Monday, November 21, 2016

Hyderabad HC Permits Blind Advocate To Take Judicial Service Exam pending his Writ Petition

Dear Colleagues,


This time, Mr. Arepalli Naga Babu, a visually-challenged IDIA scholar from Machilipatnam in Andhra Pradesh, has yet again strengthened the well-known belief that the only disability in life is lack of will and fortitude. Acting on his petition, the Hyderabad High Court has directed the authorities to accept his application and permit him to write the Judicial Service Exam to be held on 27th of November 2016, which he was denied earlier. 

The court also directed that he be allowed to take the examination in a separate room with the assistance of a scribe and be granted 20 minutes extra for every hour to compensate for the disability. A division bench comprising Chief Justice Ramesh Ranganathan and Justice A. Shankar Narayana affirmed that he cannot be denied participation in the selection process under the open category merely on account of his handicap (blindness) and stated that ‘there does not appear to be any prohibition in the Andhra Pradesh State Judicial Service Rules 2007 prohibiting visually-challenged candidates from participating in the selection process for appointment to the posts in the AP State Judicial Service’. 

Naga Babu, a law graduate from National Law University, Odisha, and a practising advocate of the high court, said the exam notification issued for the Andhra Pradesh and Telangana Judicial Services Exam confined the benefit of reservation only to the orthopedically handicapped and excluded the visually impaired persons. He stated that after he applied for the exam, he was informed that his application would be rejected as he was not entitled to write the exam and is neither eligible for reservation as per the rules.

Read more at: http://www.livelaw.in/hyderabad-hc-permits-visually-challenged-idia-scholar-naga-babu-take-judicial-service-exam/

Wednesday, November 16, 2016

Right to Dignity - a Consititutional Right of the Female Disabled Employee will Prevail over Employer's Right to Take Work, says Kerala HC [Judgement Included]

Dear Colleagues,

Here is a classic case where the Indian Railways has been wasting the exchequer's money in unnecessary legal battle against a female disabled employee who was seeking protection under section 47 of the Persons with Disabilities (Equal Opportunities, Protection of  Rights & Full Participation) Act 1995 since the year 2002.

Brief history
 
While serving in the Railways, in the year 1998, Ms. Fancy Babu suffered transverse myelopathy (inflammation of spinal cord) at D4 level, which eventually resulted in complete paralysis confining her to bed. In 2002, she proposed to retire voluntarily and the Indian Railways accepted it. In 2009, having come to know of the beneficial provisions of benefit of Section 47 of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995, the employee approached the Central Administrative Tribunal, Ernakulam Branch seeking reinstatement and extension of benefits under the Act in OA/49/2009. The Tribunal, allowed the original application, setting aside the order or retirement and directed the employee’s reinstatement with effect from 15.02.2002. But Railways went against it before the High Court in  WP(C) No. 15871 of 2010 [click here to read the judgement dt 25 Aug 2014], wherein the said order was confirmed by the High Court by dismissing the appeal preferred by the Railways. 

Facts leading to instant case
 
However, in the year 2015, Ms. Fancy Babu had to again approach CAT  & file MA No. 180 of 2015 under Rule 24 of the CAT (Procedure) Rules 1987 complaining that the Tribunal’s order, as has been confirmed by this Court, has not been implemented by the Indian Railways.  Ms. Babu cited Kunal Singh v. Union of India (2003) 4 SCC 524 and Bhagwan Dass and another v. Punjab State Electricity Board (2008) 1 SCC 579 on protections available to employees under Section 47 of the Act.

The Tribunal, treating it as a special case, held that the employee need not report to office to receive her salary and it directed the employer to explore the possibility of ‘voluntarily’ retiring the employee with all service benefits. 

The Indian Railways again preferred an appeal  OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu, before the Kerala High Court against this order of the Tribunal.  The contention put forth by the Indian Railways was that that since it is in trust of public money; it would be against the public interest to let a person draw salary without her discharging any function—without even attending the office. On the part of employee, it was urged that, where an employee has been totally incapacitated and has been rendered immobile, it is inequitable and unconscionable to compel the employee to attend office, much less discharge functions. 

Dismissing the challenge against the CAT order, the division bench comprising Justices PR Ramachandra Menon and Dama Seshadri Naidu, observed: “Given the modesty of women, the employer, still, expects a crippled woman employee to visit the work place, and, if necessary, discharge the functions to be assigned to her—all this with a urinary catheter permanently fixed and also with bowel incontinence: her modesty exposed and privacy invaded.” 

