After Contempt petition, Deptt of Education, Delhi notifies nursery seats for children with disabilities

Please refer to my earlier posts titled  Disability angle in Nursery admission norms - HC issues notice to centre dated 26 Feb 2014 and Child with special needs distinct from disadvantage group under RTE dated 04 April 2014 on the subject. 

The Directorate of Education has finally notified the  high court order on the admission of disabled children into nursery. The circular directs 51 private unaided schools "to reserve at least two seats for the 'children with special needs' (CWSN) in their schools in nursery class for the academic year 2014-15".

To access the DoE Notification dated 19.5.2014, click here.  (The notification, the list of schools & the high order though is not accessible to the persons with visual impairment and is a very dim copy.... thanks to lack of sensitization in the DoE). This notification has come after the petitioner-representing a group of parents with disabled children-filed a contempt suit and over a month after the court first ordered DoE to keep seats vacant for this group on February 27.

The circular is not only for the 15 schools mentioned by the high court on May 15, but also says, "other schools as mentioned by the petitioner in the writ petition are also directed to reserve the same number of seats" for the group.

The petitioner had furnished the court a list of 44 schools that had, till the previous academic year, allocated points in the 100-points system to disabled children. On April 11, DoE ordered inspection of these schools to take stock of existing facilities and on May 7 told the court that 18 had facilities, 18 didn't, and another eight couldn't be inspected. The same day, the petitioner submitted another list of seven schools that had offered similar points in the previous session.

The court had asked DoE to direct 15 (the eight uninspected and the seven newly-submitted) schools to reserve seats for the group. On being summoned, the representatives of the 18 schools without facilities also appeared in court on May 20 and will have to return with their replies on May 28.

DoE on Tuesday listed 51 schools -with and without facilities, the eight uninspected and the seven introduced later. On May 7, the court, "considering the fact that finalization of the admission process is imminent in the view of the orders of the Supreme court," directed DoE to issue a circular "within 24 hours from today (May 7)." When DoE didn't, the petitioner filed a contempt suit. The principal secretary (education) had appeared in court on May 16. DoE, however, remains under contempt till next hearing.

Cardiologist Amita Garg, who initiated litigation in the matter, is disappointed that DoE has taken so long. "This is just the start for us," she says. "We'll have to now approach schools afresh."

When the points system was fixed for all this year, no separate category was created for the disabled candidates. Under Right to Education Act, the disabled kids, coming under the 'disadvantaged categories', are eligible to apply for the 25% free-ship quota.

However, there's just one draw per school for it and the number of EWS (economically weaker section) applications is so overwhelmingly large, the disabled group has found itself out of the race altogether.

Source: Times of India  

Central Administrative Tribunal directs Railways to appoint visually impaired candidates

Dear Colleagues,

Railways has always been very reluctant to hire persons with disabilities citing safety and security reasons though not even a single incident of safety has been attributed to disability till date.  Its actually a mindset of the Human Resource officials, inherent prejudices who attach incapacity to the disabled. 

In the instant case, nearly 10,000 visually challenged candidates had reportedly appeared in the examination in November-December 2013 after the railways advertised for 7,386 vacancies. All of them were, however, issued rejection letters by the Indian Railways before the results were announced for being “100 per cent visually challenged”.

In protest, the applicants moved  a petition in Central Administrative Tribunal (CAT), arguing that they are eligible and entitled to be considered for the posts, both on merit as well as under reservation for visually challenged persons.

The CAT in its order yesterday directed Northern Railways to publish a revised merit list and appoint the candidates, who qualified on merit as well as under the disability quota.

Arguing for the applicants, lawyer S K Rungta – himself visually challenged – said the Northern Railways’ recruitment cell must file complete results, including the results of 100 per cent visually challenged candidates, so that their merit position could be ascertained.

Rungta and lawyer Pankaj Sinha urged the court to direct the Railway Board to consider appointing the petitioners and other visually challenged candidates.

The railways responded by saying that the vacancies were for people with “low vision” and that 100 per cent visually challenged persons cannot be hired for the posts despite the fact that the posts in question are identified as suitable for completely blind by the Government of India.

The tribunal, however, directed Northern Railways and the Railway Board to publish the complete results within two months and appoint the qualified candidates.

