Adjustment of compassionate appointment against disability quota

Dear Colleagues,

I hope you have heard of this case being represented by my colleague Jayshree Satpute on behalf of the victim. For the information of those who are new to this case one Ms. Mahjabi, a journalism student from Dehradun, was in Delhi on vacation and was at the Rajiv Chowk Metro station with her mother. On the fateful day of March 26 last year, as a train was entering the overcrowded platform, Mehjabi was pushed on to the tracks as commuters jostled to get ahead. She was about to complete her journalism course and was close to landing a job with a news agency.

The court in the instant case has suggested that the  DMRC should also consider the feasibility of grant of preference to the disabled, who have suffered their disability either in the course of the construction work for Delhi Metro, or while using the services, within the three per cent reservation granted to the disabled persons.

I am in perfect agreement with the suggestion that the DMRC as a model employer should consider preference to such disabled persons who have acquired their disability either in the course of the construction work for Delhi Metro or while using its services as a commuter. However, it should be done under some separate scheme on Compassionate Grounds appointments. 

I am strongly against any move to adjust such seats in the three percent reservation quota available to persons with disabilities under the Persons with Disability Act 1995. Such a move would further shrink the number of jobs available in Delhi Metro to the persons with disabilities. Already, the tendency of the Government bodies/public authorities is to read the minimum 3% reservation as "Maximum 3% reservation" which is doing more harm than good to the job prospects of the potential employees with disabilities. The tendency is to adjust even those who get selected on their own merit without using any relaxed standards though is strictly against the settled norms and the policy!

Therefore, I reiterate that rather than adjusting persons acquiring a disability as a result of metro construction work or while using metro services, it would be worthwhile to consider them under a special scheme of "Compassionate Grounds appointments" and not under the regular reservation quota of minimum 3% reservation. For the mandate of the Disabilities Act is loud and clear that it is minimum 3% and not maximum and any disability which is acquired due to in-actions or actions of DMRC can not be adjusted in the present quota.  Similarly the protected disabled employees under Section 47 of the Disabilities Act can not be adjusted in to the 3% quota when they are retained after acquiring a disability. Though they may become a part of this 3% in future promotions or recruitment.

regards

Subhash Chandra Vashishth, 

Advocate- Disability Rights

Here is the news report from Indian Express:

Frame policy to employ Metro accident victims: HC to DMRC

New Delhi

The Delhi High Court has asked DMRC to consider framing a policy to ensure employment for commuters or employees who lose their limbs while using the facility or during work.

The court observation came during a hearing of a petition filed by 23-year-old journalism student, Mehjabi, who had lost both her legs in an accident at Rajiv Chowk Metro station last year. She has been fighting a case demanding compensation or a job with DMRC (Delhi Metro Rail Corporation).

Justice Vipin Sanghi has sought an affidavit from the DMRC after observing that the Metro, as a model employer and a service-provider, should look into the aspects of providing a job to accident victims.

The judge said any accident during construction work, or while using Metro train services, severely diminished the quality of life of an individual and hence, the DMRC should consider framing a preferential policy.

As the first affidavit submitted by the DMRC in response to Mehjabi’s petition did not specifically deal with the aspect of the reservation for the physically challenged, Justice Sanghi asked the Delhi Metro to file an additional affidavit, placing on record the policy for grant of reservation to the disabled.

“The DMRC should also consider the feasibility of grant of preference to the disabled, who have suffered their disability either in the course of the construction work for Delhi Metro, or while using the services, within the three per cent reservation granted to the disabled persons,” said the court.

During the hearing, Mehjabi’s counsel Jayshree Satpute told the court that her artificial limbs also required servicing, and hence, the Metro should be asked to bear the expenditure.

Acceding to the request, Justice Sanghi asked the DMRC, which had borne the expenses for procuring the artificial limbs for Mehjabi, to also meet the costs of the first servicing of the artificial limb.

Mehjabi was pursuing a journalism course in her hometown Dehradun, and was close to landing a job with a news agency when she met with the accident on March 26 last year. She was in Delhi on vacation and was at the Rajiv Chowk Metro station with her mother. As a train was entering the overcrowded platform, Mehjabi was pushed on to the tracks as commuters jostled to get ahead.

