Friday, October 21, 2011

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




Thursday, October 13, 2011

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.

Wednesday, October 12, 2011

We need sensitized and qualified Disability Commissioners in States

Dear colleagues,

The recent case of Ms. Nilima Surve (a visually impaired employee) is an example of how departments can label an employee with disability as "incompetent" and remove him/her from job on such grounds for no fault of his/her. The actual reason being the refusal of employer to provide reasonable accommodation to the employee with disabilities and refusal to accept the technological advances in the work environment. 

Ms. Surve was appointed as a Junior Clerk-cum-typist in Chetana's Hazarimal Somani College of Commerce at Bandra (E), Maharastra in November 2006, and was dismissed from service in March 2007 on the grounds that her work was unsatisfactory and there were typing errors in her work. The employee asked for screen reading software in the computer so that she could do the job effectively. The college, however, not only refused to provide the software but even refused to allow her to organize one on her own! 

The matter was taken up with the Court of Commissioner -Disabilities who mentioned the need of software and technology to avoid typing errors in future but did not bind the employer to provide one for the employee and remarked, "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software." while upholding the  termination of the employee vide its order dated 30 October 2010 ! 

Left with no option after such an insensitive order from the Commissioner disabilities, Ms. Surve then approached Mumbai High Court through a writ petition challenging the impugned order.  The bench on 10th October 2011 giving relief to Ms. Surve directed the State Government to make an exception and provide her with the devices, including gadgets and software to enhance her performance.

The root cause of the problem

(A) Incompetent and Unqualified Persons appointed as Commissioners-Disabilities

This is important to stress here that the Commissioner for Persons with Disabilities are appointed under sub-section (1) of section 60the Persons with Disabilities Act 1995; which is reproduced below for the benefit of readers:

Extract from the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 -

"60. Appointment of Commissioners for persons with disabilities.- (1) Every State Government may, by notification appoint a Commissioner for persons with disabilities for the purpose of this Act.
(2) A person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.
(3) The salary and allowances payable to and other terms and conditions of service (including pension,
gratuity and other retirement benefits) of the Commissioner shall be such as may be prescribed by the
State Government.
(4) The State Government shall determine the nature and categories of officers and other employees required to assist the Commissioner in the discharge of his functions and provide the Commissioner with such officers and other employees as it thinks fit.
(5) The officers and employees provided to the Commissioner shall discharge their functions under the general superintendence of the Commissioner.
(6) The salaries and allowances and other conditions of service of officers and employees provided to the Commissioner shall be such as may be prescribed by the State Government.

61.Powers of the Commissioner.- The Commissioner within the State shall-
(a) coordinate with the departments of the State Government for the programmes and schemes for the
benefit of persons with disabilities;
(b) monitor the utilisation of funds disbursed by the State Government;
(c) take steps to safeguard the rights and facilities made available to persons with disabilities;
(d) submit reports to the State Government on the implementation of the Act at such intervals as that Government may prescribe and forward a copy thereof to the Chief Commissioner."

However, the State Governments rarely bother to implement section 60 (2) in right spirit which mandates that  a person shall not be qualified for appointment as a Commissioner unless he has special knowledge or practical experience in respect of matters relating to rehabilitation.  Mostly the civil servants of the state are appointed or given extra charge of Commissioner- Disabilities. These officers are expected to be custodians of the legal duty to safeguard the rights and interests of the persons with disabilities. Since they have no special knowledge or interest in respect of matters related to the rehabilitation of persons with disabilities, they are bound to commit such blunders and display such apathy and negative attitudes. 

As legal practitioner, I have often seen that the work of the State Commissioner Disabilities is delegated to District Magistrates/District Commissioners in the districts as an additional charge. Therefore, there is no check whether the appointed officer is aware about disability rehabilitation issues. The whole system gets apathetic because often they have no time, knowledge, sensitization or interest to do justice to the additional duty!


(B) Lack of clearly written instructions for employers

Second lesson is lack of information and instructions to the recruiting/employing departments about the rights of the employees with disabilities at workplace. They don't seem to be aware that providing software, barrier free environment, assistive aids and devices that provide a level playing field are to be provided at the cost of the Government! 

Section 42 of The persons with Disabilities Act 1995 clearly provides as below: 

"42. Aids and appliances to persons with disabilities.- The appropriate Governments shall by notification make schemes to provide aids and appliances to persons with disabilities."

Similarly Section 48 of the Act provides that the appropriate government and local authorities shall promote and sponsor research, inter alia, in the following areas:

(a) prevention of disability;
(b) rehabilitation including community based rehabilitation;
(c) development of assistive devices including their psycho-social aspects;
(d) job identification;
(e) on site modifications in offices and factories


The UN Convention on the Rights of Persons with Disabilities that India is signatory to has defined "Reasonable accommodation" as necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;

Article 27, UNCRPD -"Work and Employment" mandates the states to ensure that reasonable accommodation is provided to persons with disabilities in the workplace;

And making provisions for a level playing field would be covered within the meaning of Reasonable Accommodation.