Northern Railways spokesperson Neeraj Sharma refused to comment. “The matter is sub-judice, so we cannot comment. But the railways will take appropriate action after consulting its legal department,” he said.

Despite catena of judgments by High Courts and Supreme Court, the Railways continues to play hide and seek when it comes to the equal employment rights of the persons with disabilities. In this matter, despite CAT's direction,  I am sure, given the past experience, Railways will delay the matter by knocking the doors of Delhi High Court against the CAT Order. However, the writing is clear on the wall. The Railway officials in the Human Resource division needs serious sensitization on disability issues and also  need to put their house in order. The reporting mechanism, appraisal, posting/transfers, disability reservation & promotion processes & equalizing facilities, reasonable accommodation for the employees with disabilities is something that they desperately need to work on on an urgent basis. Hope the message goes to right people.

Related news in Indian Express today

CAT asks railways to appoint visually impaired candidates

Delhi HC redefines the Scope of Powers of Chief Commissioner Disabilities

Dear Friends,

The Delhi High Court has been increasingly relying on the Court of Chief Commissioner for Persons with Disabilities (CCPD in short) for disposal of cases / writ petitions filed on the subjects involving issues related to disability rights. The High Court has been transferring petitions and asking parties to appear before the CCPD with directions to CCPD to decide the matter within a time bound manner.

We had seen earlier that the High Court sought intervention of the court of CCPD in coming to a conclusion on a matter related to nursery admission for children with disabilities under the RTE and. 

Now the Hon'ble Court has issued the mandamus thereby forwarding the PILs filed by Score Foundation & AICB  against DSSB and, Govt. of Delhi challenging  an advertisement issued by the Delhi Subordinate Services Selection Board (DSSSB) as the said advertisement did not provide reservation for the visually impaired on two posts, which are identified for this disability category. These posts are Special Educator and TGT Computer Teacher’ stenographer & telephone operator.

While passing an important order on 8th May, 2014 in the matter, the Delhi High Court ruled that the post of Computer Teacher in schools is deemed to be identified for reservation and appointment of the visually impaired. 

The  High Court issuing the mandamus that Chief Commissioner will decide the matter and issue directions in the matter pronounced an empowering interpretation of Section 58 of the Persons With Disabilities Act. The court stated that the Chief Commissioner for Persons With Disabilities is a “Statutory body” who has the powers to “Ensure that the rights made available to persons with disabilities are given effect to. Meaning thereby, those who are subject to the provisions of the Act are to be made accountable for their acts and if it is found that an organization is not implementing the provisions of the Act the said organization being compelled to do so”.

The judgment further goes on to state “this would mean that the Chief Commissioner for Persons with Disabilities has the statutory power to ensure that such posts which are identified for reservation concerning visually differently abled persons are filled up from the said/category of persons”.

While referring the two petitions in reference for final adjudication to the Chief Commissioner for Persons with Disabilities, The High Court directed that the CCPD would dispose of the matter in three days time and his orders would be complied with by all concerned without “demur”.

This important judgment will not only ensure equitable reservation for visually impaired persons in recruitments, but also provide much needed teeth to the Chief Commissioner for Persons with Disabilities to enforce his directions. Needless to say that this judgement can be cited in various states wherever the respondents organisations challenge the power of the Court of Commissioner Disabilities.

Click here  for the Common Judgement of the Hon'ble High Court in the following two cases clubbed together     (in PDF)     (in Word File) :

• WP (C) 1675 of 2014 titled Score Foundation and Anr Versus Min. of Social Justice and Empowerment & Others
• WP (C) 2848 of 2014 titled All India Confederation of Blind Versus DSSB and Others

The Chief Commissioner for persons with disabilities subsequently heard the matter and ordered the Ministry of Social Justice to reanalyse and submit a consolidated list of identified posts for persons with disabilities and ordered DSSSB to republish posts for, and reserve one percent seats for persons with visual impairment. 

Click here for the Judgement of The Chief Commissioner for Persons with Disabilities (Accessible typed PDF copy)    (Scanned copy of original Order)

Private schools also to provide Separate Toilet & Drinking Water under the RTE Act

Dear Friends,

Though the Court has clarified that separate toilets for boys and girls  as well as drinking water provisions are a must under the RTE wherever education is being imparted - be it private schools or the government. However, it would have been better to also specify that the toilets and drinking water provisions were made accessible to children with disabilities in the schools.