How to define Disability- dismissal from Medical College on grounds of learning disability upheld

How to define disability?

Appeals court rejects suit by ex-student against medical school | Inside Higher Ed

WASHINGTON -- A federal appeals court ruled Friday that George Washington University was within its rights in 2003 when its medical school kicked out Carolyn Singh, having determined that she was not meeting academic standards. Singh was diagnosed as having a learning disability shortly before she was dismissed, and she claimed that GW violated the Americans with Disabilities Act by not accepting her diagnosis and approving adjustments she requested.

The decision could be important not only for Singh and the medical school, but for others in higher education who are debating how to determine whether students have learning disabilities and, if so, what kinds of accommodations are appropriate for such students.

Several college associations filed a brief in the case arguing that colleges and courts need to have leeway to evaluate the validity of claims that students have learning disabilities. The brief argued that many such claims may not be accurate, and that colleges risk being unfair to other students if they accede to all of the requests for accommodations. Lawyers for Singh, however, argued that the college associations' brief was pushing for too much leeway for higher education, in ways that could limit the rights of students with disabilities.

Another issue in the Singh case was the applicability of revisions to the ADA made subsequent to her dismissal. The appeals court ruled that applying those provisions retroactively would be unfair to the university.

In terms of the applicability of this case beyond Singh's claims, the key part of the decision was on whether a district court had reasonably denied her attempts to link her academic performance to any disability she may have.

Singh was admitted to the medical school despite lower than standard scores on the Medical College Admission Test, and was allowed to enroll in a special program in which students spread out their initial courses over a longer time frame than normal. Despite a prior good academic record, she did poorly at GW and was regularly at risk of being asked to leave. The court record cites evidence that she was repeatedly advised to focus more on her academic work and to cut back on an active extracurricular life (taking a music class, serving on student government committees, and serving as the student government's social chair).

Only after a committee recommended her dismissal (but just before a decision was made by the medical school administration) did Singh seek an evaluation of a possible disability, and she was diagnosed with dyslexia and a "mild processing speed disorder." The university shortly after that dismissed Singh, and officials said that they did not consider the disability diagnosis in their decision.

In the appeal, lawyers for Singh (who could not be reached for comment) argued that the district court had been too quick to dismiss evidence of disability, and specifically to rely on Singh's past academic success as evidence of her ability to do well. The brief said that Singh had a particular problem with multiple-choice questions, and that she had managed to avoid being evaluated on their basis before med school. Singh "attained her achievements by avoiding the very activities in which she was limited," the brief said.

Further, the brief said that the university and the college associations were arguing for "broad deference" in ADA cases, which Singh's backers argued was inappropriate. "[D]eference is inappropriate because it would effectively immunize academic institutions from liability for their violations of the ADA by granting deference to the very decisions suspected of being discriminatory," the brief said.

Friday's ruling, however, said that the district court had ample evidence to reject Singh's claims. The ruling noted that the district court judge cited a range of possibilities -- including Singh's study habits, extracurricular activities, and statements that she had experienced stress after the 9/11 attacks -- to say that she had failed to demonstrate conclusively that her academic difficulties were related to a disability. For this reason, the appeals court said, the district court had made a reasonable decision.

A statement from GW said that the university "is pleased with the court's unanimous decision. The court's analysis provides important guidance not only for GW but also for other colleges and universities which may face similar situations."

Concerns About Learning Disability Claims

A brief filed by the American Council on Education, the Association of American Medical Colleges and the Graduate Management Admission Council (plus several colleges in the District of Columbia) said it was important for courts to consider flaws in diagnoses of learning disabilities. "In most cases, it is far more difficult to confirm the existence of mental impairments and to evaluate the resulting functional limitations than it is when dealing with physical impairments," the brief said.

While the brief stated that the groups do believe that some students have learning disabilities, it offered much skepticism about the growing number of such diagnoses made on behalf of students. The brief said that "there are no universally agreed-upon standards" for diagnosis, and studies showing that students diagnosed under some systems might not be deemed learning disabled under other models. Further, the brief said that "some individuals 'exaggerate' their symptoms" to be diagnosed and to receive accommodations.

