Kerala HC orders the Govt. of Kerala & Aided schools to fill up backlog of 3% reservation since 07 Feb 1996 under PWD Act 1995 & 4% reservation since 19.04.2017 under RPWD Act 2016

Dear colleagues,

The Kerala High Court (Ernakulam Bench)  has come heavily against the aided Schools in Kerala and Govt. schools for not implementing the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act 1995 and the Rights of Persons with Disabilities Act 2016 and not appointing persons with disabilities on the teaching and non -teaching posts.  Several cases were tagged together with a common grievance against the Govt. of Kerala. The court impleaded a total of 106 additional respondents in the lead case while the original petition only had three respondents namely the State of Kerala (rep by Secretary to General Education), the Director of General Education and the State of Kerala (rep. by Secretary Social Justice Deptt). 

The petitoner in the lead case was Mr. K.J. Varghese, the President of  Kerala Federation of the Blind, representing five blind persons who contended that they have acquired all the requisite qualifications to seek appointment to the post of Upper Primary School Teacher, High School Teacher, and also for non-teaching posts in Aided Schools in the State.

The court presided by Mr. Justice Raja Vijayaraghavan V.  in the judgement passed on 10 Aug 2022, held and declared that the Managers of Aided Schools are bound by G.O.(P) No.18/2018/SJD dated 18.11.2018, and they shall provide 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from 07.02.1996 and to fill the backlog from 07.02.1996 to 18.04.2017; and 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided schools with effect from 19.04.2017 in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the orders referred to therein.

It also quashed G.O.(P) No.19/2021/G.Edn. dated 08.11.2021 (Ext.P5 in W.P.(C) No.19808/2021) and Order dated 07.12.2021 vide No. H(2)/295299/2021/D.G.E. issued by the Additional Director General (Ext.P6 in W.P.(C) No.19808/2021) to the extent that it fixes a cut off date and directs that only vacancies in Aided schools which arise after 08.11.2021 shall be filled up in terms of the 1995 Act/2016 Act. 

The High Court bench ordered that in terms of G.O.(M.S) No.111/2022/G.Edn. dated 25.06.2022 but without the cutoff date fixed as 08.11.2021, backlog vacancies from 07.04.1996 shall be calculated and the roster shall be prepared within a period of two months from today tabulating the first in 33 vacancies from 07.02.1996 and the first in 25 vacancies from 19.04.2017 onwards for absorbing differently abled in the process of recruitment in Aided Schools in respect of vacancies that have arisen after the date of issuance of G.O.(P) No.18/2018/SJD dated 18.11.2018 as upheld by this Court in Renjith (supra) and in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the previous orders referred to therein.

The Court also ordered that the appointments already made by the management after the date of issuance G.O.(P) No.18/2018/SJD dated 18.11.2018 in respect of which approval has not been granted by the educational authorities to date shall be subject to the directions above. Only after filling the backlogs as directed above, shall approval be granted in respect of those appointments. Approval of appointments already granted shall not be unsettled.

This case sets a clear road map for implementation of job reservations from 07 Feb 1996 as per the mandate of the1995 Act as a backlog and that the State couldn't decide when it wants to implement the law of its own whims and fancies by providing new cutt of dates. 

Below is the link to the Judgement dated 10 Aug 2022 by the High Court of Kerala at Ernakulam :  

W.P.(C) No.19808/2021 & connected cases titled  K.J. Varghese Vs. Govt. of Kerala & 108 Others [PDF 901 KB]

Madras HC | WP No. 23154 of 2015 | D Ramkumar Vs. Pondicherry Society for Higher Education and Others | 08 Aug 2022

 Court: High Court of Madras

Bench: MR. JUSTICE M.S. RAMESH

Case No. & Title: W.P.No.23154 of 2015, D Ramkumar Vs. Pondicherry Society for Higher Education and Others.

Date of Judgement: 08 Aug 2022

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Brief Facts:

The petitioner, a 100% blind Associate Professor/HOD of English was transferred to another college citing that it was women college and all male teachers need to be shifted to other colleges, while many male teacherss continued to work and only the petitioner was transferred with malafile objectives. This was challenged by the petititioner. Single bench rejected his case but the in the appeal before the  Division Bench of this Court, the bench clearly held that the order of transfer was discriminatory and arbitrary, which has to be regarded as illegal. And thus the petitioner returned to his colleges. The college however, refused to pay salary and other monetary benefits for the period and rejected on the ground of "no work no pay" and that the Bench had specifically not directed to pay the wages.

