Not convinced, Court directs second revision in DoPT Memo 29.12.2005 on Reservation for PwDs

Dear Friends,

Post the directions of the Hon'ble Delhi High Court in its judgment dated 17.07.2014 to the DoPT to carry out further modifications in Para 15 of the OM dated 29.12.2005  so that the directions of the Hon'ble Supreme Court to compute 3% of reservation on total number of vacancies in the cadre strength can be implemented, the DoPT has been playing tactics to avoid granting the dues to the stakeholders. 

Yesterday, i.e. on 07th Jan 2015, the DoPT posted on its website at link: Available OM for Persons with Disabilities  the following memorandum carrying out some "further" (second in series) modifications in to its earlier Comprehensive Memorandum on Reservation for Persons with Disabilities : 

Click here for a screen reader accessible copy of the above memorandum.  For all other memorandums by DoPT related to the disability subject click here: Available OM for Persons with Disabilities.

Objective behind the amendment
The objective of this amendment was to harmonise the Comprehensive Memorandum on reservation to persons with disabilities dated 29.12.2005 with the recent clarification of the Hon'ble Supreme Court  in Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr Vs. National Federation of the Blind and Others which I covered in my blog entry of Dec 10,  2013 titled Physically challenged Vs. Logically Challenged. 

Does this amendment bring anything new to the stakeholders?
Personally, I failed to find any major difference in the interpretation of said para 14 after two amendments at the direction of the Courts - it is nothing  but merely playing with the words. In nutshell, after a long battle in the court of law, the DoPT just added, "Separate rosters for Group 'A' posts and Group 'B' posts in the establishment shall be maintained."

Was this the intention of the legislature? Did the clarification of Hon'ble Supreme Court really meant this? Is DoPT really intending to giving the disabled their dues as per the spirit of the law and the clarification of the Hon'ble Supreme Court? These are the questions that the Babus of DoPT and Hon'ble PM Modi has to answer. People with Disabilities aren't happy with this attitude nor the way the disability subject is being handled by the departments particularly DoPT. 
  

Data collection indicates only 100 out of 1300 schools are disabled friendly

This is further to my earlier post dated 07th May 2013  wherein I had shared the order of the Hon'ble Delhi High Court directing the private schools to provide barrier free infrastructure and also 26th Feb 2014. Now despite the two cases, the government of Delhi has filed a status report in the Delhi High Court indicating that only 100 schools have some facilities for disabled children from amongst 1300 private unaided schools.

Here is the news report published in Indian Express:

Govt: Only 100 city schools are disabled-friendly

The Director of Education (DoE) has been informed that less than 100 of 1,300 private unaided schools in the city have facilities to cater to students with special needs, with most only catering to children suffering from lack of vision of locomotor disabilities.

Only a handful mainstream schools are available for children with hearing impairment and mental disabilities, data submitted by the DoE to the Delhi High Court on Wednesday stated.

A bench of Justices S Ravindra Bhat and Vipin Sanghi had earlier directed the DoE to conduct a study on disabled-friendly facilities in the private unaided schools. The directions were issued in a PIL field by Pramod Arora, a parent of a differently-abled child.

According to the DoE, only 800 schools had submitted data on the facilities available for children with special needs, of which 54 catered to locomotor disabilities and 34 to hearing impairment. In contrast, only 10 schools had facilities to educate visually challenged children and 20 for children with mental retardation.

Interestingly, the DoE noted, a sizeable number of these schools are located in South or Southeast Delhi, or in West Delhi. Very few schools with facilities for the disabled are located in North and East Delhi, the data showed.

Source: Indian Express

Deptt of Ex-Servicemen Welfare gets another rap from Supreme Court for denying benefits to disabled Soldiers

Supreme Court rejects Centre’s appeal denying benefit to disabled soldiers

Written by Utkarsh Anand | New Delhi | Posted: December 12, 2014 9:52 am

“They are in the line of fire. They sacrifice their life for you and for us. This is the least you could do for them.” It was the message by the Supreme Court to the Centre, which was fighting against the ex-servicemen of Army over a modest increase in their disability pension.

Coming to the rescue of around 15,000 soldiers, the court rejected an appeal by the government against an order of the Armed Forces Tribunal (AFT), which had extended the benefits of an extra amount in their pensions on account of disability due to service conditions.

On Wednesday, a bench led by Chief Justice of India H L Dattu expressed its disgruntlement over the government’s insistence on denying the benefit to the soldiers on the ground that it would burden the exchequer with an additional Rs. 1500 crore.

“So what? The government can have at least this much of budget for its soldiers who are dying for the people of this country everyday. What is the point of having these memorials and placards saluting our defence personnel if you litigate agianst the disabled soldiers till the Supreme Court. You should pay them,” said the bench, also comprising Justices Madan B Lokur and A K Sikri.

With the writing on the wall, the government’s law officer chose not to argue the appeal further and said they would comply with the order. The bench disposed of around 880 appeals against the AFT order on this issue.

