Punjab & Haryana HC reinstates employee with Cerebral Palsy

Dear Colleagues,

Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).

Brief Facts

Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test,  general  knowledge  and  the proficiency  test  in  operation  of computers   and also the computer  practical  test  and personal interview.  The competent medical authority had also declared  the  petitioner  as  a case  of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out  of  the  71  advertised posts,  only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.

However, within two months of joining the District & Sessions Judge,  Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that  his services are no longer  required.   The stand taken by the respondent was that  the  services  of  the petitioner  have  been terminated as per the terms of his appointment  letter,  according to which the petitioner  was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the  appointment  letter,  the  services of the petitioner  could  be terminated at any time without assigning any reason and without prior notice.  As the petitioner  was unable to perform any kind of  office work with his own hands and of  his own,  he being suffering from cerebral  palsy,  he could not  be continued in service.  As  per  the respondents,  petitioner  is unable  to  perform  any  work  on  the computer and, therefore, faced with this situation, the services of the petitioner  have  been dispensed  with  as  per  the  terms  of  his appointment  without  casting any stigma on him. The respondent also submitted that  the officials in the office of  District  and Sessions Judge have been helping the petitioner at  every step and at  every moment still he was unable to do any office work and, thus, respondent was left  with no option but  to take a decision to dispense with the services of the petitioner in the interest of office administration.

The Judgement

While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social  legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity.  Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which  has  been  identified  and  reserved  for  a  particular category, the employee cannot be terminated and efforts be made to provide a congenial  atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner. 

The court concluded that the "petitioner may be slow in handling the computer but  could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer.  The detail  of  the Sections  where the work  is  done on computers,  has been given in the replication,  which indicates that there are  plenty  of  places  where  the  petitioner  can  easily  be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and  competence.  With  same  support, encouragement  and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object  of  the Disability Act  would be given effect to in true spirit." 

Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha  VERSUS State of Haryana and others)    

Learnings from the judgement:

This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual.  Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:

(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace! 

(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of  performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.

The acknowledgements

Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.  

Media Coverage by the Tribune

High Court quashes sack order of disabled person 

Saurabh Malik

Tribune News Service

Chandigarh, August 6

In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.

The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.

Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.

During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.

In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.

Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….

Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.

Deaf seek level field on disability

Dear Friends,

Issues of bias within disabilities is becoming a regular discussion point. Though the disability groups try to avoid such a conflicting situation among disabilities and pose a unified front to advocate for their rights, however these issues are now open secrets. The bureaucracy and employers are taking advantage of this and openly discriminating in favour of one disability and against the other while filling up the disability quota provided by the law.

We have seen in the past that the person with less disability is preferred to fill up the vacant job quota. Often those with less than 40% disability (as required by law)  with fictitious certificates claiming to be 40% disability get in to the quota leaving the actual needy stakeholders in lurch. The employers raise no voice because the get (at least that is what the employers think) a more able?? and efficient??? employee in the disabled category which they have to adhere to in terms of The Persons with Disabilities Act. This is one side of the issue.

The other side of the issue is that there is open discrimination within disabilities that currently are eligible to be considered against disability quota in the Government jobs. Those who minor physically disabilities are preferred to those with more severe physical disabilities (such as a crutch user is preferred to a wheel chair user or those with Post Polio Residual Paralysis are preferred to those with Cerebral Palsy, a partial hearing impaired with speech is preferred to deaf, low vision is preferred to blind and likewise..). 

However,  in employment, it is the deaf who get left out. The results of past five years of UPSC exams conducted for Civil Services indicates this bias very categorically. There has to be a mechanism to address such discrepancies which only leads to rivalry among the disability groups. The currently disability law in India only provides for reservation in employment @ 1% each for the Hearing impaired, Low Vision & Blind and Orthopedic impaired. And now we are already witnessing many other groups who have been left out for various reasons from this ambit, raising their concerns vociferously in the consultations being organised for finalizing a new disability law for India in tune with new UN Convention on Rights of Persons with Disabilities.

The Government should evolve a clear cut mechanism to check discrepancies and subjective biases so that transparency is maintained and justice is done to the stakeholders.  The issue brought out before the court by Deaf Employees Association is an indicator that all is not well and soon you may find courts flooding with similar petitions from other groups. 

regards

SC Vashishth, Advocate

Here is the news item:

Deaf seek level field on disability

Mar 19, 2011, 03.52am IST

NEW DELHI: The hearing impaired on Friday moved the Supreme Court seeking parity with the blind and other physically challenged people in government service in promotions and allowance entitlements.

A bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishnan and Swatanter Kumar wanted petitioners — "Deaf Employees Welfare Association" and " Railway Employees Association of Deaf and Dumb" — to make a representation to the ministry of social justice and empowerment about their grievance.

However, solicitor general Gopal Subramaniam, taking note of the complaint of discrimination by the hearing impaired government employees, agreed to entrust the concerned department to examine the issues raised by the petitioner through advocate Kamal Kumar Pandey.

The bench asked the two associations to give the SG a copy of their petition and wanted the ministry concerned to report back to the court with its stand in four weeks.

Quoting Article 41 of the Constitution obliging governments to provide effective mechanism and public assistance to disabled people, the petitioners said prior to 1995, there was no specific legislation to address the rights and needs of the disabled people.

The governments confined their efforts to providing medical rehabilitation and removal of the stigma limited to visible disabilities like blindness, orthopaedically handicapped and leprosy, they said.

However, the concept of disability and the social attitude towards it has undergone a radical change since India signed the "Proclamation for Disabled, Full Participation and Equality for Asia and Pacific Region" in 1992. The Centre framed a national policy for disabled in 1993, which was revised in 2005, and provided 3% reservation to blind, hearing impaired and locomotory disabled people in government jobs.

However, the approach of the central and state governments underwent very little change and they have been discriminating against the the deaf employees by not providing them travelling allowance, on-job training and promotions on a par with the blind and orthopaedically handicapped.

Disabled employees suffering as employers not aware of disability provisions

Disabled need support, not your sympathy: High Court

"Visually impaired and disabled persons don't require your sympathy, they need a little support," observed the Bombay High Court on Thursday.

While hearing a plea filed by Nilima Surve, who is visually impaired, the high court was surprised that the commissioner of disability had upheld her termination, instead of supporting her.

In November 2006, Chetna College at Bandra had appointed Surve as a junior clerk. But she was dismissed from service four months later. The college had cited "mistakes in her typing" as the reason behind the termination.

The division bench, comprising chief justice Mohit Shah and justice SJ Kathawala, was irked to find that Surve wanted a particular software to be installed to improve her work, instead she was sacked citing "unsatisfactory work".

Surve had approached the commissioner for disability challenging her dismissal stating she had merely sought installation of the software, Jaws, but the college chose to dismiss her in March 2007.

The judges got further annoyed when Surve's counsel Chetan Agrawal pointed out that the commissioner had passed some critical remarks in the order upholding her termination.

One such remark read: "The woman should have acquired the knowledge of technology available and used in the market instead of asking for a specific software."

Additional government pleader agreed that the order was contrary to the legislative intent, after the judges expressed anguish about the observations.

"The order is clearly arbitrary and contrary to the provisions of the [Persons with Disability] Act," Nitin Deshpande said. The high court also called for a meeting of all stakeholders — government officers, NGOs, representatives of visually impaired and handicapped persons — on January 15.

Measures to resolve the problems faced by the disabled will be discussed at the meeting to be held in the conference hall of the high court building in presence of the judges.

http://www.hindustantimes.com/StoryPage/Print/636604.aspx

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