Delhi HC directs UPSC to distribute vacancies equally [Judgement included)

Dear Colleages,

Please refer to my earlier post titled "Two High Courts direct Extra time, reasonable accommodation & reservation in CSE 2014" whererin writ petition was filed before the Delhi High Court as well as Bombay High Court challenging the constitutional validity of UPSC's Notification Civil Services Examination 2014 on the grounds that it was against the rights of persons with visual impairments granted by the Persons with Disabilities Act 1995. 

While my earlier post contained the judgement of the case filed in Mumbai High Court and an interim order in the case filed in Delhi High Court, this post contains the final order passed in the case before the Delhi High Court bearing  WP (C) No. 3919 of 2014 titled Sambhavana Vs. Union of India and others dated 04 March 2015.

Directions by the Court 

(a) the respondent no.2 UPSC shall find out from the respective Cadre Controlling Authorities the reason for allocating the vacancies in excess of 3% unequally between the three categories aforesaid.

(b) if the Cadre Controlling Authorities are unable to give any valid reason, the vacancies in excess of 3% shall also be equally distributed between the persons with disability of all three categories and the appointments in pursuance to the Employment Notice impugned in the petition shall be made accordingly.

(c) Relief claimed seeking issuance of a direction to the respondents to comply with the Office Order dated 26th February, 2013 supra is concerned, we had in our order dated 19 th August, 2014 held that the guidelines contained therein were issued as per the directions of the Chief Commissioner for Persons with Disabilities who is an Authority appointed under Section 57(1) of the Act and cannot be treated as mere executive instructions and the said guidelines having been issued for effective implementation of the provisions of the Disabilities Act, have statutory force and are bound to be implemented by all Departments and Authorities. No arguments whatsoever were addressed on the said aspect by the learned counsel for the respondents during the hearing of the writ petition and therefore, we hold with respect to the said prayer that the respondent no.2 - UPSC shall abide by the said guidelines for all times to come unless the same are varied in accordance with law.

Click here to read the Final Judgement WP (C) 3919 of 2014 titled Sambhavna Versus Union of India and Ors. dated 04 March 2015. [PDF ]

SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion

Dear Colleagues,

Please refer to my earlier posts "Physically Challenged Versus Logically Challenged" dated 10 Dec 2013 and  "SC clarifies 3% reservation in appointment for disabled extends to promotions and deputations as well" dated 10 October 2014 . 

Despite a three judge bench of the then Chief Justice, Justice Kurian Joseph and Justice Rohinton Fali Nariman of the Hon'ble Supreme Court rejecting the Centre's argument against the reservation in promotion for persons with disabilities on 12th Sep 2014 in Special Leave to Appeal (C) CC No(s). 13344/2014  in terms of The Persons with Disabilities Act 1995, the Union of India (read DoPT) has been dilly-dallying on the implementation of the Bombay High Court judgement in PIL 106/2010 dated 04 Dec 2013 titled National Confederation for Development of Disabled Versus Union of India and Ors,  by preferring some or the other objections since September 2014.

However, finally on 27 Feb 2015, a bench of Hon'ble Chief Justice HL Dattu and Mr. Justice AK Sikri of Hon'ble Supreme Court, have once again dismissed a Petition for Special Leave to Appeal (C) No 5914/2015 (Arising out of impugned final judgment and order dated 05/12/2014 in NOML No. 690/2014 in  RPL No. 85/2014 in PIL No. 106/2010 passed by the High Court Of Bombay). 

"How do you expect disabled persons to compete with the abled persons," the bench asked while dismissing the appeal filed by the Centre against the Bombay High Court order directing it and the Union Public Service Commission to implement a three per cent quota in direct recruitments and promotions for the disabled in the IAS.

Like last time, The Hon'ble Bench did not give specific reasons. For a copy of Supreme Court Order dated 27 Feb 2015 click here.

However, a large section of media was present in the Supreme Court and has reported the proceedings succinctly. 


