Case BriefsSupreme Court

Supreme Court: Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ has held that a person with disability should be considered for promotion along with other persons working in the feeder cadre.

The Court explained that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. The absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation.”

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted which came into force on 7th February, 1996. In 2007, India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). In pursuance to the debates in the Standing Committee of the Parliament, The Rights of Persons with Disabilities Act, 2016 replaced the 1995 Act.

The Court made clear that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. However, the law in the present case was required to be propounded as a large number of cases may still arise in the context of the 1995 Act.

“Even under the 1995 Act, the rights of PwD, and how they would attain an equal opportunity has been an ongoing exercise blocked by a greater impediment of a social mind set change and the 2016 Act is the result thereof.”

Background

The Court was hearing the case where the respondent was appointed in 1996 to the post of Typist/clerk in the Police Department on compassionate grounds, after her brother had passed away during service. She undisputedly suffered from Post Polio Residual Paralysis (L) Lower Limb and her permanent disability had been assessed at 55%.

The respondent subsequently cleared all departmental tests for promotion, and was test qualified in December, 1998. She was given a category change to Lower Division clerk in July, 2001 without losing her seniority and later on promoted as Senior Clerk (equivalent to Upper Division Clerk) on 16th September, 2004, based on the seniority list of test qualified LDCs.

She was thereafter promoted to the post of a Cashier on 5th May, 2015.

She, however, contended that she was entitled to promotion as a Senior Clerk with effect from 1st July, 2002 with all consequential benefits and as a Cashier with effect from 20th May, 2012 with all consequential benefits and thereafter as Junior Superintendent with effect from the date of her entitlement. This plea was predicated on reservation in matters of promotion which she sought under the 1995 Act as she suffered from physical disability.

What does the law state?

The Court held that the 1995 Act mandates reservations in promotions for persons with disabilities as it provides for equal opportunity for career progression, including promotion. Thus, it would be negation of the legislative mandate if promotion is denied to PwD and such reservation is confined to the initial stage of induction in service. This would in fact result in stagnation of the disabled in a consequential frustration.[1]

Further, the operation of reservation and the computation has to be made with reference to the total number of vacancies in the cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion.

However, it is important to note that,

  • there has to be rules providing for promotion from the feeder cadre to the provisional post as there cannot be promotions even for the PwD de hors the rules as a singular benefit.
  • the requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre.

What happens when the State does not provide for any reservation in promotion for PwD?

The mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability and the absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted.”

The only caveat to the aforesaid would be if the Government is of the view that the posts in the promotional cadre cannot be reserved for PwD category due to functional or other reasons and that should not be a ruse to defeat the reservation in promotion.

Understandably, such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability as submitted by the learned Amicus Curiae, more often than not, the disability comes in the way of meeting the requirements for promotion. In such a situation, the government will have to explore methods to address the issue of stagnation of PwD.

In the aforesaid eventuality, Amicus Curiae suggested:

(a) to provide promotional avenues in other departments/establishments (where posts are identified for PwD at a higher level) or

(b) grant of higher pay in the same post. This is stated to be an obligation flowing from Section 47 of the 1995 Act.

“… non-discrimination in employment is a mandate of the legislature.”

[State of Kerala v. Leesamma Joseph,  2021 SCC OnLine SC 435, decided on 28.06.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Gaurav Agrawal as Amicus Curiae

S.K. Rungta,  Senior Counsel and Archit Verma, Legal Consultant in the office of Chief Commissioner for Persons with Disabilities.

[1] Viklang Sang Haryana vs, State of Haryana, 2011 SCC OnLine P&H 4266

COVID 19Hot Off The PressNews

Department of Personnel & Training (DoPT) has exempted pregnant women officials and staff members from attending office.

The Union Minister of State (Independent Charge) Development of North Eastern Region (DoNER), MoS PMO, Personnel, Public Grievances & Pensions, Atomic Energy and Space, Dr Jitendra Singh said, a circular to this effect has been issued and is expected to be followed by different Ministries/Departments as well as State/Union Territory governments.

Dr Jitendra Singh said, pregnant women employees who are not already on maternity leave will also be exempted from attending office. Persons with disabilities are also to be given similar exemption from attending office.