These issues have "important implications," the brief argued. Request for accommodations on standardized tests "could alter ... procedures that produce reliable and comparable test scores," the brief said.

It also raised issues of fairness to all students. "[S]tudents have a legitimate interest in ensuring that supplemental academic services that are not available to all students are provided only when warranted," the brief said.

Read more: http://www.insidehighered.com/news/2011/12/12/appeals-court-rejects-suit-ex-student-against-medical-school#ixzz1gU1wVn7B
Inside Higher Ed

Deaf Man sues for being jailed without hearing him out through a sign language interpreter

Dear Friends,

After success at a PIL seeking interpreters for the deaf people  to make the public places accessible, the incidences like the one below in USA should become common in India too!

The present suit is a struggle of Siaki, a deaf person, against the establishment for denying him access to justice by not providing him a sign language interpreter during the arrest and booking process.

The suit indicates the urgent need of policies and procedures for dealing with deaf people keeping in mind their access needs and human rights. Its is wrong to assume that a deaf person understands what is being said to him.

Here is the struggle of  Siaki, a deaf person, against the establishment for denying him access to justice.

To read from Source click here : Mail Online

Deaf man suing after being jailed for 25 days 'without a sign language interpreter'

Authorities detained a deaf man for 25 days in jail without providing a sign-language interpreter, lawsuit has claimed. 

Domestic assault charges were eventually dropped against Timothy Siaki by Adams County officials.

A lawsuit filed Wednesday in U.S. District Court seeks unspecified damages and a finding that Adams County officials violated the Americans With Disabilities Act over his May 14, 2010, arrest and detention.

The Denver Post reports Siaki doesn’t read or write English or read lips, but he does communicate through American Sign Language. Deputies arrested Siaki after a noise complaint at a motel where Siaki and his fiancee were verbalizing sounds while arguing.

Deputies responding to the complaint knocked down the motel-room door and tackled Siaki after he failed to respond to their commands.

An Adams County sheriff’s spokesman says officials need to review the suit before commenting. Siaki’s fiancee, Kimberlee Moore, as well as Colorado Cross-Disability Coalition advocacy group are also plaintiffs in the suit.

Adams County Sheriff Doug Darr is named as the defendant.

'There were 25 days of his life that he had access to nothing — no information on why he was being held, no information about his case or what was going to happen to him,' said Kevin William, an attorney who filed the lawsuit.

According to the lawsuit, Moore tried to tell the deputies that Siaki didn’t hurt her but couldn’t because she was not provided an interpreter or any aids.

The suit claims Adams County is violating the ADA by failing to provide an interpreter or auxiliary aids for deaf suspects during their arrest and booking process.

'To this day,' he said, 'we don’t know why he was held for 25 days.'

Williams told the paper the coalition recently settled a similar case against the Lakewood Police Department and the Jefferson County Sheriff’s Office that call for very specific policies for compliance with the ADA.

'They need policies and procedures for folks who are deaf,' Williams said. 'People just assume that a deaf person understands what they are saying.

Bombay HC - Termination of Driver with Colour Blindness quashed, given protection of section 47; Disabilities Act 1995

Dear Colleagues,

In the instant matter, the division bench of Justice S A Bobde and Justice M N Gilani of Bombay High Court has agreed that the case of a civil mechanical transport driver employed by the Indian Air Force who was sacked from his job after he was found to be colour-blind is covered under Section 47 of the Persons with Disabilities Act 1995 and as a result quashed the termination order of Pramod Sadashiv Thakre.

Under the Persons with Disabilities (Equal opportunities, protection of rights and full participation) Act 1995 - a benevolent legislation- an employee who acquires a disability during his service cannot be thrown out of his job. In case, he is unable to do the present work for which he was employed, it is the employer's duty to transfer him to another post or give him a supernumerary post.