A report in Times of India covers the entire proceedings as below:

Source: Times of India 

‘Disabled should get reservation in promotion’

Dhananjay Mahapatra, TNN | Feb 28, 2015, 03.33AM IST

NEW DELHI: The Supreme Court on Friday said the government could not deny quota in promotion to those who were appointed to a post under the reservation policy for the physically handicapped. 

A bench of Chief Justice H L Dattu and A K Sikri rejected the Union government's plea to set aside a high court decision ordering that those appointed in government service through physically handicapped quota would also be entitled to reservation while getting promoted. 

Arguing for the Centre, attorney general Mukul Rohatgi said there were four categories of civil services and if a person had availed the reservation benefit in getting a job, it would be unfair to extend the reservation benefit yet again to him while considering him for promotion to the higher category of service. 

The bench was not convinced. It said, "Why confine the reservation benefit only to the entry level and not for promotion. If a person is disabled, he is always disabled. So, as long as the disability continues, he should continue to get reservation benefits. We feel that these disabled persons should have reservation not only at the entry level but also at the time of promotion." 

The law provides for 3% reservation to physically challenged persons in government service. After a long adjudication process on a public interest litigation, the apex court had directed governments to implement the quota for disabled and fill the vacancies including backlog. 

On October 8, 2013, the SC in a landmark order had directed the Centre and states to implement within three months an 18-year-old law mandating 3% reservation for such persons in government jobs. 

The 1995 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force on February 7, 1996 providing a minimum 3% reservation in government establishments to the extent of 1% each for persons suffering from blindness or low vision; hearing impairment; and locomotor disability or cerebral palsy. 

The reservations will be implemented by all government departments, public sector undertakings and government companies at the Centre and states, enlarging opportunities for persons with disabilities eligible for benefits under the law. 

Rejecting the AG's arguments, the bench of Justices Dattu and Sikri said, "Don't give a restrictive meaning to reservation by confining it to the appointment level. Disabled persons should be empowered to compete with normal people in promotion." 

When the AG argued further against grant of reservation benefits in promotion to disabled persons, the bench cut it short by telling him that persons belonging to Scheduled Castes and Schedule Tribes got the benefit of reservation both in appointment and promotion. 

Source: Times of India 

CAT allows VH candidate to take exam for unidentified post

Now here, the Central Administrative Tribunal has put its mind to work unlike the traditional approach followed by the courts of mechanical interpretation of statutes. If the Government fails to identify posts where VH can work effectively, the VH candidates should not be made to suffer. Identification of posts has in fact become a roadblock for the competent candidates with disabilities to seek better career opportunities who are better placed  given the advancement in technology. Here is the detailed news appearing in Business Standard.

CAT allows visually impaired to participate in Auditor's exam

Press Trust of India  |  New Delhi  February 17, 2015 Last Updated at 18:40 IST

The Central Administrative Tribunal (CAT) has asked the government to allow a visually- impaired staffer to appear in an examination for promotion to the post of auditor, which was denied on the ground that the post was not suitable for the blind. 

A bench of CAT's judicial officer V Ajay Kumar asked the Centre to permit 41-year-old Mithlesh Choudhary, who is visually handicapped and also belongs to SC category, noting that "a prima facie case is made out". 

Choudhary, who is working as a Multi Tasking Staff at the Jaipur office of the Director, Post and Communication Audit, was barred from participating in the selection process for the post of Auditor on the ground that post was not suitable for blind persons. 

"In the circumstances and in view of prima facie case made out, respondents (Centre, Director, Post and Communication Audit and others) are directed to permit Choudhary to participate in the departmental examination for the post Auditor scheduled to be held on February 24 to 27, 2015, provisionally," the bench said. 

However, the tribunal made it clear that his result shall not be declared until further orders are passed by CAT. 

The interim order was passed by the tribunal after applicant's counsel Aurobindo Ghose, while citing an order passed by CAT in a similar matter, argued before it that Choudhary was entitled for direction to participate in the departmental examination for the post of Auditor.

Source: Business Standard

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