The general trend

The right to technology and assistive aids and devices for a level playing field, in other words "reasonable accommodation" at work places is increasingly gaining center-stage with a humongous number of persons with disabilities claiming their right to employment.   There is a 3% minimum reservation for the persons with disabilities in India in the government sector and as per law, those selected on their own merit by contesting against the general list can not be adjusted against the reserved quota of jobs. This means a large number might find a good career in the Govt. jobs.

However, the employers - both in government and private  sector are not aware and sometimes even when aware are reluctant to provide the necessary level playing field (read reasonable accommodation) to the workers with disabilities. I know of several blind employees in the banks who were employed as Clerks, Stenos etc however, continue to sit idle since the banks have moved to computerization and there is hardly any job assigned to them. The banks have not updated themselves with the required technology to put the services of the visually impaired employees to use. The employees feel redundant and the department feels the employee is good for nothing! Since these banks are run by government they can not turn them away, but such situation is neither in the interest of employees nor the bank. This also sets a wrong precedent in the eyes of the senior management in banks about the utility of  new employees with disabilities who might fill the reserved vacancies in future.

The road ahead



The lessons from these cases only give us strong reminders that the State implement the Disabilities Act properly and stop the lip service. It is an ideal opportunity that instead of civil servants and government officers, the states recruit qualified persons with knowledge and experience of disability rehabilitation for the posts of Commissioner or District Commissioner/Additional Commissioner under the Disabilities Act and immediately put a stop to the current practice of appointing unqualified officers.

Secondly it is high time that the Government issues clear, unambiguous instructions /notification highlighting the equipment /softwares / devices etc required for each disability for each post besides a barrier free environment based on Universal design in each office/workplace.

Similar notifications must be issued/adopted by States to ensure that the Persons with Disabilities do not face such hostile environment and get a level playing field/reasonable accommodation so as to contribute to their maximum for the growth of their career and the development of nation.

Here are few links to the news coverage of Ms. Surve's case.

regards
Subhash Chandra Vashishth






MUMBAI: In a victory for visually impaired Nilima Surve who was fired by a college trust for typing errors, the Bombay high court on Monday directed the state government to make an exception and provide her with devices, including gadgets and software, to enhance her performance.

A division bench of Chief Justice Mohit Shah and Justice Roshan Dalvi also directed the college trust to permit Surve to resume work.The judges were hearing a petition filed by Surve challenging an order dated October 30, 2010, by the commissioner for disabilities upholding her termination.

Surve was appointed as a junior clerk-cum-typist at Chetana's Hazarimal Somani College of Commerce at Bandra (E) in November 2006 and dismissed in March 2007 on the grounds that her "work was not satisfactory and there were typing errors".

Her advocate Chetan Agrawal said the commissioner, in his order, acknowledged the use of software to avoid mistakes in future but the college refused to provide or allow installation of the software provided by her.

The judges, in December 2010, had observed that the "disabled need support, not sympathy".On January 15, the court isued a general order directing the state government to provide special gadgets and software to its employees, including those in public sector undertakings, universities and colleges.

On Monday, the judges observed that the state will take time to implement their directive. Justice Shah said, "There is no reason why as a special case such devices for the petitioner should not be provided in the meantime.'' 

The judges have asked Surve to send a requisition to the government for the devices and the software required by her and directed the state to make them available to her three weeks thereafter. "In short, the government will immediately make payment to the supplier for such gadgets or devices and software which the petitioner requires for enhancing her performance in typing and other desk work."

Bombay & Chennai HC allow admission to disabled students in MBBS

Dear Friends,

In two different cases, the Bombay and Chennai High Courts have directed the MCI to give admission to students with disabilities in MBBS course. Here are both the cases:

Case No. 1 at Mumbai

Published: Thursday, Aug 5, 2010, 1:44 IST
By Mayura Janwalkar | Place: Mumbai | Agency: DNA  

Just days after it told the state government that the latter needed to change its mindset in accommodating the disabled, the Bombay high court on Wednesday directed the state to grant a 19-year-old physically challenged student provisional admission to an MBBS course.

Khan Mohammed Tarique Mehmood, who has a lower limb disability, had moved the high court after he was denied admission to the course in the physically handicapped category.

The Director of Medical Education and Research (DMER) had refused admission to Mehmood on grounds that he suffered from a disability of more than 75%. As per the Medical Council of India (MCI) rules, a person with locomotive disability of lower limb (more than 50%) can not apply for MBBS.

However, in his petition before the court, Mehmood had contended that his disability was certified as 50% by the All-India Institute of Physical Medicine and Rehabilitation (AIIPMR). Moreover, Mehmood had also stated that he stood seventh in the state in the handicapped category in the common entrance test conducted by the government.

According to Mehmood, the DMER’s decision was contrary to the certificate issued by the IIPMR, which is a central government institute named in the DMER’s admission brochure. A bench presided by chief justice Mohit Shah admitted the petition and granted provisional admission to Mehmood in an interim order.

On August 2, the court granted provisional admission to a visually challenged girl who wished to pursue a career in physiotherapy.

