General of Police (DGP) and the State Home Department of Maharashtra to submit a Compliance report affidavit regarding the steps taken, on May 2, 2017.

The matter was deferred on 18th Jan 2017 for 25th Jan 2017 for directions at the orders of the Court. 

Saturday, January 21, 2017

Delhi Commission for Women issues notice to DoPT for denying IRAS to Women with Disability

Dear Colleagues,

The Delhi Commission for Women (DCW) has on 17 Jan 2016 issued a notice to Department of Personnel and Training (DoPT), Central government, in connection with a complaint filed by a blind woman alleging cancellation of appointment in Indian Railways Accounts Service (IRAS) by the railway ministry due to her disability.

The commission has sought -- within a week -- the factual report of the woman's candidature, reasons for rejection of IRAS service initially allocated to her and the proposed action plan of the DoPT to resolve the issue and compensate.

The woman, who qualified the civil services examination in 2015, has alleged that she was initially allotted a job in IRAS. However, her appointment was cancelled because of her disability and later when she followed it up with DoPT, she was reallocated a job in Postal and Telecommunication, Accounts and Finance Service, the woman alleged.

"While she was allocated the IRAS service as per her rank in CSE-2015, she has now been allocated a job which is in contravention of her rank, merit and preference of service," said the notice issued by DCW chief Swati Maliwal to DoPT secretary BP Sharma.

"It is evident that the lady has already undergone a great deal of struggle and after painstaking efforts has cleared the civil services examination. Crucial time of training and foundation course has been wasted due to systemic delays. Therefore, it is necessary that immediate action is taken to rectify the same," the notice further read.

In her representation to Maliwal, the complainant has said that at present she is pursuing PhD from Jawaharlal Nehru University. "Born with a weak eyesight, I became completely blind at the age of 6. Surgeries were done but my retina could not be reattached. However, without wasting much time, I started learning Braille and continued with my studies. For this, I had to leave the comfort of home and stayed at a hostel for blind," she said in her representation to DCW.


Wednesday, January 18, 2017

UK Supreme Court rules in favour of Wheelchair than Buggy in public buses

Dear Colleagues,

You would remember this unique case of a wheelchair user Mr. Doug Paulley who approached the court after he was told he could not get on a bus to Leeds in 2012 when a mother with a pushchair refused to move. Mr. Paulley had argued that operator FirstGroup's "requesting, not requiring" policy was discriminatory. 

Brief of the Case

The appeal concerns the lawfulness of a bus company’s policy in relation to the use of the space provided for wheelchair users on its buses. Mr Paulley is a wheelchair user who attempted to board a bus operated by a subsidiary of FirstGroup PLC on 24th February 2012. 

The bus had a space marked by a wheelchair sign and a notice saying, “Please give up this space for a wheelchair user” (“the Notice”). At the time Mr Paulley attempted to board, a woman with a sleeping child in a pushchair occupied this space. She was asked by the driver to fold down the chair and move; however, she refused, stating that it did not fold down. Mr Paulley had to wait for the next bus as a result. 

Mr Paulley issued proceedings against FirstGroup for unlawful discrimination on the ground of his disability, claiming that FirstGroup had failed to make “reasonable adjustments” to its policies contrary to section 29(2) of the Equality Act 2010. The Recorder found that FirstGroup operated a “provision criterion or practice” (“PCP”) consisting of a “policy… of ‘first come first served’… whereby a non-wheelchair user occupying the space on the bus would be requested to move, but if the request was refused nothing more would be done.” This placed Mr Paulley and other wheelchair users at a substantial disadvantage by comparison with non-disabled passengers. 

There were reasonable adjustments that FirstGroup could have made to eliminate the disadvantage: 
(i) altering the Notice positively to require non-disabled passengers occupying a space to move if a wheelchair user needed it; and 
(ii) adopting an enforcement policy requiring non-disabled passengers to leave the bus if they failed to comply. 

The Recorder found in favour of Mr Paulley and awarded him £5,500 damages. However, FirstGroup went in appeal before the  Court of Appeal which unanimously allowed the appeal and held that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than requested, non-wheelchair users to vacate a space when it was needed by a person in a wheelchair, and then to positively enforce that requirement with the ultimate sanction being removal from the bus. 