The petitioner again had to take up the matter. The bench held, the claim for the monetary benefits including the salary after the transfer order, cannot be rejected on the ground of 'no work, no pay.  The court further held that  when the order of transfer of the petitioner was set aside by this Court, the consequential service and monetary benefits arising therefrom between 26.11.2013 and 29.06.2014 would automatically become a part of such an order and no specific directions need be given for payment of such benefits. If that be so, the petitioner herein need not specifically plead for the relief of consequential service and monetary benefits, in the earlier round of litigations. Incidentally, since the Hon'ble Division Bench had not denied these benefits to the petitioner, it ought to be held that he would be entitled for all these benefits. 

The court passed direction to the first respondent to forthwith regularise the period between 25.11.2013 and 29.06.2014, as duty period for all purposes and extend all the service and monetary benefits arising thereto, within a period of four (4) weeks from the date of receipt of a copy of this order.

Read the judgement embeddded below:

Madras HC | PIL titled Rajiv Rajan Vs. The MTC(C)L & Ors on implementation of PWD Act 1995

Bench:  M.M.SUNDRESH, J. and R.HEMALATHA,J.

Case No. WP No. 38224 of 2005

Case Title: Rajiv Rajan  Vs Chairman and Managing Director, Metropolitan Transport Corpn (Chennai) Ltd. and 3 others.

Sub: PIL for Accessible and Disabled friendly  Public Infratructure, Railways Stations, Buses, Bus Shelters, Publlic Toilets, Metro Rail etc.  

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Rajiv Rajan                                                         .. Petitioner 

vs 

1.The Chairman and Managing Director Metropolitan Transport Corporation (Chennai) Ltd., An Undertaking of the Government of Tamil Nadu Pallavan House, Anna Salai, Chennai 600 002 

2.The Commissioner Corporation of Chennai, Ripon Building, Chennai 600 003 

3.The State Co-ordination Committee, Rep. By Chairperson Secretary, Department of Social Welfare Government of Tamil Nadu Fort St. George, Chennai 600 009 

4.The Commissioner for Persons with Disabilities, 15/1, Model School Road Thousand Lights, Chennai 600 006                                                 .. Respondents

Brief:

This Writ petition was filed by our colleague Mr. Rajiv Rajan, under Article 226 of the Constitution of India praying for issuance of a writ of mandamus directing the respondents more particularly respondents 1 and 2 to implement “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” in its spirit by providing user friendly transport, access and barrier free environment in the public places giving access to the usage of transport system.

The court passed comprehensive order on 02.03.2006 and thereafter the matter has been kept live for follow ups. 

On 10-9-2014, the bench of  Mr. Sanjay Kishan Kaul, The Chief Justice and Mr. Justie M. Sathyanarayanan disposed off the matter in terms of order already passed on 2.3.2006. However, the bench directed the Governemnt to file compliance report every month setting out what action they have taken under Sections 44 to 46 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, separately in that 3 month to comply with the directions. The matter was thus to be listed every month for compliance.

On 06.04 2016 the Learned Amicus suggested that for the time being, the issue which we are required to address is the lack of improvement by Metro Transport Corporation (MTC) and State Express Transport Corporation (SETC) in introducing buses which are disabled friendly. On the other hand, learned counsel appearing for the MTC and SETC submited that though initially there was some restraint in respect of procuring buses, it had been observed that there may be some buses procured dedicated for the use of persons with special needs, but the passengers found travelling in such buses were few. 

The bench however was of the view that any steps to be taken for the benefit of the persons with special needs has to be inclusive in character. The idea cannot be to have separate buses, but buses which are used daily by passengers meeting the requirement of Persons with special needs. It is not possible to predetermine the route to be travelled, the destination to be reached etc., by introducing buses only for certain routes which are disabled friendly. The objective has to be, over a period of time, to make sure all the buses in use meet the requirement of people with special needs. This can only happen if procurement of such buses which are meant to cater to the people with special needs, as otherwise what has happened would continue to happen – introducing of new buses in the fleets which still do not meet the requirement of the people with special needs. 

The court thus directed that any new buses to be introduced in the fleets must meet the requirement of the people with special needs and as per the norms in consultation with the Commissioner for Persons with Disabilities. In determining whether a bus is disabled friendly, inter alia, it has to be ensured that there is easy access for boarding and alighting.