The Supreme Court has ruled that all schools must have separate toilets for boys and girls, and also facilities for water for drinking and other purposes.  The court's May 9 verdict has made it clear that these were integral to Right of Children to Free and Compulsory Education (RTE) Act, 2009.

"Separate toilets for girls and boys as well as availability of water are essential for basic human rights that enhance the atmosphere where the education is imparted. It can also be put in the compartment of basic needs and requirements in schools," said the court.


Related News:

Toilet, water must in schools: Supreme Court

Dhananjay Mahapatra,TNN | May 11, 2014, 04.14 AM IST

NEW DELHI: The Supreme Court has ruled that separate toilets for boys and girls as well as drinking water facility were integral to right to education and ordered that all schools, including those run by minority community, must make provision for them. 

A bench of Justice Dipak Misra and Justice V Gopala Gowda said the May 6 judgment of the 5-judge constitution bench, which had exempted the minority-run schools from admitting poor and backward students under the Right to Education Act, had not diluted the mandate of the RTE Act for toilet and drinking water facilities in all schools. 

The bench said separate toilets and drinking water facilities "are essential for basic human rights that enhance the atmosphere where the education is imparted. It can also be put in the compartment of basic needs and requirements in schools." 

The bench was dealing with an application filed by JK Raju complaining that though the Supreme Court in 2012 had upheld the validity of RTE Act, the Andhra Pradesh government had not implemented the direction for providing toilet and drinking water facilities in the state. 

The court in 2012 judgment in Society for Unaided Private Schools of Rajasthan had said ordered the schools across the country, irrespective of whether they were government, government-aided, private or minority, to provide toilets facilities for boys and girls, drinking water, sufficient class rooms, and teaching and non-teaching staff. 

The Andhra Pradesh government through advocate K Raghava Rao informed the court that there had been some compliance of the court's judgment as well as provisions of RTE Act, but sought more time to fully implement the directions. 

The bench said: "We fail to appreciate the AP government's explanation. When the young children go to school and they do not have essential facilities, drinking water and separate toilets and the requisite teaching and non-teaching staff who impart education subject-wise, in our considered opinion that would be causing a dent in the system of imparting education." 

"Once there is an impairment of imparting education, needless to say the country would not be in a position to produce the conscientious and progressive citizens for this country," it said. 

While directing the principal secretary to AP government to file a status report on the implementation of facilities regarding separate toilets for boys and girls and drinking water, the bench asked the education secretary to remain present in the court on July 7.

Source: Times of India 

Transgender is not merely a social or medical issue but a Human Rights issue - Supreme Court

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community (TGs hereafter) undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

The issue of transgender is not merely a social or medical issue but there is a need to adopt human right approach towards transgenders which may focus on functioning as an interaction between a person and their environment highlighting the role of society and changing the stigma attached to them. TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability. Up till recently they were subjected to cruelty, pity or charity. Fortunately, there is a paradigm shift in thinking from the aforesaid approach to a rights based approach. Though, this may be the thinking of human rights activist, the society has not kept pace with this shift. There appears to be limited public knowledge and understanding of same-sex sexual orientation and people whose gender identity and expression are incongruent with their biological sex. As a result of this approach, such persons are socially excluded from the mainstream of the society and they are denied equal access to those fundamental rights and freedoms that the other people enjoy freely.

The petitioners in this case titled "National Legal Services Authority versus Union of India and others … WP(C) No.400 of 2012 sought a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.

Siding with the petitioner, the court said, "There seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders. Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender.

The bench clarified that the rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to life in dignity and development himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual.” This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law.

The bench further said that by recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the TGs which legitimately belongs to them.

The court thus declared as under:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/ Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by  ijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities. 

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life. 

To access the detailed court judgement click on the link below:

Judgement dated 14 April 2014 in WP(C) No.400 of 2012 titled National Legal Services Authority versus Union of India and others … 

Related Media Coverage:

Times of India : Supreme Court recognises transgenders as "third gender"

The Guardian:   India recognises transgender people as third gender

BBC News:   India court recognises transgender people as third gender