Mr. Paulley, went in appeal to UK Supreme Court against the impugned order.

Judgement of Supreme Court

To read the judgement dated 18 Jan 2017 of  The Supreme Court of the United Kingdom in FirstGroup Plc (Respondent) v Paulley (Appellant) [2017] UKSC 4, click here.

The Supreme Court unanimously allowed Mr Paulley’s appeal, albeit only to a limited extent. Lord Neuberger gave the lead judgment (with which Lord Reed agreed) allowing the appeal but only to the extent that FirstGroup’s policy requiring a driver to simply request a non-wheelchair user to vacate the space without taking any further steps was unjustified. 

Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurize the non-wheelchair user to vacate the space, depending on the circumstances. Lord Toulson and Lord Sumption write concurring judgments. On the issue of the order to be made, this majority declines to uphold an award of damages. Lady Hale, Lord Kerr and Lord Clarke also allow the appeal but they would have restored the order of the Recorder in full, including upholding the award of damages. 

Reasons for the Decision 
[References in square brackets are to paragraphs in the judgment]

Under section 29 of the 2010 Act, as a “public service provider”, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make “reasonable adjustments” to avoid substantial disadvantage to disabled persons [20-26]. 

The Recorder’s judgment effectively required a policy that could lead to a non-wheelchair user being ordered off the bus [40-45]. The Court of Appeal was right to reject this. An absolute rule that any non-wheelchair user must vacate the space would be unreasonable: there are many circumstances in which it could be unreasonable to expect a non-wheelchair user to vacate a space, and even more, to get off the bus, even where the space is needed by a wheelchair user [46-48]. 

Even a qualified rule (i.e. that any non-wheelchair user must vacate if it is reasonable) implemented through mandatory enforcement would be likely to lead to confrontation with other passengers (not least where the non-wheelchair user vacating the space affected other travellers) and delay [50-51]. Passengers are not clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and would not appear to be under such an obligation to get off the bus if they fail to do so [52]. 

Even though the hearing in the Court of Appeal had proceeded on the basis that it was not part of Mr Paulley’s case [59], the argument that FirstGroup’s PCP should have gone further than it did, albeit not as far as the Recorder concluded, has more force. FirstGroup cannot be criticised for choosing not to express the Notice in more forceful terms: it was aimed at politely requiring non-wheelchair users to vacate the space; there was evidence that “directive” notices are a less effective means of communication with the public; and the use of specially emphatic language should not determine legal liability in this case [63]. 

The suggestion that the Notice should state that priority of wheelchair users “would be enforced” would be false [64]. However, it was not enough for FirstGroup to instruct its drivers simply to request non-wheelchair users to vacate the space and do nothing further if the request was rejected. The approach of the driver must depend upon the circumstances, but where he or she concludes that the refusal is unreasonable, some further step to pressurise the non-wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non-wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several minutes [67]. 

Lord Toulson agrees [83-85] adding that fresh legislative consideration is desirable [87]. Lord Sumption also agrees albeit with reservations [92]. So far as damages are concerned, Lord Neuberger (with whom Lords Sumption, Reed and Toulson agree) concludes that the Recorder did not specifically consider whether, if FirstGroup had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It is therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages is not possible [60-61]. Lady Hale, Lord Kerr and Lord Clarke dissent in part. 

As the Recorder found, it was reasonable to expect bus operators to do more than FirstGroup did [102-109]. His judgment did not necessarily require ejection of a passenger who refused to move from the bus nor did it create an absolute rule [106]; [129-131]; [137]. Had the practice suggested by the claimant been in force, there was at least a real prospect that Mr Paulley would likely have been able to travel [108]; [138]. This being so, it was unjust to deny Mr Paulley damages [109]; [160]. 

[References in square brackets are to paragraphs in the judgment]








Tuesday, January 17, 2017

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

Friday, January 13, 2017

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.


Sunday, January 8, 2017

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:


Wednesday, January 4, 2017

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:


Wednesday, December 28, 2016

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 with 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.