Among those who will be benefited by this order is also Army’s former Vice-Chief Lt Gen Vijay Oberoi, who lost his leg in a gun battle in the 1965 Indo-Pakistan war. Oberoi soldiered on without any financial benefit whilst in service but was categorised as 70 per cent disabled when he retired as the army’s vice chief in 2001.

When the 5th Pay Commission enhanced this to 75 per cent, the Ministry of Defence (MoD) refused to pay. On Oberoi’s petition, the Chandigarh bench of the AFT, in 2010 allowed “broad-banding” benefits to all disabled personnel irrespective of when they left service.

Under the “broad-banding” policy, three bands were to judge disability across the board. Up to 50 per cent disability, a person was to be given the benefits of a 50 percent disability holder; a person with 51-75 per cent disability was to be given 75 per cent disability benefits; while a person with 76-100 per cent disability was to be given 100 per cent disability benefits. The policy was introduced to avoid subjectivity and variance in calculating disability percentage.

This broad-banding was accepted and implemented by the MoD but the benefits were granted to only those who were removed from service by the government on medical grounds, and not to those who retired after their full service. The AFT removed this anomaly and held that all the soldiers shall get the benefit under the policy.

The Department of Ex-Servicemen Welfare (DESW), which comes under the MoD and looks into the grievances and other pension matters of retired defence personnel, filed an appeal against the AFT judgement in February 2012 despite an adverse opinion by the Army Headquarters.

Source: Indian Express

Chief Commissioner Disabilities directs UPSC to withdraw discriminatory performa

UPSC asked to withdraw ‘discriminatory proforma’

The Court of Chief Commissioner for Persons with Disability has directed the Union Public Service Commission (UPSC) to withdraw its “discriminatory performa”. It has directed the UPSC to refrain from asking persons with disabilities to submit photographs showing their disabilities and to consider the ‘permanent disability certificate’ issued from a government hospital as a valid proof.

The action comes following an intervention by Dr. Satendra Singh, who has been working in the area of disability rights and had written to the UPSC against “its discriminatory policies”.

“Despite having a valid disability certificate, the UPSC asks all applicants to use their own format for disability certificate. This is against the existing guidelines but nobody challenged the UPSC. Moreover, the format asks applicants to paste ‘photo showing disability’, which is not only discriminatory but also infringement of right to privacy. An example – how can an amputee female attach her photograph?’’ asked Dr. Singh.

He added that in a follow-up to his complaint, he also quoted the Amended Persons with Disabilities Rules 2009, which were circulated to all the Ministries/Departments (Rules 3 to 6 of Chapter II relating to Disability Certificate as per Ministry of Social Justice and Empowerment’s notification in November 2013.

“The amended rules show the format to be used for disability certificate and none of them asks ‘to showcase disability’,” said the physician.

He further pointed out that Rule 6 of the same order clearly states that a certificate issued under Rule 4 is to be generally valid for all purpose. “When a person already has a valid government certificate of permanent disability why does he have to get his disability certificate again in the prescribed form of the UPSC?’’ questioned Dr. Singh.

Source: The Hindu

SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well

Dear Colleagues,

The observations of a 3 member bench comprising Hon'ble Chief Justice R.M Lodha,  Mr. Justice Kurian Joseph and Mr. Justice Rohinton Fali Nariman on 12 September 2014 while hearing a fresh appeal titled Union of India and Others Versus National Confederation for Development of Disabled and Anr speak volumes about the attitude of the bureaucracy towards implementing reservation in jobs for persons with disabilities. The matter was widely reported in media. Appended towards the end of the posts are the two major coverage by PTI and Indian Express on the subject for your ready information.

I have been receiving several requests from several Government officials including State Commissioners for Persons with Disabilities, Stakeholders and friends in the NGOs to write a brief on the judgement, hence this post. 

For some strange reasons, the bench though dismissed this appeal arising out of a Bombay High Court judgement dated 04 Dec 2013 in PIL No. 106/2010, but did not record their reasons for dismissing the appeal perhaps to save the Union Government from further embarrassment. What appeared in the media was thus obiter dicta. i.e. what the Hon'ble Chief Justice commented during the hearing in the court. This did not come in the formal written order. For benefit of readers, you may see the Order dated 12.09.14 by clicking here (Word Format /  PDF Format)

In the instant case at Bombay High Court, the  petitioners National Confederation for Development of Disabled had prayed for writ of mandamus to direct the respondents to appoint the disabled persons in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) in Indian Administrative Services posts to be filled up either by promotion from the State Civil Services or by selection from persons who hold gazetted posts in connection with the affairs of a state but are not members of the State Civil Services, as per their entitlement retrospectively from 1996 and to comply with the said provisions hereafter.

In this regard please refer to my earlier blog entry titled Physically challenged versus Logically Challenged dated  10 Dec 2013 wherein I had also posted the Judgement for ready reference. The same can be accessed by clicking link below:

Judgement of Mumbai High Court in PIL 106/2010 titled National Confederation for Development of Disabled and Anr Versus Union of India and Ors. (PDF file that will open in a new window). Also available on High Court website.

