Wednesday, December 25, 2013

Loss in earning capacity and not degree of disability is considered in deciding compensation: Madras HC

Madras High Court has while hearing an appeal against a poor disability compensation in a motor accident claim case recently held that while computing compensation in motor accident cases, the loss of earning capacity of the victim should outweigh the extent of disability.

Enhancing the compensation by 2 lakh to the injured driver, Justice R Mahadevan said,  “In cases of compensation, it is not the disability, which could be partial or total, alone that matters. It is the loss in earning capacity as a result of the accident that is to be considered.”
 
In the instant case R Murali, driver of a concrete mixing vehicle, met with an accident in January 2009 and suffered injuries in hip, right leg and ankle. He claimed to have suffered 100% loss in his earning capacity and sought appropriate compensation along with 12% interest.  However, as the disability certificate issued by a doctor pegged the percentage of his disability at 60%, the Deputy Commissioner of Labour awarded only Rs 3.12 lakh as compensation, by fixing his monthly income at Rs 4,000.

The driver, aggrieved by the poor compensation package, approached the high court.  Opposing enhancement of compensation, counsel for the insurance company said Murali could walk and his disability was only 60%. Even though he is incapable of driving, he can go for some other job, the insurance firm argued and sought dismissal of the appeal.

Justice Mahadevan, disagreeing with the findings of the Deputy Commissioner of Labour as well as the submissions of the insurance company’s counsel, said they had failed to discuss the applicability of “total disablement”.

The judge while distinguishing “disability” in medical parlance and “disability” vis-a-vis earning capacity, said, “Considering the injury on the hip, right leg and ankle, Murali can no longer drive a vehicle as he cannot exercise absolute control over it.”

Source: Times of India

Tuesday, December 10, 2013

Physically Challenged Versus Logically Challenged

Dear Colleagues,

There is an inherent bias in the executive when it comes to giving equal opportunities to those living with disabilities in employment despite the tall claims on paper by the Government and harshest judgements from the Courts criticizing the executive and the government. Now whether it is born out of age old mis-beliefs, myths and resultant negative attitudes towards the disabled or an utter lack of awareness about the possibilities and potential of those living with disabilities - the result is insurmountable barriers for disabled people on every step of their lives.

A committee of High Court Judges decides that those with vision impairments and those with hearing and speech impairment can not function as Judges (Blind/deaf can't be judges, say govt and HC; PIL questions it, the Babus decide what a person with disabilities is capable of, without even knowing a, b, c of disability! And these decisions are taken in solo without involving those with disabilities or their organisations. 

We recently saw certain candidates with disabilities who passed the UPSC's Civil Services Examination way back in 2007 -08 continue to await allocation of posts! The principles of natural justice particularly in a democratic set up as ours, demand that an opportunity of being heard be given to those affected by the proposed action. This is amazing way of functioning displayed by the Indian bureaucracy where the bureaucrats and not the law decides whom they want to allow in their gang!

Section 32 and the List of Identified Jobs


The List of Identified Jobs for persons with disabilities which had been prepared by the Babus with some experts from field also on the panel has done more harm than good for persons with disabilities of this country.  The list has been used to deserving people out by State governments from several key posts. The successive committees of babus have not allowed the stakeholders to even know what was added or removed in the successive list of jobs published through gazettes. Each time a list of published, the earlier was removed from the website, without even explaining what new post(s) have been added or deleted from the list and the basis for the same! And this business of identified jobs has been in business since 1989 even before the disabilities Act came in to force.

The list doesn't seem to have applicability in all the states and union territories since so many states (read babus) have published their own selective lists of posts (read... unimportant posts) jobs, keeping the posts to the minimum that could be held by  persons with disabilities. Certain states and Ministries have been on an exemption seeking spree under the proviso of Section 33 of the Disabilities Act. For instance the post of Judge has been identified in the Central List whereas states like West Bengal, Kerala, Tamil Nadu and Uttar Pradesh seems to have taken regressive steps by obtaining exemptions of judicial posts from the purview of section 33 (reservation in favour of persons with disabilities particularly against the candidates with visual and hearing and speech disabilities.)  

3% reservation in promotion under Section 33 

Similarly, by twisting the interpretation of section 33, the Babus have for long denied the 3% reservation in promotional posts to employees with disabilities particularly in group A and B posts citing various untenable reasons.  