Strongly worded judgement authored by Justice Dama Seshadri Naidu discusses judicial recognition of human dignity in various countries. The bench also observed that employer’s insistence that she should physically mark her attendance daily in office violates her privacy. “The doctrine of dignity takes into its fold ‘privacy’, too, for it is a facet of a woman’s dignity,” the court held. “The employer seems to have understood that keeping an employee on the rolls, as if she had been in service, must mean that she should perform the ritual of attending office. We are afraid it is misplaced, if not perverse,” the bench said. 

 Dismissing the appeal and upholding the CAT order, the bench remarked: “Here is a conflict, as it seems, between the employee’s constitutional right—right to dignity and privacy—and the employer’s right—right to compel an employee to discharge the allotted functions. Need we say, it is the constitutional right that prevails? Nevertheless, we hasten to add, it may be a constitutional canon but needs the facts to justify it. Here, the facts, we think, justify this conclusion.”

Click here to read the judgement  dated 03 Oct 2016 in OP (CAT).No. 182 of 2016 titled Union of India and Ors Vs. Ms. Fancy Babu passed by the Kerala High Court.



5% Marks Concession to Reserved Categories in TET is Creating Equal Level-Playing Field - Supreme Court [Judgement Included]

Dear Colleagues,

Hon'ble Supreme Court has reiterated that the preferential treatment or concessions granted to SC/ST, backward classes, persons with disabilities and de-notified communities is within the concept of equality and is in furtherance of the  constitutional obligation of the State to the under-privileged and to create an equal level-playing field.

In the instant case the 5% marks concessions granted by the Tamil Nadu State to the reserved categories in State Teachers Eligibility Tests conducted under the NCTE guidelines was under challenge. The division bench comprising Justice Siva Kirti Singh and Justice R Banumati was considering a batch of appeals on conflicting judgments from Principal and Madurai Bench of Madras High Court concerning appointment of secondary grade teachers and B.T. assistants in Tamil Nadu as per the guidelines prescribed by the National Council for Teacher Education (NCTE).

Hon'ble SC Bench observed that “The idea behind laying down NCTE guidelines for conducting TET was to bring about uniformity and certainty in the standards and quality of education being imparted to the students across the nation. However, at the same time the framers of the guidelines took note of the huge socioeconomic disparity existing in the nation and accordingly, by virtue of Clause No. 9 enabled the respective state governments/authorities to provide relaxation to the candidates belonging to socially backward classes.” 

Hon'ble Bench expressed that the Constitution   of   India   has   made   adequate   enabling   provisions empowering   the   State   to   promote   reservation/concessions.   Special provisions are made for advancement of the socially and economically backward classes.  These provisions will bring out the contents of equality of opportunity guaranteed under Articles 14, 15 (1), 16 (1) of the Constitution of India by creating equal level-playing field.  

Hon'ble Court made a reference to M. Nagaraj and Others vs. Union of India and Others  (2006) 8 SCC 212, wherein the Constitution Bench held as follows:-
“47. Equality of opportunity has two different and distinct concepts.  There is a conceptual distinction between a non-discrimination principle and affirmative   action   under   which   the   State   is   obliged   to   provide   a level-playing field to the oppressed classes.   Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups.   Both the conceptions constitute “equality of opportunity”.”
The Bench also made a reference to State of Madhya Pradesh and Anr. Vs. Kumari Nivedita Jain and Others (1981) 4 SCC 296 wherein it was eloquently stated that the grant of relaxation is for the upliftment of Scheduled Castes and Scheduled Tribes and other backward communities.  

The bench also indicated that in a similar case wherein Rajasthan High Court upheld the challenge to relaxation to reserved categories,  the Hon'ble SC had reversed the Rajasthan High Court judgement  in the matter titled  Vikas Sankhala and Ors. v. Vikas Kumar Agarwal and Ors. Etc. (2016) 10 SCALE 163.

The bench held that such a provision is in line with the principles enshrined in the Constitution and state government cannot be faulted for discharging its constitutional obligation of upliftment of socially and economically backward communities by providing 5% relaxation to candidates belonging to scheduled caste, scheduled tribes, backward classes, most backward classes, de-notified communities and persons with disability (PWD). 

The bench also rejected the contention that the government has changed the rules of selection. “It is not the case where a basic eligibility criterion has been altered in the midst of the selection process.” “By granting relaxation of 5% marks in TET for reserved categories only, the eligibility criterion is neither altered nor is any prejudice caused to the appellants.”

