Madras High Courts allows Transgender to write PSC Exams after PIL filed

Delighted on this news wherein the first bench of the Madras High Court upheld the right of Equality of the Transgender Community in the matters of employment under the State !

Congratulations to Swapna and yes the First Bench of the Hon'ble TN High  Court!

Here is the news from Times of India !

TN allows transgender to write PSC exam

A Subramani | TNN 

Chennai: It was a tiny relief for Swapna, but a giant leap for the entire transgender community. 

Thanks to the Madras high court, Swapna became the first person in the country to choose her own sex, and get a legal stamp for it, too. Her school and college certificates show her sex as ‘male’, but Swapna has now chosen to be socially recognised as a transgender and be officially treated as a ‘woman’. After she moved the court, state public service commission has now allowed her to write its recruitment test as a ‘woman’ candidate, which will make her eligible for posts such as deputy commercial tax officer and sub-registrar. 

She, along with four other members of the transgender community, filed a PIL in the high court with a twin prayer – one, to direct the Tamil Nadu government to reserve 3% of seats in education and employment for transgenders; two, to direct the Tamil Nadu Public Service Commission (TNPSC) to permit Swapna to sit for examination by treating her as a ‘woman’. 

On Wednesday, the TNPSC’s standing counsel handed over a hall ticket to Swapna, permitting her to write examination for Group-II posts to be held on December 1 as a ‘woman’ candidate. The venue where she received the hall ticket was no less significant – it was the first bench of the high court.

Source: Times of India 28 November 2013

Bombay Hight Courts directs Railways to be sensitive to disabled

Dear Friends,

Our disability law is almost 16 years old now. What it mandated to ensure accessibility for the disabled in public spaces including modes of transport such as road, Rail and airways, these modes continues to ignore the rights of the disabled people. There is some improvement in the road transport in few pockets such as a Metro Rail in Delhi or Low Floor buses with corresponding road infrastructure in BRT  dedicated corridors. However, largely, the railways has been most insensitive to the needs of the disabled. It impacts the persons with disabilities all the more aggressively since rail happens to be the most economic option for long distance travel in India. Knowing well their obligation under the disability law, the railways has taken resolutions/ passed memorandums and instructions. However, on ground there is hardly any change and the worst is the maintenance track record. One can find most unhygienic toilets on the Indian Railways - in both coaches and at platforms. This is just not managed professionally.  Here is some advice from the Mumbai High Court and I can tell you, there are several of such public interest litigation in various other High Courts in India with Railways only busy defending these cases in the Courts at the Exchequer expenses. Can  it deploy its resources to promote accessibility and good hygiene at Railway properties rather than paying hefty professional fee to Standing Counsels to defend the petitions against it? I am sure the former would be easier, cost effective and in the larger interest.

News coverage

(a) Times of India: HC flays Railways for ignoring the disabled

(b) DNA India: Bombay HC: Be sensitive to the differently-abled

Asking the Railways to be sensitive towards the needs of the differently-abled, the Bombay high court on Monday asked the body to address two primary issues immediately - disabled-friendly toilets and ticket windows of a lower level to make it accessible for a wheelchair-bound person.

The court was hearing a public interest litigation (PIL) filed by India Centre for Human Rights, an NGO, in 2007, seeking easy access for differently-abled persons to the railway platforms in the city.

A division bench of chief justices Mohit Shah and Roshan Dalvi has asked the court-appointed committee to devise a plan for implementing the 1998 government resolution which recommends establishing of disabled-friendly toilets and lower level ticket window at all city stations.

In October 2011, the HC had appointed a committee - one from the petitioner NGO, an officer from the accounts department, one engineer and three officers each from the Western and Central Railways - to come up with solutions for problems faced by the differently-abled.

“Without telling you (Railways), your officers should address the issues. You know your own recommendation since 1998. Why should someone else point it out to you?” asked chief justice.

The 1998 GR was pointed out by Kranti LC, advocate for the NGO, saying that the Railways have not been taking the initiative for making the platforms disabled-friendly.

Kranti pointed out that some of their NGO’s members had taken a survey of 104 stations. “Only 3% of toilets are accessible to the disabled,” he said. He further pointed out that in their July 2011 affidavit, they had suggested that slopes for access to platforms were too steep at several stations and this had not been rectified.

