Friday, November 13, 2009

Railways continues to discriminate against Persons with Disabilities

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

Monday, November 9, 2009

Awaited Judgement on Driving Licences to the Deaf

Dear All

I am eagerly waiting for the judgement but each time the Learned ASG has been seeking time on behalf of Govt. of India to frame rules!

Waiting for the day when he will come in the court with amended rules!

regards

Subhash

India's deaf may get licence to drive

The Government of India is considering issuing driving licences to hearing impaired people by amending the Motor Vehicles Act

Published on 11/9/2009 2:08:16 PM
By Kanu Sarda

New Delhi: India is one of the few countries in the world where the hearing impaired are not allowed to drive. But this may change soon, with the government informing the Delhi High Court it is considering changing its rules.

"We are considering issuing driving licences to hearing impaired people and thinking of amending our rules and regulations," Additional Solicitor General AS Chandiok informed a division bench of the High Court comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar.

The court has granted the government three months' time to take a decision and posted the matter for December 16.

At present, the Motor Vehicles Act prohibits the deaf from obtaining a driver's licence on the ground that they could be a source of danger to the public. There is around 50 million hearing impaired in India.

The court was hearing a public interest petition by the National Association of the Deaf (NAD), seeking a direction to quash the requirement of having no hearing impairment for the issuance of a driving licence.

According to the NAD, the deaf are allowed to drive all over the world except in 26 countries including India.

"The only reason why India is not willing to issue licences is that Indian vehicles lack the special gadgets that other countries' vehicles have. But we are considering the same and hoping that we will be able to amend some rules," Chandiok informed the bench.

According to medical experts, those who can hear up to 60 decibels with the use of a hearing aid can be permitted to hold a driving licence for private vehicles, while those with a hearing level of up to 40 decibels with hearing aid can be allowed to drive commercial vehicles.

According to the petitioner, even the Delhi Police website indicates that deaf people can drive and states, "There is no reason why a deaf person cannot drive a private motorcar. However, the possibility of additional rear vision mirrors may need to be considered."

Delhi High Court relief to disabled quota suspended

Trying to know more about it, hence can't comment unless i see the order for myself!
regards
Subhash

Source: IANS
New Delhi, Nov 6 (IANS) The Supreme Court Friday suspended a Delhi High Court order to the union government to provide three percent reservation in state jobs to physically challenged persons as per a special law that accords one percent quota for visually impaired candidates.

A bench of Chief Justice K.G. Balakrishnan and Justice P. Sathasivam and Justice Deepak Verma suspended the high court order saying: “We are staying the high court directions. They are prima facie incorrect.”

The bench, however, clarified that it was not suspending the law for three percent reservation in state jobs to physically challenged persons, the Disabilities Act.

The apex court gave the order on an appeal by the union government challenging a Delhi High Court order, which had directed the centre to fully comply with the Disabilities Act and reserve three per cent seats for diabled persons according to its 1996 notification.

While granting the relief to the union government, the bench refused to heed the plea of National Federation of the Blind which wanted that the High Court order be allowed to operate.

Advocate Pratiti Rungta, himself visually impaired, who appeared for the federation, opposed the government’s appeal but the bench declined it saying “it is not possible to continue with the high court order.”

Rungta’s failed to convince the bench that no recruitment has been made under the Act.

Additional Solicitor General Indira Jaising contended that the directions of the high court were not workable.

The apex court had earlier directed the government to file a detailed status report regarding the extent to which the posts had been identified and filled up and also what steps had been taken to fill up the vacancies that had arisen since the Act has gone into force in 1996. The government is yet to file the status report.