The Hon'ble bench finally held that Madras High Court principal bench rightly rejected the challenge to G.O.(Ms.) No.25 dated 06.02.2014 and G.O.(Ms.) No. 71 dated 30.05.2014, holding that as per the NCTE guidelines, the state government has the power to grant relaxation on marks obtained in TET to candidates belonging to reserved category and the same is affirmed.

Read / Download the judgement 

Civil Appeal No. 10700/2016 titled V. Lavanya & Ors Vs. State of Tamil Nadu & Ors. [PDF 213KB]: 


Wednesday, October 26, 2016

Supreme Court of India | Civil Appeal No. 213 of 2013 | State of Punjab Vs. Jagjit Singh & Ors | Dated 26 Oct 2016

THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 213 OF 2013

Appellants:       State of Punjab & Ors.   
Respondents:    Jagjit Singh & Ors.
Bench:             Hon'ble Justice Jagdish Singh Khehar
                        Hon'ble Justice S.A. Bobde)
Order Date:     26 October 2016
Status :            Reportable



Thursday, October 20, 2016

US Supreme Court to hear ground breaking case involving what is "appropriate education" for students with Autism in public schools

Dear Colleagues,

The origins of this potentially lank mark case stretch back to 2010 when the parents of a child with autism in Douglas County of USA had to withdraw their child from "Summit View Elementary" -  a public school  after the child (now 17) began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. The parents having been convinced the school wasn’t doing enough to help their son with autism progress academically, pulled the child out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.

The parents have argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA (Individuals with Disabilities Education Act) was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the "appropriate standard" to be used to assess the proper level of educational benefit a disabled student should get. The petition of the parents argues that this case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA.

It is pertinent to note that the U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education Versus Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

Even in India, we have been facing this issue of what is 'appropriate education' for children with disabilities, particularly those with intellectual and developmental disabilities. While the government schools in India are woefully ill-equipped in absence of trained educators, lack of teaching learning material in the schools given the large number of students. The situation is equally grim in the private schools as well who charge a considerable amount in the name of tuition fee and other counts, however, have made the education of disabled children an affair to be managed by Shadow Teachers (paid by parents). In the name of inclusion, children do remain in the school but there is hardly an effort to include them in the classroom or the learning outcomes. Children with disabilities are also not included in play or extra-curricular activities. This is surely not inclusion. This is a clear violation of the spirit of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and in particular Section 30 of the Act.

Entire world will be watching this case with great curiosity as to what Supreme Court of USA decides. But one thing is sure, Supreme Court had made up its mind to speak its mind on the issue and likely to grant Certiorari to the parents. This case is truly about equal opportunity for the special needs children that the law requires. And this is likely to help realize inclusive education as enshrined in the IDEA.

Brief about IDEA 

The Individuals with Disabilities Education Act (IDEA) is a four-part (A-D) piece of American legislation that ensures students with a disability are provided with Free Appropriate Public Education (FAPE) that is tailored to their individual needs. IDEA was previously known as the Education for All Handicapped Children Act (EHA) from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142). Overall, the goal of IDEA is to provide children with disabilities the same opportunity for education as those students who do not have a disability.

IDEA is composed of four parts, the main two being part A and part B.[1] Part A covers the general provisions of the law, Part B covers assistance for education of all children with disabilities, Part C covers infants and toddlers with disabilities which includes children from birth to age three, and Part D is the national support programs administered at the federal level. Each part of the law has remained largely the same since the original enactment in 1975.

In practice, IDEA is composed of six main elements that illuminate its main points. These six elements are: Individualized Education Program (IEP), Free and Appropriate Public Education (FAPE), Least Restrictive Environment (LRE), Appropriate Evaluation, Parent and Teacher Participation, and Procedural Safeguards. To go along with those six main elements there are also a few other important components that tie into IDEA: Confidentiality of Information, Transition Services, and Discipline. Throughout the years of IDEA being reauthorized these components have become key concepts when learning about IDEA.

Here is the coverage in Denver on the issue

U.S. Supreme Court will hear Douglas County student with disabilities case
Origins of potentially landmark case stretch back to 2010

The U.S. Supreme Court announced Thursday that it will hear a potentially groundbreaking case brought by a Douglas County couple who claim that their autistic son was not provided an adequate education in the public school system as required by federal law.