-------

Case No. 2 at Chennai


Disabled girl wins court battle for MBBS admission
TNN Oct 2, 2011, 03.31AM IST

CHENNAI: In a major victory, P Divya of Royapuram has won a court case which will now enable disabled students across the state - other than those with locomotor disability in the lower limbs - to seek admission for an MBBS course. The Madras high court has directed the directorate of medical education (DME) to provide Divya admission to the MBBS course for this year.

After applying for a medical seat under the special category (orthopaedically physically disabled), Divya attended counselling on June 30, 2011. Medical council of India (MCI) regulations stipulate that only people with 40-70% locomotor disability in the lower limbs are entitled to 3% reservation for MBBS admission under the Persons with Disabilities Act (Equal Opportunities, Protection of Rights and Full Participation Act), 1995. Though she produced a disability certificate from the regional medical board, government hospital, Chennai, it was not accepted by the selection committee.

"They did not give us a proper reason for rejecting her so we filed a writ petition," counsel for petitioner R Prabhakaran said. When the petition came up in the HC, Justice D Hariparanthaman had directed DME to ascertain Divya's disability and also ordered that one seat be kept vacant. She was sent to another regional medical board at GH, which gave a certificate on July 19.

This certificate said she suffered from a spinal deformity due to which she had a torso imbalance and a total physical permanent disability of 46%. If the certificate was read to the effect that Divya suffered locomotor disability above 40%, she was entitled to admission under the 3% reservation category, he added.

Passing orders, Justice D Hariparanthaman said the reservation provided only to persons with locomotory disability in the lower limbs was in violation of the Persons with Disabilities Act. He quashed the notification and directed MCI to include other categories of disabled persons, more particularly those with disabilities above 40% in its regulation.

Bombay High Court Asks Government to Change its mindset on PH


Change your mindset on physically challenged: Bombay high court tells govt

Published: Tuesday, Aug 3, 2010, 2:29 IST
By Mayura Janwalkar | Place: Mumbai | Agency: DNA  


Krutika Purohit, 17, had nursed the dream of being a physiotherapist since she was nine.

However, with her visual disability, clearing the MHCET for pursuing a degree course in physiotherapy with a good score and obtaining “provisional admission” to the course, has been no cakewalk.

Purohit, perhaps the first visually challenged student to get admission into the four-year degree course in physiotherapy, found an ally in the Bombay high court recently.

The court told the directorate of medical education and research (DMER) that earmarking seats under Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, serves no purpose without a change in mindset.

"This mindset has to change. You have to feel from within. Every family has a person with some disability. You have to lend a helping hand," justice SC Dharmadhikari said. "They (persons with disabilities) too are mainstream students. You (state government) are not lowering any standards for them.”
Purohit and the Indian association of visually impaired physiotherapists had moved the high court after Purohit was barred from taking MHCET exams owing to her disability.

Although the court allowed Purohit, a Khar resident, to appear for the MHCET examination on April 23, her way to becoming a physiotherapist was far from clear. Purohit's advocate Kanchan Pamnani, herself visually impaired , said the DMER was wrongly applying rules to the physiotherapy course.

The MCI rules say a person with locomotive disability of lower limb (50%-70%) can apply for MBBS courses. But in this case, the authorities did not apply their mind if a visually impaired person could study physiotherapy.

Assistant government pleader GW Mattos said the government would take progressive steps but Purohit's case should be referred to the council of the Maharashtra university of health sciences.

The court also directed the chief commissioner of disabilities to issue directions to universities within two months.

Reservation for Mentally Challenged Persons



Posted: Wed Jul 21 2010, 02:46 hrs

Why isn’t there any reservation for mentally retarded people in Mohali’s Aerocity project? Raising this vital question a 39-year-old resident of Punjab, who has been suffering from mental illness for the last 15 years, has moved the Punjab and Haryana High Court demanding separate reservation for mentally retarded persons other than the reservation for physically disabled.

Taking stock of the petition and considering it to be a question of public importance, Justice Surya Kant has issued notices to the state and referred the petition to be taken up as public interest. Hearing on the plea has been deferred to August 11. Arguing on behalf of petitioner Gurcharan Singh, advocate R S Bains has sought directions to the state of Punjab to “to include mentally challenged ain the category of disabled persons since the Act does not differentiate between the physically and mentally disabled as far as affirmative actions by the state are concerned”. Vehemently arguing and terming the reservation policy as “non violative” of the guidelines laid down, Bains has sought directions “to modify the consolidated reservation policy for allotment of houses and plots for physically handicapped or the visually impaired”. The petitioner has also demanded that a “fresh and comprehensive scheme for fulfilling the mandate of Disabilities Act” shall be formulated.

The petitioner has been suffering from mental illness since 1985 and is undergoing treatment at PGIMER, Chandigarh, could not apply under the reserve categories due to the anomaly in the policy and the advertisement and had to apply in the general category.

“This relief shall be provided to all the similar situated persons and also to earmark at least one seventh of the plots (category wise) exclusively for the mentally ill persons (out of the three percent plots collectively reserved for physically handicapped/ blind persons) for which the authorities have invited applications in the Aero City, Mohali and for grant of any other relief,” Bains demanded. The petitioner has demanded separate reservation for mentally ill persons other than the reservation already prescribed for physically disabled persons.