The latest circular issued by the DoPT also states that Government servants who have underlying Co-morbidities and were undergoing treatment for these ailments before the lockdown, may, as far as possible, be exempted upon production of medical prescription from treating physician as per the CGHS/CS (MA) Rules, as applicable.

What is important, is to strictly observe staggered timings for the arrival and departure of the officers and the staff. In order to avoid unnecessary crowding, all the Heads of Departments have been advised to ensure three sets of timings. These would be 9 AM to 5 PM, 9:30 AM to 6 PM and 10 AM to 6:30 PM respectively.

While officers of the level of Deputy Secretary and above are expected to attend office on all working days, the officers and staff below the level of Deputy Secretary will attend office with 50% attendance every alternative day and those not attending the office should work from home and remain available on telephone and electronically.

Dr Jitendra Singh appreciated the staff in the Ministry of Personnel for having continued to work with full commitment during the entire phase of lockdown. In fact, he said, some of the staff members were working from home even during the weekends which normally does not happen when the offices are closed.

Every care has been taken to ensure that while offices continue to function, at the same time, the welfare and safety of officials is not overlooked, said Dr Jitendra Singh.


Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 20-05-2020]

[Source:PIB]

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench of Dr. AK Sikri, Ashok Bhushan and SA Nazeer, JJ asked the Central Government to make necessary changes in Section 80DD of the Income Tax Act, 1961 after a differently abled person file a PIL before it, claiming that the said the provision violates the fundamental right of equality of the handicapped person enshrined in Article 14 of the Constitution as it denies:

“the benefit of the insurance to the handicapped persons to get annuity or lumpsum amount during the lifetime of the parent/guardian of such a handicapped person, whereas the beneficiaries of other life insurance policy are getting annuity during the lifetime of the person who has taken insurance policy. This, according to the petitioner, violates the fundamental right of equality of the handicapped person enshrined in Article 14 of the Constitution.”

Section 80DD(2)(a) of the IT Act provides for payment of annuity of lump sum amount for the benefit of a dependant, being a person with disability, in the event of the death of the individual or the member of the Hindu Undivided Family (HUF) in whose name subscription to the scheme stipulated in the said provision has been made.  The petitioner, however, argued that such benefit should not be deferred till the death of the assessee/life assured and it should be allowed to be utilised for the benefit of the disabled person even during the lifetime of the assessee as there could be harsh cases where handicapped persons may need the payment on annuity or lumpsum basis even during the lifetime of their parents/guardians.

Finding force in petitioner’s submission, the Court said that there can be such cases, for example:

“where guardian has become very old but is still alive, though he is not able to earn any longer or he may be a person who was in service and has retired from the said service and is not having any source of income. In such cases, it may be difficult for such a parent/guardian to take care of the medical needs of his/her disabled child. Even when he/she has paid full premium, the handicapped person is not able to receive any annuity only because the parent/guardian of such handicapped person is still alive.”

Stating that there may be many other such situations, the Court said that it is for the Legislature to take care of these aspects and to provide suitable provision by making necessary amendments in Section 80DD of the Act. Hence, it urged the Centre to have a relook into this provision by taking into consideration all the aspect. [Ravi Agrawal v. Union of India, 2019 SCC OnLine SC 5, decided on 03.01.2019]

Conference/Seminars/LecturesLaw School News

Law Mantra is organising a one Day International Seminar on Human Rights & Persons with Disabilities, on 2nd December, 2018 at the Indian Law Institute, New Delhi in academic collaboration with CASIHR (Rajiv Gandhi National University of Law, Punjab), Maharashtra National Law University, Nagpur & International Council of Jurists, London.

Chief Patron: Justice Deepak Verma, Former Judge, Supreme Court of India

Patron: Prof. (Dr.) Paramjit S. Jaswal, Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab.

             Prof. (Dr.) Vijender Kumar, Vice-Chancellor, Maharashtra National Law University, Nagpur.

Date: 2nd December, 2018

Venue: Indian Law Institute, Bhagwan Dass Road, New Delhi.