On 28.06.2016, The court expressed, "the necessity of new buses meeting the requirement of persons with special needs as per norm and consultation with the Commission for Persons with Disabilities cannot be doubted. However, what is sought to be projected is that in some of the routes, a bus shelter may not be conducive to the ingress and egress for such buses. If that be the position, the first respondent, can always address the Commissioner, Municipal Corporation of Chennai/2nd respondent which would be mandated to make the necessary adjustments. It has also been stated that a policy decision would have to be taken by the Government, as the first respondent has no funds even to buy buses. In this behalf, all that we can say is that at some stage, the State Government would have to take a call as to how the first respondent is to be managed financially, if it wants the Corporation to continue. There can be buses already on the way out as per norms and we are conscious of the fact that it may be difficult to convert the existing buses and therefore our direction is for buses procured in future to comply with the requirements, so that over a period of time, all buses will become compliant.

on 05.07.2022, the bench directed that a copy of the compliance reports filed in W.P.No. 923 of 2007 shall be kept in this writ petition for reference. And on next date of hearing i.e. 02.08.2022, the Bench of Chief Justice and Justice N. Mala, ordered the matter to be closed based on compliance reports being filed by the Govt. 

Court of CCPD directs Kerala Gramin Bank to give promotion to a candidate with blindnesss on equal basis with others.

 Court:         Chief Commissioner for Persons with Disabilities, India

Case No.     13186/1021/2021

Case Title:   Sukulal Vs. Chairman, Kerala Gramin Bank 

Date of Order: 04 August 2022

Subject:    Discrimination in promotion on the basis of disability to a blind candidate, Relaxation of Standards, Reasonable Accommmodation

Read the order embedded below:

Triputa HC: Employer's Failure To Meet Needs Of Disabled Persons Breaches Norms of "Reasonable Accommodation" [Judgement included]

Court: Tripura High Court, Agartala, India

Bench/Judge: Hon'ble Mr. Justice Arindam Lodh

Case Title:   WP(C) 694 of 2020 | Sri Bijoy Kumar Hrangkhawl v. Tripura State Electricity Corporation Limited (TSECL) and Ors.

Date of Judgement:  01 Aug 2022

Cases Referred/quoted : Vikash Kumar Vrs. Union Pulbic Service Commission & Ors., (2021) 5 SCC 370. 

The case in brief

The petitioner was an employee of Tripura State Electricity Corporation Limited. During the course of performing his duties, he met with an accident which rendered him disabled. He was not paid salary by the Corporation because he could not perform the duties he owed to the Corporation as their employee, though he was willing to join and perform duties which would be commensurate with his disability.

The Tripura High Court observed that employers must "reasonably accommodate" persons with disabiliteis into service and that failure to do so violates their rights under  The Rights of Persons with Disabilities Act, 2016.

The Court also refered to Secction 47 of the Persons with Disabilties  Act 1995 (now repealed) and a DoPT Memorandum dated 25 Feb 2015 on subject "Amendment to Central Civil Service (Leave) Rules, 1972 - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995)- regarding" and  expressed that the aforesaid memorandum dated 25th February, 2015 was further reviewed in the year 2016 where the rights of persons with disabilities were not in any way diluted rather expanded the rights of such persons. It mandates that the State-employer must create conditions in which the barriers posed by disability can be overcome.

It is pertinent to note that the protections available under Secction 47 of the PWD Act 1995 have been contined in Section 20(4) of the RPWD Act 2016 as below:

"20. Non-discrimination in employment. - (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section.

(2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability.

(3) No promotion shall be denied to a person merely on the ground of disability.

(4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service:

Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(5) The appropriate Government may frame policies for posting and transfer of employees with disabilities."

The single bench presided by Mr. Justice Arindam Lodh in his order remarked,  "The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve. Keeping in mind the objectives of Rights of Persons with Disabilities Act, 2016, the respondents should realize the challenge the petitioner has been facing and accommodate him with humane approach. Any failure to meet the needs of disabled person will definitely breach the norms of reasonable accommodation."