Thus in nutshell, the Hon'ble Supreme Court has upheld the above Judgement of the Bombay High Court meaning thereby that the reservation provisions of Section 33 will extend to all appointments in all groups i.e. A,B,C and D and appointment is not restricted to direct recruitment only. It would also include promotion, deputation etc. 

I had in my research work carried out in 2008-09 for HRLN  which later became a part of a book titled "Harmonizing Indian Domestic Laws with UNCRPD"  I had indicated that the reservation for persons with disabilities is to extend to all form of appointments however, the babus of the DoPT and MSJE continue to force upon the limited interpretation of the provisions. I am glad that the Hon'ble court subsequently upheld it in this above matter. I hope this broad interpretation - the will of the legislature while enacting the disabilities Act 1995  - will be preserved in the new draft Disabilities Act as well.

regards
Subhash Chandra Vashishth
Advocate


News Coverage

SC clears 3% reservation for disabled in jobs, promotions  (Indian Express)

Written by Utkarsh Anand | New Delhi | Posted: September 12, 2014 5:44 pm | Updated: September 12, 2014 9:59 pm

The Supreme Court on Friday ruled in favour of three per cent reservation for differently-abled candidates in civil services, not only at the stage of their  appointments but also for departmental promotions.

Giving a level-playing field to more than four crore people with disabilities in India, the apex court held that the Centre, states and Union Territories were obligated to implement the rules of reservation for this class in the matters of appointment, selection, direct recruitment, deputation and also for promotions. It asked the Centre to show a big heart and give the differently-abled people their due in all central and state government jobs.

A bench led by Chief Justice of India R M Lodha reiterated its earlier verdict that the principle of not exceeding 50 per cent reservation would not be applicable while granting quota for differently-abled people.

The bench expressed its displeasure at the government seeking to adopt a hyper-technical approach, as its counsel pressed that three per cent reservation could be given only at the stage of appointment but not for promotion. The Persons With Disabilities Act provides for three per cent quota for the differently-abled people.

“Appointment will include promotion. You are frustrating the very reservation policy for the disabled — the class for which this beneficial piece of legislation was enacted, by arguing against it,” the bench, also comprising Justices Kurian Joseph and Rohinton F Nariman, told Additional Solicitor General Pinky Anand.
Anand sought to point out that the reservation at the stage of promotion may lead to huge resentment, especially among employees in Group A and Group B categories, since many beneficiaries may get ahead of their seniors.

She was placing an appeal against the Bombay High Court order, directing the government to implement three per cent reservation for the differently-abled in civil services recruitment, besides granting the benefit in the matter of promotion too. This order was issued on a PIL filed by the National Confederation for Development of Disabled, which was represented by senior advocate R S Suri and Arpit Bhargava in the apex court.

The bench, however, told the Additional Solicitor General that the objective of the reservation policy, as envisaged by Parliament, was unequivocal that the differently-abled people must get the benefits without technical impediments.

“Once Parliament prescribes for reservation in appointments, it will cover direct recruitment, promotion and even deputation. Our experience tells us that it is one legislation that has never been effectively implemented. In any case, it is a beneficial legislation and you should interpret in a manner so that they get the benefits,” said the bench.

At this, the Additional Solicitor General agreed with the bench and conceded not to press the appeal any further. The court then dismissed the appeal. The three per cent reservation, as clarified by the apex court in its last year’s judgment, is to the extent of one per cent each for the blind, hearing and speech impaired, and persons suffering from locomotor disability or cerebral palsy. The Supreme Court had in October last ruled in favour of a minimum three per cent reservation for them in all central and state government jobs. Regretting the denial of opportunities to the differently-abled people in the country, the court had quashed the Centre’s 2005 office memorandum and the government’s claim that the reservation policy not only had to be different for Group A, B C and D posts but the quota had to confine to “identified” posts. 

Source: Indian Express

3% quota must for disabled people in all govt jobs including IAS: Supreme Court
PTI | Sep 12, 2014, 06.17PM IST

NEW DELHI: The Supreme Court on Friday held that three per cent reservation for disabled people be given in all categories of government jobs including in appointments and promotions to IAS, while pulling up the Centre for "blocking" the very purpose of this empowering legislation by opposing it.

A bench headed by Chief Justice R M Lodha said that people with disabilities have not got their due in the last 19 years despite the framing of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which was passed in 1995.

Additional solicitor general Pinky Anand, appearing for the Centre, contended that reservation cannot be given in case of promotion to Group A and Group B officers category as it is not a case of appointment. The bench, however, observed that appointment is a broader concept and the Centre is giving a narrow interpretation of it.

"You are frustrating the very reservation policy and cause of class for which Parliament passed the law," the bench said.

"For the last 19 years it is not being implemented and the class, for which the legislation was made, had not got benefited as it should have," the bench said.

The court dismissed the petition of the Centre challenging an order of Bombay high court which had directed the Centre and the Union Public Service Commission to implement 3 per cent quota in direct recruitment and promotions for the disabled in the IAS.

Source: Times of India