The high court’s ruling on the case, which likely wouldn’t come down until next year, could have substantial implications for students with disabilities across the country in terms of the standard school districts will be required to meet when providing instruction and services. At issue is whether schools must provide an education equal to other students.

The family, whose last name is not used in court documents, told The Denver Post on Thursday that they were “shell-shocked and giddy” about the decision by the Supreme Court to grant certiorari to their case, which has dragged on for half a dozen years.

“It’s about equal opportunity for special-needs kids that the law requires,” said Joe F., father of Endrew F., whose name anchors the Endrew F. v. Douglas County School District case file. “If we can change any families’ lives, that’s our goal.”

The district released a statement on the high court’s decision late Thursday.

“It would be inappropriate to discuss the specifics of the case while it is still being litigated, but the Court’s decision today is not a decision on the merits, and we look forward to addressing the issues before the Court,” district spokeswoman Paula Hans said.

The roots of the case go back to 2010, when the Highlands Ranch couple pulled Endrew, now 17, out of Summit View Elementary after he began to exhibit severe behavioral issues, including banging his head, dropping to the floor, disrobing and running away from school. Convinced the school wasn’t doing enough to help their son progress academically, the couple pulled him out of Summit View and enrolled him in Firefly Autism, a Denver school that specializes in working with autistic children.
“If he was able to show up to school and say ‘good morning,’ that was good enough for them,” Joe F. said of the Douglas County School District. “They weren’t moving his education forward.”

The family has asked that their last name not be used.

The parents, who said their son has made progress in his learning since attending Firefly, asked the district to reimburse them for the tuition they paid for Endrew’s private schooling. They claimed that the Douglas County School District did not do enough to provide their son with a “free appropriate public education” as required by the 1975 Individuals with Disabilities Education Act (IDEA).

But an administrative law judge, a federal judge and the 10th U.S. Circuit Court of Appeals backed the district, claiming in separate rulings that the federal statute only requires that schools provide students with “some educational benefit,” a standard they determined Douglas County had met with Endrew.

The family argued in the petition they submitted to the U.S. Supreme Court late last year that the intent of the IDEA was to provide a meaningful education to disabled students, not simply a “just-above-trivial” benefit. They noted that federal judges from several circuits across the country have issued conflicting rulings over the years on what is the appropriate standard to be used to assess the proper level of educational benefit a disabled student should get.

“This case presents an ideal vehicle for this Court to resolve the circuit split and provide lower courts with guidance in applying the IDEA,” their petition argued.

The U.S. Supreme Court hasn’t spoken on the issue since the 1982 Board of Education v. Rowley ruling, when it affirmed that IDEA guaranteed disabled students access to the public school classroom but didn’t address the quality of that education.

The family received a boost last month when the Office of the Solicitor General filed an amicus brief urging the Supreme Court to take up the case. It said that the 10th U.S. Circuit Court of Appeals had set the bar — a standard of “merely … more than de minimis” educational benefit — too low.

“No parent or educator in America would say that a child has received an ‘appropriate’ or a ‘specially suitable’ or ‘proper’ education ‘in the circumstances’ when all the child has received are benefits that are barely more than trivial,” the solicitor general’s office wrote.

But Kathleen Sullivan, chief counsel for the Colorado Association of School Boards, said it would be better for Congress to clarify its statutes than for the court to impose an order. A uniform standard handed down by the Supreme Court would prove “disruptive” to what is today an individually tailored analysis and decision between educators, parents and students, she said.

“The disruption is in shoving aside more than 30 years of case law that we have in helping us understand what the IDEA means for students,” Sullivan said. “I think we would see a wave of litigation to define and apply that new standard.”

The district, in a brief it filed earlier this month urging the Supreme Court not to take up the case, argued that in passing the IDEA, Congress guaranteed access to public education for students with disabilities but did not specify what the level of that education should be.

“Thus, for over 30 years, this Court has held that if a State provides a program ‘reasonably calculated to enable the child to receive educational benefits,’ then it ‘has complied with the obligations imposed by Congress and the courts can require no more,’ ” the brief argued.

But Jack Robinson, an attorney for Endrew F.’s family, said one of the IDEA’s stated goals is readying a student with disabilities for the workforce or independent living, something that can’t be achieved with a minimal education offering.

“There has to be a more heightened and robust standard than a little more than nothing,” Robinson said. “This case has the potential of recognizing that children with disabilities have a right to a substantive education.”

Source : Denverpost 

Note: This post is also reproduced on " Subhash Vashishth's Blog"