It is the case of the petitioner that while the petitioner was discharging his duties he suffered an accident and out of that accident, he became disabled. Due to such disability, he could not attend his duties. It is the contention of the respondents that the salary of the petitioner was duly paid upto 16.03.2020. Thereafter, no salary was paid to the petitioner though he was all along willing to join to perform his duties commensurate to his disability. From the report of the Standing Medical Board, it is clear that the petitioner was not in a position to perform his official and field level activities which may work out throughout the State. In spite of that report, the petitioner was not paid his due salary and other allowances treating his absence from duty as unauthorized.

Court noted that a plea has been taken that the respondents did not accept his joining report or leave application as he did not report to the joining authority in person. He expressed his willingness to join his duties by submitting an application to the authority concerned. But it was refused on the pretext that the petitioner was not physically appeared before the concerned authority which is not at all expected. The conduct of the concerned officer is not in consonance with the object the legislatures wanted to achieve.

Keeping in view the above objective, the court directed the respondents to "reasonably accommodate" the petitioner and passed the folloiwng order:

"(i) the respondents are to pay all the cumulative dues such as salary, allowances, etc. which were payable to the petitioner under his service conditions within a period of three month from today;

(ii) the salary and allowances payable to the petitioner shall be released from this month and regularize his service conditions by way of recalling all the earlier orders passed by TSECL treating his absence from duty as unauthorized absence. Those unauthorized absence period, according to the TSECL, shall be regularized and that would not have any bearing to the service of the petitioner;

 

(iii) if it is found that the petitioner is eligible to perform his duty, then, he may be permitted to undertake such duties. Further, if the petitioner is found to be unfit to perform the nature of duties, which he was performing before being disabled, then, he should be assigned/adjusted with such suitable duties which he would be able to discharge;

(iv) if the petitioner is found incapable of performing any kind of duties, then, the respondents are under obligation and shall pay all service benefits including the promotion to the petitioner by creating a supernumerary post until a suitable post is available or he attains the age of superannuation;

(v) the respondents shall utilize capacity of the petitioner by providing and environment around him and ensure reasonable accommodation by way of making appropriate modifications and adjustments in the spirit of the discussions and observations made here-inabove;

(vi) the petitioner shall appear before the constituted Medical Board of the State Government within 7 (seven) days from today. The Medical Board shall examine and issue necessary certificate mentioning the extent of his disability in consonance with the RPwD Act; and

(vii) it is not advisable to send the petitioner to the Medical Board time and again."

What is missed in this judgement.

The judgement though extends relief to the petitioner, it  adopts some very poor legal reasoning for the relief provided.

Firstly, the judgement fails to appropriately explain the “reasonable accommodation” & its relation to the employment rules. In fact there was no reference needed to be made with reasonable accommodation since the law is clear on the protections available under the Act to a person acquirng disability while in service. It ensures that such a person will not be discriminated against merely because of the disabilty acquired and his job, post and related benefits would be protected even when the person is unable to perform any functions. 

Secondly, it presents that the barriers faced by disabled persons arise from their medical condition of disability, rather than the disabling environment around them which mmay be inform of inaccessible built environment, discriminatory employment policies and practices.

Thus the thought processs and the reasoning given in the judgemement doesn't gel with the overal scheme of the RPWD Act and jurisprudence developed through various case laws since 1996.

 

Read the judgement embedded below:

DHC constitutes High Powered Committee to recommend Solutions for ensuring Access to Financial Services for people with vision impairments [Court Order included]

Dear Colleagues,

A division bench comprising of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, while hearing a petition filed by Mr. George Abraham, a petitioner with vision impairment on the difficulties being faced by visually challenged persons in accessing financial services and general non-compliance of the provisons of Rights of Persons with Disabilities Act 2016, has constituted a seven membeer High Powered Committee of experts to recommend solutions. 

The bench was hearing several public interest petitions which were clubed with the lead case by Mr. George Abraham. Other petitioners included All India Confederation of the Blind, Blind Graduate Forum of India and Rohit Dandriyal & others. 

The High Powered Committee shall be chaired by Prof. M Balakrishnan, Department of Computer Science and Engineering, IIT Delhi. The order said, "High Powered Committee is constituted by this Court to look into all the grievances raised in the present application and the connected writ petitions to offer practical solutions in the matter. It is needless to state that the scope of the work of the Committee will not be confined only to the issues raised in the present writ petitions but other ancillary issues as well." 