Thakre was appointed as a civil mechanical transport driver in 2003. According to Thakre, he was found fit for the appointment on the basis of a civil surgeon's medical certificate, which declared him normal. Two years later in August 2005, his services were terminated on the grounds that he had been found to "suffer from colour-blindness". The CAT set aside the termination order, but the Union Ministry of Defence and the Indian Air Force approached the Nagpur Bench of Bombay High Court against the order of the Central Administrative Tribunal, Bombay Bench, Camp at Nagpur.

The Union of India claimed that Thakre could not have acquired the colour-blindness during his employment as it was congenital. The High Court, however, did not buy the argument, "Firstly, no medical evidence was placed on record to establish that colour-blindness can only be congenital and cannot be acquired.  Moreover, there is no evidence on record that Thakre was colour-blind when he was employed. The petitioners accepted the respondent's fitness by relying on the certificate granted to him which sets him as normal," the judges said while upholding the CAT order. The court said that the IAF did not administer any test to check if he was colour blind.

Judgement Included

Click here for the Judgement dated 24 Feb 2011 by the Central Administrative Tribunal in OA No.   2117/2006 titled Pramod Sadashiv Thakre Vs. Union of India & Ors.

Click here for the Judgement dated 19 October 2011 of the Hon'ble Bombay High Court Writ Petition No. 3620/2011, titled Union Of India vs Pramod Sadashiv Thakre

No homes for mentally ill in Delhi despite Delhi High Court Order

Dear Friends,

The courts can only do only so much and can not take charge of welfare activities that Government is supposed to undertake. The Government also has to become pro-active and  take some responsibility. The experience so far has not been very encouraging with the Government. Its some spirited individuals and NGOs like Sudinalay who have been trying to reach out and manage some services for the mentally ill on behalf of the Government.

The undue suffering of persons merely because they can not voice their needs and demands is a slap on the face of the community and elected government. The news items below from Indian Express by Pritha Chatterjee highlights the sorry state of affairs on the human rights of persons living with mental illness with no family support that too despite clear cut directions to the  Delhi govt. by the High Court of Delhi.

Three years on, no homes for mentally ill

As many marked the World Mental Health Day, women treated for mental disorders at the Institute of Human Behaviour and Allied Sciences (IHBAS) in Dilshad Garden, continued to be in a temporary home for the mentally ill.

Started by the government after a Delhi High Court order in 2009, the temporary home in Kabir Basti, Malkaganj, is run by an NGO Sudinalay.

Originally an amphitheatre, built by the MCD in 1988, the complex had remained unused for decades. In 2009, while reviewing the condition of mental healthcare services, the court had directed the Delhi government to set up a 20-bedded facility in the area, with immediate effect. However, after providing land, the government failed to provide any finances or arrange for the repairs of the structure.

With a densely populated basti in front, and forests on both sides, the structure has no proper entry or exit gates. Security issues were of great concern as repeated instances of break-ins were reported. Hence, it took another court order, for the police to provide a 24X7 protection to the home. At the rear of the structure is a garbage dump, infested with mosquitoes, and where people defecate in the open.

It has dilapidated doors and windows, which do not close properly, and has a narrow balcony with only two-feet-high grills. “This is nothing. Many of these women are violent, I am always worried about one of them attempting suicide,” a caretaker said.

Of the 25 women, two are paralysed below the waist, two are HIV positive, and one has spinal tuberculosis.

The court had also directed the Health and Social Welfare departments of the Delhi government to set up and run 18 such homes — within a year. Further, an expert committee appointed by the High Court — consisting of Dr Nimesh Desai, director of IHBAS, Sreerupa Mitra Chaudhury, who runs Sudinalay and Dr Anchal Bhagat, consultant psychiatrist at Apollo Hospital — were to submit quarterly reports on the development of the homes. However, three years since, no such homes have been set-up.

Defending her department, Social Welfare minister Dr Kiran Walia said though the Rs 60-crore project has been approved by the Finance department, the Cabinet approval is still awaited. “Procuring land from the DDA, getting clearances from the Finance department, and the architectural design approved by Delhi State Industrial and Infrastructure Development Corporation (DSIIDC) took time,” said Walia.