Beni Chatterji and Suresh Kumar - counsels for the Western railways - said that the NGO should point out the deficiencies to them and they would then take necessary actions. To this, chief justice frowned and said, “Why should anyone point out deficiencies? That’s why we have constituted the committee. What have you been doing?”

Chatterji assured the court that this time they would definitely look into their grievances. The chief justice suggested that Chatterji remain present in the next committee meeting.

Directing the railways to give priorities to the issues of toilets and lower ticket windows, the court has asked the railways to submit an Action Taken Report on the next date of hearing on March 1. 

Source: DNA  India

Delhi High Court questions discrimination in Online Reservation in Railways

HC backs e-ticketing for disabled

Read the news directly from source:
Supporting the idea of e-ticketing facility for the physically challenged, the Delhi High Court on Wednesday issued notices to the Railways and the central government on a PIL demanding web reservation for them at concessional rates.

A Bench headed by Chief Justice Dipak Misra said the authorities must first display the sensitivity and that the technical requirements could be taken care of subsequently.

Admitting a PIL filed by advocate Pankaj Sinha, a visually challenged lawyer, the Bench directed the counsel for the Railways and Additional Solicitor General A S Chandhiok, appearing for the central government, to explain why facility was denied to physically challenged people.

The Bench dismissed the argument of the Railways counsel that the physically challenged were not given the facility of e-ticketing because of concessions they availed and that their documents regarding the disability were to be verified first.

“How can you place it as a justification? They can always be asked to show documents before they start or during travel,” the Bench observed.

The court will now hear the matter on May 18.

Hi,


First of its kind judgement from a High Court in recent times where the provisions of Section 47 of the Persons with Disabilities Act 1995 have benefited an employee acquiring a mental illness, while in service!  Congratulations to High Court of Madras (read Justice K Chandru) on this progressive judgement, Mr. Narayanan the employee, the disability sector and not to forget the advocate who presented the case!. 


Here are the links to the case details:

Mental illness can be included under ‘disability'

B. Kolappan

Court directs State department to pay full salary to employee who was relieved from service

Says termination of his services clearly in contravention of Section 47 of the PWD Act

CHENNAI: Mental illness or retardation can be brought within the term ‘disability' under sections of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (PWD Act), the Madras High Court has said.

Directing a State government department to pay full salary, including annual increment and other monetary and service benefits, to an employee who was relieved from service on the ground of mental disability, Justice K. Chandru said the benefits should be given from the date of disability till the date of his retirement.

Allowing a petition filed by C. Narayanan, who worked as Assistant in the government Industrial Training Institute (ITI), Justice Chandru also said that the order of the Director of Employment and Training terminating Mr. Narayanan's services was “clearly in contravention” of Section 47 of the PWD Act. Section 47 clearly indicates “no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service.”

“It is ironical that the respondents belonged to the Department of Employment and Training. They are expected to advise other departments about the rights of employees in such departments. If the Department of Employment itself is not aware of the provisions of the Act, that really is a sorry state of affairs,” the Judge said.

The authorities' action had betrayed their ignorance of the PWD Act, he said and directed them to pay case cost of Rs.5,000 to Mr. Narayanan for having made him run from court to court against the dismissal.

Mental illness can be included under ‘disability'  

Read more at :  

http://www.hindu.com/2010/12/28/stories/2010122861840100.htm

Mental disability no ground to sack employees: HC


Read more: Mental disability no ground to sack employees: HC - The Times of India http://timesofindia.indiatimes.com/india/Mental-disability-no-ground-to-sack-employees-HC/articleshow/7175522.cms#ixzz19V1cigTe

Railways continues to discriminate against Persons with Disabilities- Case of Jayanta Khamari

Dear Friends,

Laws fail to work when social attitudes and mindsets are rotten, diseased and highly biased towards persons with disabilities. Defect, abnormality, less fortunate, to be dealt with pity and not equal are what prevalent in our society still!

To top the list of such organisation is Indian Railways. They refuse to abide by law. Railways is a sea with so many divisions, branches, regions and due to lack of a uniform, transparent and effective system in place, rights of people get often abused at the whims and fancies of certain officials who continue to harbor such attitudes against the citizens with disabilities. This is precisely the reason that the Railways have not been able to fill up their backlog of jobs for disabled persons in a transparent manner despite Delhi High Court orders on a PIL filed by AICB, Delhi.