As per the Court order dated 29 July 2022, the High Powered Committee shall consist of the following persons:- 

i. Prof. M. Balakrishnan, Professor, Department of Computer Science and Engineering, IIT Delhi. (Chairman of the committee)

ii. Prof. Kolin Paul, Professor, Department of Computer Science and Engineering, IIT Delhi. 

iii. Ms. Manisha Mishra, (GM), Department of Regulation. RBI

iv. Mr. Tushar Bhattacharya, (DGM) Department of Supervision. RBI 

v. Mr. George Abraham, the Petitioner in W.P.(C) 694/2020. 

vi. Mr. Amar Jain, Member of Blind Graduates Forum of India i.e. the Petitioner in W.P.(C) 64/2019. 

vii. Officer to be nominated by the Union of India. 

The court also requested the Director, IIT Delhi  to provide all logistic support to the Committee constituted under the Chairmanship of Prof. M Balakrishnan.

The petitioner Mr. George Abraham had prayed before the Court seeking directions/ appropriate writs:

1. to ensure that all the banks comply with the Master Circular DBR No. Leg. BC. 21 / 09.07.006 / 2015-16, dated July 1, 2015 issued by/  Respondent No.3;
2. to ensure that card reading devices for making card payments (Point-of-Sale Machines) are accessible for visually challenged persons;
3. to ensure that all bank websites and mobile phone applications for financial services are tested for accessibility at every stage of transaction;
4. to make it mandatory that all net banking facilities and mobile phone applications comply with W3C guidelines which are recognized by the Government of India;
5. to make it mandatory that all digital mobile wallet applications are accessible and user-friendly for visually challenged persons;
6. to ensure all ATM machines are voice-enabled and accessible for visually challenged persons;
7. to ensure that all software and hardware products procured by banks to be disabled-friendly;
8. for implementation of Section 13 of the Rights of Persons with Disability Act, 2016 with regard to visually challenged persons having control over their financial affairs;
9. to ensure that employees and customer care service providers of all banks and financial services are trained and sensitized towards the needs and requirements of visually challenged customers;

"This Court is pained to observe at this juncture that it is unfortunate that judicial intervention is required in such matters when measures to ensure ease of accessibility for the specially-abled should be implemented in a proactive manner. However, this Court hopes that the Committee will take these observations into consideration while arriving at a feasible solution," the Bench said.

The Court has granted three months to the committee for filing status report in the matter.  The matter will now be heard on November 25, 2022.

Here is the Court order in the case W.P.(C) 694/2020 titled George Abraham Vs. Union of India & Ors. dated 29 July 2022

Uttarakhand HC: Persons With Disabilities Entitled To Horizontal Reservation Cutting Across "All Categories": HC Quashes UKPSC Recruitment Notification

High Court:   Uttarakhand High Court

Bench:              Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe

Case No. :         WP(S/B) No.49 of 2022, 

Case Title:        Manish Chauhan and another Vs. State of Uttarakhand and another

Date of Judgement:  27 July 2022

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Case Brief:

The Uttarakhand High Court has quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court's decision in Indra Sawhney vs. Union of India and Anr.

The notification prescribed Horizontal reservation in a manner that in the Un-reserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. Similarly, in the History, no reserved seat was shown for a candidate of disability category who may also be a Scheduled Tribes candidate. 

"The manner in which the State has sought to apply Horizontal reservations is completely contrary to the decision of the Supreme Court in Indra Sawhney (Supra)...Persons with disabilities are entitled to horizontal reservation cutting across all categories." the bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed.

The Court explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat and depending on whichever category that person belongs to, i.e. whether the person is a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.

In Indra Sawhney the Supreme Court had elucidated that Horizontal reservations cut across the vertical reservations and persons selected against this quota will be placed in the appropriate category. "If he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments."

Similarly, Rule 11(4) of the 2017 Rules prescribes that reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.

In its counter affidavit, the UKPSC  submitted that their manner of working out horizontal reservation had been prescribed by the State of Uttarakhand. The Counter affidavit of State of Uttarakhand  stated that the impugned advertisement was issued in lieu of a government order dated 22.05.2020. The GO had stated that "if under horizontal reservation no eligible candidate is found fit for selection, the selection for the said post will be done as per norms of general selection except for the posts reserved for Divyang (Disabled Person)"

The Court opined that the manner in which the State had sought to apply horizontal reservations was legally unsustainable and the notification was accordingly quashed with liberty to come out with a fresh advertisement strictly in compliance with the law. 