Now the Bombay High Court has dealt with the issue in a PIL filed by an NGO - National Confederation for Development of Disabled. The petition pointed out that the ratio of percentage of direct IAS to IAS by promotion or election was 67% : 33% in Maharashtra state at present. Thus effectively, out of 100 new posts, 67 were being filled by people who have been directly recruited in the IAS category and 33 posts were filled by state civil service officers.  Thus the reservation in 33% promotional posts was being denied to the disabled officers from State Civil Services (for the impugned executive orders provide for no reservation in promotion in Group A and B posts!).

In a remarkable judgement the Division Bench of Chief Justice Mohit Shah and Justice M S Sanklecha has on 04 December 2013, directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota i.e.  now reservation would be applicable on all the 100 posts.   
The court held that it is clear  that  reservation has  to  be computed with  reference to  total  number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion.  Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. [Click here for the copy of Bombay High Court judgement in PIL No. 106 of 2010  titled National Confederation for Development of Disabled and another versus Union of India and ors.]

Manner of computation of reservation under Section 33


The manner of arriving at or computing 3% reservation in various posts has not been spelled out in the Act. and thus in exercise of the powers conferred by sub-sections (1) and (2) of Section 73 of the Act, the government (read babus) used their discretion to spell it out through executive orders (read DoPT Memos) thereby restricting the reservation benefits to the minimum particularly in Gp A and B posts.  

For Eg. Office Memorandum (OM) dated 29.12.2005, issued by the Department of Personnel & Training, inter alia provides a system for ensuring proper implementation of the provisions of the Act for the persons with disabilities, wherein the 3% reservation for the disabled persons was being computed by taking into account the total number of vacancies arising in Group C and D posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Group D posts. 


However, interestingly, when it came to Gp A and B posts, it was specifically restricted to be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment.


Justification to such a restriction given was that since the reservation for Group C and D posts is being calculated on the basis of the vacancies in identified as well as unidentified posts prior to the Act came into existence and in view of the provisions of Section 72 of the Act (Act to be in addition to and not in derogation of any other law), continued in the same way, however, reservation for Group A and B posts is  to be calculated on the basis of the vacancies for identified posts as per the provisions of the Act.


The court thus decided that the modus of computation of reservation on the basis of total number of vacancies (both inclusive of identified and unidentified) in the cadre strength will uniformly apply to Group A, B, C and D and not just Gp C and D). Supreme Court Judgement dated 08 October 2013 in Union of India  Versus National Federation of Blind (Civil Appeal 9096 of 2013) (click on link for judgement).


Accordingly, the DoPT  issued a revision on 03rd December 2013 to its Memo dated 29.12.2005 (click link for a copy)


The way ahead


The tendency of the Government (read Babus) is to find ways to block the entry of the disabled into the mainstream of employment. This undeclared blockade has no direct link with abilities of persons with disabilities and indicates a greater malady that exists in our system. This can only be tackled by a sincere attempt to raise awareness of all government employees from the top order to the lowest about the capabilities of the disabled and also supporting employees with disabilities with reasonable accommodation and equal opportunities to work and prove their worth. At the same time, the executive has to be interpret the benevolent provisions of the Act so as to give effect to the will of the legislature and the mandate of international convention called UN CRPD. 

One out of box idea is to scrap the Identification List  and  the present system of effecting reservation on identified posts. Let all posts be open for persons with disabilities with only condition that each person showcases how he/she will perform the functions of that post. Those competing on merit be not adjusted against reserved vacancies (policy exists but seldom implemented thereby defeating the intent of legislature of minimum 3% reservation). The government on their part must provide reasonable accommodation and an enabling environment to the employees with disabilities. I am sure this will work out and we must give it a try.

Here are some stories on such undeclared blockade and court intervention that recently made headlines in Indian Express and Times of India.

Civils: Centre, state told to implement quota rules for disabled 

Aamir Khan, Indian Express, Mumbai, Thu Dec 05 2013, 11:58 hrs


The Bombay High Court on Wednesday directed the state and Union governments to implement the rules of reservation for differently-abled candidates in civil services. The court also said the rules would apply during promotions.