The present case is of Shri Jayanta Kumar Khamari, who wanted to join Railway Engineering Service and has been forcibly given Military Engineering Service. Result declared by Railways indicates his name on page 3 rank 38. Result 2007. He is still awaiting his choice posting even after two years of clearing the Indian Engineering Service. Reason- he doesn't have three fingers in the right hand!

Any physiotherapist/occupational therapist or orthopedic surgeon would opine that if one has thumb opposition available in the hand, majority of jobs requiring fine finger dexterity can be easily performed. Also in the present case, Jayanta functionally uses his left hand as efficiently as his right hand but Railway believes he can not work efficiently and his disability will affect his work. So they came up with a plea that they don't have any post identified for such candidate.

And mind you, the gentleman is working as Junior Engineer with CPWD for past several years with no adverse remarks on productivity due to disability!

High Court of Orissa has categorically expressed in its order, "We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"

Hope good sense of law and human rights will prevail and Railways will make itself more receptive to diversity (read) employees with Disabilities to be contributing members of their workforce.

warm regards

Subhash Chandra Vashishth

Advocate & Consultant -Disability Rights

0981125521, subhashvashishth@gmail.com

Click here to read from Source: Even Rahul Gandhi Failed Me

Jayanta Kumar Khamari, an Indian Engineering Service graduate, is fighting for a job in the Indian Railway Service of Engineering. He says he was assured by many leaders, including Gandhi, but the Railways denied him his choice as he doesn't have three fingers on his right hand

Rahul Gandhi, the scion of the most powerful family in the country, can give cold feet to his veteran political opponents. Yet, there are things which are beyond his reach too. Ensuring a job with the Indian Railways, for instance.

That too, despite a High Court order in support of the applicant.

Jayanta Kumar Khamari, from Bhubaneswar, met the Congress general secretary in hope that he will be able to get justice with the young leader's intervention. However, even after receiving assurances from Gandhi, the 35-year-old Indian Engineering Service graduate continues to work in the Military Engineering Service, despite achieving 35th rank in the merit list that qualifies him for the Indian Railway Service of Engineering (IRSE).

Handicap trouble

Even the Railways has no qualms about Khamari's qualification. The problem lies in his right hand that is devoid of any fingers except for the thumb. Khamari suffered from a consumption disease in his childhood, thereby causing the amputation of four fingers in his right hand.

However, Khamari turned ambidextrous and is now able to use his left hand as efficiently as his right. But, the Railways believes the disability could become a hurdle in his way of achieving success as an engineer and therefore, he was refused his preferred choice of service.

"I appeared before the medical board, which recommended me for field work after examining my hand. The Railway Board was the nodal authority for appointment and it did not take up my case, as per my choice for the Indian Railway Service of Engineers," Khamari said.

For the last two years, Khamari has been waging a pitched battle against the alleged discrimination against him.

Even ten years of Khamari's experience as a junior engineer with the Central Public Works Department (CPWD) failed to convince the bosses at the Railway Board to allow him to achieve what he truly deserved.

In the hope that the 'most powerful leader in the ruling party' (Rahul Gandhi) will ensure his choice of job, Khamari met him in August last year. But contrary to his belief in the omnipotence of the scion of the Nehru-Gandhi family, nothing happened.

Not only Gandhi, many others, including the Minister of State for Railways Naranbhai Rathwa, did not pursue Khamari's case.

"I met the chairman and secretary of the Railway Board. I also met Sanjay Mitra, joint secretary and Satyanarayan Sahu, director at the Prime Minister's Office but even they could not help me," Khamari told MiD DAY.

In court

The young engineer, however, did not lose hope and moved court against the alleged discrimination against his disability by the Railways. He lost in the lower courts, initially, yet continued his battle.

Now, Khamari has the backing of a favourable order by the Orissa High Court and an equally damning assessment of the discrimination by the Railways from the Chief Commissioner for Persons with Disabilities (CCPD).

Long fight

Apart from a frustrating wait for what he deserved, Khamari had to face several other hardships to shuttle between Bhubaneswar and Delhi.

"When my case was pending with the CCPD, I stayed in Delhi for almost two months. During that period, almost for a month, I stayed at Jagannath temple, near IIT. And then with my friends in Jia Sarai, Katwaria Sarai and Ber Sarai," said Khamari. But, now with the High Court by his side, it seems that Khamari has finally got his 'hand of God'.