Read the Court judgement embedded below:

Supreme Court of India- Degree of disability no ground to deny reasonable accommodation [Judgement Included]

Court: Supreme Court of India

Bench: Justice Dr Dhananjaya Y Chandrachud; Justice Indira Banerjee and Justice Sanjiv Khanna

Case Number: Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 

Case Title: Vikash Kumar v. Union Public Service Commission & Others.

Date of Judgement: 11 February 2021  

Cited as:  2021 SCC OnLine SC 84

Cases refered/quoted: 

• Jeeja Ghosh vs. Union of India (2016)  7 SCC 761; 
• V Surendra Mohan vs. State of Tamil Nadu;  
• Rajive Raturi v. Union of India and Ors., 2017 ; 
• Disabled Right Group and Ors. v. Union of India and Ors., (2018) 2 SCC 397.

Case Brief:

On February 11, 2021, a three-judge bench of the Supreme Court of India in Vikash Kumar v. Union Public Service Commission (Vikash Kumar) held that that an individual suffering from Writer’s Cramp or dysgraphia which is neither an identified disability in the Act nor has been certified as benchmark disability, is entitled to a scribe in India’s Civil Services’ Examination (CSE). 

The judgement is a significant step towards ensuring inclusivity for persons with disabilities as it emphatically affirms their position as rights bearers. It represents a move from a medical model of disability wherein disability is viewed as an affliction to a human rights model in consonance with the mandate of the UN Convention on the Rights of Persons with Disabilities (UNCPRD).

Case details:

In a landmark 62-page judgment, the Supreme Court of India has said that the principle of reasonable accommodation, spelt out in the 2016 Rights of Persons with Disabilities (RPwD) Act, captures the positive obligation of the State and private parties to provide additional support to persons with disabilities to facilitate their full and effective participation in society. 

The Court further said that “…Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India… A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.”

The case concerned a person with a chronic neurological condition resulting in Writer’s Cramp, or extreme difficulty in writing. He was denied a scribe for the Civil Services Exam by the UPSC, on the ground that he did not come within the definition of person with benchmark disability (40% or more of a specified disability).  The Court, in rejecting this stand, held that the petitioner was a person with disability and that provision of scribe to him came within the scope of reasonable accommodation.  The Court said ” … the accommodation which the law mandates is ‘reasonable’ because it has to be tailored to the requirements of each condition of disability. The expectations which every disabled person has are unique to the nature of the disability and the character of the impediments which are encountered as its consequence…”

In a detailed analysis of Indian and International disability law, the Court said that disability is a long-term condition which due to barriers in the environment hinders full and effective participation in society. Reasonable accommodation implies looking at the specific disabling condition and providing amenities in accordance. Examples: Blind persons need screen reading software to work on the computer, hearing impaired need sign language interpreters. Reasonable accommodation extends to all persons with disabilities, not just those with benchmark disabilities.

The Union Public Service Commission (UPSC) argued that as per the CSE Rules 2018 a scribe could only be provided to blind candidates and candidates with locomotor disability and cerebral palsy which resulted in an impairment of function by at least 40%. The Supreme Court observed that the UPSC’s response was contrary to the reply filed by the nodal ministry in India for implementing the provisions of the Right of Persons with Disabilities Act, 2016 (RPwD Act). The law had been enacted after India became a party to the UNCRPD in 2007.

The reply of the ministry recognised that there may be certain medical conditions not identified as disability per se but which have a detrimental impact on the writing capability of a person. Therefore, the onus was on the examining body, in consultation with India’s health ministry, to consider such cases for grant of scribe, extra time or other facilities, on production of a medical certificate. 

In this context, the Supreme Court noted that a ‘person with disability’ under the RPwD Act includes individuals with a ‘long term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, hinders full and effective participation in society equally with others’. The RPwD separately defines persons with ‘benchmark disability’ as those who are certified to have not less than 40% of the disabilities specified in the Schedule of the RPwD Act.

The Supreme Court opined that the higher threshold of benchmark disability could not be imposed to deny equal access to persons with disabilities contrary to the ethos of non-discrimination enshrined in the fundamental rights chapter of the Indian Constitution. 

The judgement clarified that the scheme of the RPwD Act imposed a benchmark disability as a precondition only for access to specific entitlements such as affirmative action as under Sections 32 and 34 of Chapter VI. In other words, the absence of benchmark disability could not be used to deny other forms of reasonable accommodation to persons with disabilities. 