The court was hearing a PIL filed by the National Confederation for Development of Disabled, stating that the People With Disabilities (PWD) Act was being violated. It sought the implementation of the rule, which provides 3 per cent reservation to disabled people in civil services recruitment. Directing the state and the Union government to implement the rule, the division bench of Chief Justice Mohit Shah and Justice M S Sanklecha directed that the rule be applied to the promotion of officers, who were recruited through the disabled quota.


The petition said the ratio of percentage of direct IAS to IAS by promotion or election was 67%:33% in the state at present. "Therefore, out of 100 new posts, 67 are filled by people who have been directly recruited in the IAS category and 33 posts are filled by state civil service officers. As per the PWD Act, three per cent of the posts in the IAS are reserved for such class of people. Thus, reservation should be applicable to all the 100 posts," the petition stated. It also contended that the quota for PWD had not been filled for 15 years. According to the Constitution, the authorities are under obligation to apply the provisions of the PWD Act. Granting relief to the petitioners, the HC disposed of the petition.


Source: Indian Express


Disabled people clear UPSC, but wait for service allocation

Rema Nagarajan, TNN | Dec 2, 2013, 04.55 AM IST

MUMBAI: Several persons with disabilities (PWDs) who crack one of the toughest exams in the country and get selected for the civil services are routinely rejected with the government claiming there is no suitable service for them. 

Source: Times of India, 02nd Dec 2013
They are good enough to overcome their disability and get selected for the civil services after clearing two levels of exams and the interview, but the Department of Personnel and Training, the allocating authority, rejects them and cancels their candidature.
In the last two years alone, out of 67 such candidates who got selected, 11 are still waiting to be allocated services. Many selected PWDs are allocated lower services  than their ranking merits, on the plea that the nature of their disability prevents them doing the job in most services.

So how do babus sitting in offices decide what candidates with varying levels and kinds of disabilities are capable of? The answer lies in a totally arbitrary list called "list of services identified suitable for physically disabled category along with physical requirements and functional classification" published in the gazette. It lays down what service a successful candidate with disability can get. For instance, under the category of locomotor disability, if the disability affects both hands or arms, you can get into the most sought-after Indian Administrative Service (IAS) but you would not be eligible for any of the other 23 services.

Again, the Delhi Andaman and Nicobar Islands Police Service (DANIPS) is open to those with one leg affected or whose hearing is impaired. However, there is no place for people with these or any other disability in either the Pondicherry Police Service or the Indian Police Service (IPS). How different can the job be in different police services? In an age of economic crime and cybercrime, will the police service be limited to physical fitness or brawn and not brains?

All accounts services, the Indian P&T Accounts & Finance Service, Gr.A, Indian Civil Accounts Service, Gr. A and Indian Railway Accounts Service are open someone with one arm (OA) or one leg (OL) affected or with one arm and one leg affected (OAL) and to those with both legs affected (BL). However the Indian Audit & Accounts Service Gr. A alone is not open to persons with both legs affected. Why is only this accounts service not open to people with both legs affected? Nobody seems to know.

"My disability says both legs affected. But I use crutches and can do all jobs. However, most services are closed to me because some officials who have never met me decided that if both legs are affected, I must be immobile or unable to do most jobs. It is totally unfair. This identification of service has to be done away with. Let them select us, meet us, see what we can do and allocate us services accordingly and by our ranks," says a candidate who cleared the exam earlier but will be appearing again for the civil service exam on Monday, hopeful of getting in again through the 3% quota in all services for PWDs mandated by the Disability Act 1995.

The identification of service ought to be abolished as it is discriminatory under the Disability Act and under international conventions signed by India on ensuring equal rights to the disabled, pointed out yet another PWD. 

Officials in the DoPT did not comment despite several attempts to get their version."Frankly, I am appalled that nine years after this issue was first brought to light, it remains unresolved, that too, against the express orders and directions of the Prime Minister. If the country, the government and the prime minister's office in particular wish to demonstrate their true commitment towards protecting the rights of India's disabled citizens, they ought to resolve this issue once and for all," said Javed Abidi of the National Centre for Promotion of Employment for Disabled People (NCPEDP). He added that in protest against such apathy, NCPEDP will not take part in the "charade" of celebrating World Disability Day on December 3 when "speeches would be delivered, advertisements issued, and some more false promises made".


News Source: Times of India