What the law says

Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides that the appropriate government in every establishment shall appoint such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for the persons suffering from:

i. Blindness or low vision

ii. Hearing impairment

iii. Locomotor disability or cerebral palsy, in the posts identified for each disability.

The proviso to Section 33 of the Act states the appropriate government body is at liberty to exempt any establishment from the provisions of this section by notification. From the order of the Chief Commissioner it appears there is no notification exempting the Railway from the purview of Section 33 of the Act.

The High Court said...

"We are of the view that the action of the Railway Board to allot the petitioner to Military Engineering Service under the Ministry of Defence against the earmarked vacancy for physically handicapped candidates on the plea that no post identified for such candidate was available in Railway Engineering Service is absolutely incorrect and unjustified. The Railway Board is required to act in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Accordingly, we direct the Railway Board to issue necessary orders in favour of the petitioner in terms of the order of the Chief Commissioner within a period of two months from the date of receipt of this order." Justices BP Ray and BP Das, September 17, 2009

Delhi High Court directs Union of India to amend Insurance Rules for the Disabled Employees

Dear Friends,

Many govt. employees were voicing their concerns on the in equal treatment meted out to them by the Govt's Postal Life Insurance Scheme where with a normal premium, the non-disabled employees were given a cover up to Rs. 5 lac while the disabled employees were given merely a cover of just Rs. 1 lac, that too with an increased premium and lot of hiccups.

Citing UNCRPD and equality principles that Constitution of India guarantees to all its citizens - including those experiencing disabilities, the matter was filed before Delhi High Court by Advocate Pankaj Sinha (an emerging lawyer with blindness who currently work with Human Rights Law Network, Delhi).

The Court not only admitted the petition on the first date itself, but also directed the Solicitor General to appear in person and respond to the discrimination. I am so happy to share this news with you today - not only because this is a welcoming move by the Delhi High Court where a case is being fought citing UNCRPD but also because Mr. Pankaj Sinha has been my associate in the past and I am proud to have groomed him in the human rights and especially disability rights discourse - to which he was initially never inclined as he always wanted to be a criminal lawyer.

Cheers to Pankaj and Cheers to the Human Rights Law Network (read Mr. Collin Gonsalves)! and also to Mr. Rajiv Raturi, Director- Disability Rights Initiative, HRLN. Would post the detailed judgement once the final verdict is delivered by the Court.


Here is the detailed article by an enthusiast reporter Ms. Sangeeta Sharma from United News Of India(UNI). She supplements that the centre had sought 6 weeks time to ammend the concerned rules on the 07 October 09 (the date of hearing). Ms. Sangeeta can reached at snguni@gmail.com.

regards

S.C. Vashishth, Advocate

Delhi HC directs Centre to amend its insurance rules for disabled

8/31/2009

The Delhi High Court directed the Central government to reconsider its postal insurance rules and to treat the persons with disability at par with other people. Appearing on behalf of the government, Solicitor General (SG) Gopal Subramanium assured the court that the government will take broad base consultation with experts and also take advice from the insurance regulator and draft a fresh policy which will have no disparity for the disabled.A bench comprising Chief Justice A P Shah and Justice Manmohan directed the government to file their reply to the court within four weeks as to what will be their stand in this regard.

Fixing the matter for October 7, the court told the SG to revisit the Postal Insurance Policy as they have taken all disabled under one category. "When fixation of the policy is to be done, then you must consider the distinction between various types of disability as well as mortality factor caused by it. Moreover, life expectancy and other factors should also be taken into account," Justice Shah said.

A petition in this connection was filed by one Vikas Gupta, an Assistant Professor in Department of History, Delhi University, who is visually impaired. In his petition he said,"Rules of the postal insurance for government employees is discriminatory as it gives a cover of Rs 5 lakh to a normal person, but a handicap has to pay much more premium and gets an insurance cover of Rs one lakh only."

The Lawyer for the petitioner Mr Pankaj Sinha, also a visually impaired, and lawyer Ms Roma Bhagat told the court that Article 25 E of United Nations Convention On Rights for Personal Disability (UNCRPD) prohibit discrimination in the insurance policy. Ms Bhagat told the court that their research has shown that those who are hearing impaired, visually impaired or orthopedically impaired are less prone to accidents as they have less mobility and are more cautious.

She told the court that there is no data available in India to show the cause of death as the death certificate does not mention it. Also, there is no data to suggest that disabled are more prone to accidents so why they have to pay more to get a less insurance cover, Ms Bhagat said.