The bench relied upon the landmark precedent of Jeeja Ghosh v. Union of India wherein it was held that equality is not only limited to preventing discrimination but also embraces a wide ambit of positive rights including reasonable accommodation. The principle of reasonable accommodation, the Court observed in Vikash Kumar, is a facet of substantive equality set out in General Comment 6 of the Committee on the Rights of Persons with Disabilities.

The Court also held that the denial of reasonable accommodation constitutes disability-based discrimination under Section 3 of the RPwD Act. The object of the provision is to ensure that persons with disabilities can overcome insidious barriers of exclusion without the imposition of a disproportionate burden. In this context, the state has an obligation to develop an appropriate environment guaranteeing equality of opportunity to persons with disabilities. Reasonable accommodation, such as the facility of a scribe, is therefore an enabling instrument for securing substantive equality.

Further, the state had raised a concern that the provision of a scribe could offer an undue advantage to persons with disabilities. In response, the Court pointed to  the absence of empirical data to hold that this argument of misuse was unsubstantiated. The unfounded suspicion, the Court also remarked, in fact perpetuated the stereotype that persons with disabilities have to resort to state largesse due to their inability to compete on a level-playing field.

Finally, the Court emphasised that it expected the government to consult persons with disabilities in a bid to democratise policy making. It remains to be seen whether such an endeavour results in lasting impact.

Read the judgement embedded below in Civil Appeal No. 273 of 2021 Special Leave Petition (C) No. 1882 of 2021 titled as Vikash Kumar v. Union Public Service Commission & Others. 

Dowload the judgement  [418 KB]

Madrash HC: Chennai Metro Stations do not meet accessibility mandate of Harmonized Guidelines - argues Disability Activist

Court:         Madrash High Court

Bench:        Admitted by Bench of M.M.SUNDRESH, J. and R.HEMALATHA, J.

Case No.     W.P. No. 11041 of 2020

Case Title:  Vaishnavi Jayakumar  Vs. State Commissioner for Persons with Disabilities & CMRL

Case admitted on : 21.08.2020

Next Date: 27.07.2022

Case Brief

This Writ Petition has been filed by our colleague Ms. Vashnavi Jayakumar of Disabilty Rights Alliance, under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus Directing the 2nd respondent i.e. Chennai Metrol Rail Ltd.  to forthwith retrofit its existing metro stations to comply with the Harmonised Guidelines and space standards for Barrier Free BuiltEnvironment for persons with Disabilities and Elderly Persons issued by the Ministry of Urban Development in 2016 and to strictly comply with section 41 of the Rights of persons with Disabilities Act 2016 read with Rule 15 of Rights of persons with Disabilities Rules 2017 in the design and Construction of metro Stations under Construction, including stations planned in the future.

The petitioner informed the court that the metro stations constructed by the respondent CMRL were in violation of the law and were not universally accessible. As per the petitioner, the following features needed to be included in the stations:

i. Anti-reflective flooring which contrasts with walls in colour and is non-slip in dry or wet conditions (resistance of 40-70)

ii. Wheelchair accessible ticket counter with audio induction loop for hearing aid users

iii. Accessible kiosks for blind passengers and wheelchair users.

iv. High contrast signage, displays, information tools and controls with multimodal communication

v. Sliding doors for accessible toilets

vi. Universally designed safety and evacuation equipment

vii. Tactile, high contrast way-finding

viii. Accessible parking

Through various interim orders, all the 32 Metro stations of the CMRL were access audited to see if they meet the requirements of the Harmonised Guidelines and Space Standards 2016 and the respondent has been implementing the same to comply with law.

On 11 Sep 2020, the bench of Mr. Justice MM Sundresh and MRs. Justice R. Hemalatha  directed the first respondent to depute his officials to undertake inspection exercise after making inspection to the existing Metro Rail Stations and file a report on the sufficiency of the infrastructure facilities qua disabled persons. A report in this regard will have to be filed on or before 06.10.2020.

On 11 Dec 2020, the learned counsel for the petitioner had drawn the attention of the Court to Rule 15 of the Right of Persons with Disabilities Rules 2017, as well as the order of ad-interim direction dated 28.06.2016 made in WP.No. 38224/2005 titled Rajiv Rajan Vs. CMD, Metropolitan Transport Corporn (Chennai) Ltd.  and submitted that in the light of the mandate cast upon the relevant statutory provisions, it is obligatory rather mandatory upon the 2nd respondent to strictly comply with the said provisions so as to make the Metro Rail Stations as well as travel disabled friendly and prays for appropraite directions.

On 15 June 2022 the counsel for the second respondent/CMRL submitted that the matter may be taken up after six weeks so that they can take further action to comply with the Harmonised Guidelines and space standards for Barrier Free Built Environment for persons with Disabilities and Elderly Persons. It is, however, submitted that except this, necessary action has already been taken, leaving few, which would also be taken up within the period of six weeks.  

In view of the submissions made by CMRL, the respondents have been given time to take necessary action. The matter has been posted to July 27 for further hearing

Watch out this space for the developments.

Centre Govt. informs SC that it notified the standards of pupil-teacher ratio for special schools and separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools

Govt. of India has confirmed before a Supreme Court bench comprising Justices A M Khanwilkar, A S Oka, and J B Pardiwala on 21 July 2022 that it has accepted the  norms and standards of pupil-teacher ratio for special schools and also separate norms for special educators, who alone can impart education and training to children with special needs in general schools, as recommended by the Rehabilitation Council of India (RCI). In its compliance affidavit filed before the Hon'ble Supreme Court, the Ministry of Education referred to the norms and standards as per which the recommended pupil-teacher (special education teacher) ratio for regular (inclusive) school is 10:1 for the primary level and 15:1 for the upper primary, secondary and higher secondary level.

The letter also clarifies that the parity of pay and service conditions should be adhered to for special education teachers as done for general education teachers at national and state levels", it is related to respective State Governments/ UT Administrations as Education being in the concurrent list of subjects.

With this, a long pending issues have been settled and implemented regarding status of special education teachers  (under RCI) at par with the B Ed. teachers (under NCTE) and also that children with disabilities would be taught only by teachers trained under RCI and the educational insstitutions will also ensure that the teacher pupil ratio as prescribed by the RCI is maintrained to ensure quality of education and to comply with the provisons of the Rights of Persons with Disabilities Act. 

The department of school education and literacy, Ministry of Education, had issued a letter on June 10, 2022 to the education secretaries of all the states and Union Territories (UTs), the commissioners of 'Kendriya Vidyalaya Sangathan' and 'Jawahar Navodaya Vidyalaya Samiti' wherein the norms and standards of pupil-teacher ratio (PTR) have been circulated with a request to take further necessary action in the light of the apex court judgement and furnish an action taken report to the department.

"Since this department has finalised the norms and standards i.e PTR for special teachers/special educators who alone can impart education and training to CwSN (children with special needs) in the general schools, it is humbly submitted that this department is in the process of issuing notification by amending the 'schedule' of the RTE Act, 2009, in compliance of para 34 of the judgement dated October 28, 2021, passed by this court. It is further submitted that this process is likely to take 4 to 6 weeks," the affidavit said.

Supreme Court was hearing the complinace of its judgement passed on 28 Oct 2021 in Writ Petition (Civil) No. 132/2016 titled Rajneesh Kumar Pandey & Ors versus Union of India & Ors, wherein the Court had said that the Centre must forthwith notify the standards of pupil-teacher ratio for special schools as also separate norms for special teachers who alone can impart education and training to Child with Special Needs (CwSN) in general schools across the country.

The bench, however, posted the matter for further hearing on August 17, 2022 asking the concerned states and UTs to submit the compliance report to the Secretary of the Ministry.

The affidavit said the committee, as formed by RCI to formulate the norms of special educators in special schools, was also requested to formulate the norms, guidelines, standards on ratio, roles, responsibilities, etc of special teachers/special educators in general schools in view of the apex court directions. It said the draft norms were submitted to the ministry by the RCI.

 RCI has also recommended and redefined the "role of special teachers", while being a catalyst to empower children with disabilities, they will undertake certain responsibilities for facilitating inclusive education. It included providing tips for making an inclusive school climate, culture, and ethos where all systems from admission to assessments, teaching, and evaluation are disabled-friendly. The letter also referred to the "outreach activities" for special teachers which include, undertaking home visits and support home training programs. The "suggested activities" for special teachers, will also include developing an annual/monthly calendar of activities for inclusion.

Here is the judgemment of the Hon'ble Supreme Court: 

Writ Petition (Civil) No. 132/2016 Rajneesh Kumar Pandey& Others VERSUS Union of India & Others.