About Law Mantra

“Law Mantra” (headquarters New Delhi) (Registration No 150 in Book No. 4 Vol. No. 3, 603 0f 2018) is not for profit organisation running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. “Law Mantra” is a body of Jurists, Advocates, Academicians and Students running for the purpose of enhancing legal academics and legal awareness in the society and in the practice of the same. We at Law Mantra enable people to take responsibility for the situation of the deprived Indian women and children and so motivate them to seek resolution through individual and collective action thereby enabling women and children to realize their full potential.

Human Rights & Persons with Disabilities

The great German Philosopher Immanuel Kant has quoted that human beings are rational beings, therefore worthy of dignity and respect. Every individual has the basic right to live a dignified life and to exercise his freedoms and choices. The same phrase is equally applicable to persons with disabilities. But despite of this fact, persons with disabilities are subjected to discrimination. The one major factor of such discrimination is stigmatized societal attitude.

A mechanism of social integration of persons with disabilities has been made by following different international conventions and documents. Now world has joined to consider disability jurisprudence as an inseparable part of the international law. Universal Declaration of Human Rights and the Declaration on the Rights of Disabled Persons and Convention on the Rights of Persons with Disabilities are few important documents justifying the aforementioned proposition.

In a recent report of WHO, an estimated 10% of the world’s population –approximately 650 million people, of which 200 million are children, experiences some form of disability. The number of people with disabilities is growing as a result of different factors including population growth, ageing and medical advances that preserve and prolong life.

Across the world, people with disabilities have poorer health outcomes, lower education achievements, less economic participation and higher rates of poverty than people without disabilities. This is partly because people with disabilities are facing barriers in accessing services that many of us have long taken for granted. These services mainly include health, education, employment, transport and information. These difficulties are exacerbated in less advantaged communities.

To achieve the long-lasting, vastly better development prospects that also lie at the heart of the 2015 Millennium Development Goals and beyond, we must empower people living with disabilities and remove the barriers which prevent them participating in their communities; getting a quality education, finding decent work, and having their voices heard.

People with disabilities report seeking more health care then people with without disabilities and have greater unmet needs. For example a recent survey of people with serious mental illness showed that between 35% and 50% of people in developed countries and between 76% and 85% in developing countries received no treatment in the year prior to study. Health promotion and prevention activities seldom target people with disabilities. For example women with disabilities receives less screening for breast and cervical cancer than women without disabilities. People with intellectual disabilities are less likely to have their weight checked. Adolescents and adults with disabilities are more likely to be excluded from sex education programs. These factors from world report on disability by World Health Organization clearly indicates that there is need to work at the ground level so that persons with disabilities can enjoy their human rights without any difference from others.

The present seminar is aiming at highlighting different issues underlining disability jurisprudence from human rights perspective. We welcome different stakeholders including persons with disabilities, disability law activists, academicians, researchers, lawyers, medical professionals and bureaucrats.  This seminar is a noble initiation of Law Mantra in association with RGNUL Punjab through its Research Centre for Advanced Studies in Human Rights, upcoming Centre for Disability Studies and Health Laws and MNLU, Nagpur. We are considering this seminar as a platform to initiate a RIGHT discourse, expecting thought provoking, multidisciplinary, quality research papers.

Themes for Seminar

  • Social Integration and Challenges
  • Human Rights of women, children & sex workers
  • Discrimination and Human Rights violation
  • The role of National Human Right Commission in promotion and protection of Human Right
  • Human Rights of Indigenous people
  • Mob Lynching and Vigilantism
  • Conflict between IPR/Business Law and Human Rights
  • Disability as a Social Impairment
  • Social Model of Disabilities and Human Rights
  • Disability and Human Rights: Legal Framework
  • International Humanitarian Law and Rights of Persons with Disabilities
  • Healthcare and Disability
  • Medical Professionals and Interaction with Persons with Disabilities
  • Reproductive Rights of Women with Disabilities: International Human Rights Perspective
  • Right to Education and Persons with Disabilities
  • Right to Employment and Disability
  • Healthcare and Treatment of Persons with Disabilities: A Issue of Consent
  • Healthcare and Privacy Issues related to Persons with Disabilities
  • Comparative study on Disability Laws and Policies
  • Indian Laws and UNCRPD: Future of Disability Laws

Note: These Themes are not exhaustive; Authors are open to work on any topic related to above-mentioned theme.

Procedure for Submission of Abstracts: Abstract (of about 250 words) should be sent as an attachment in a word file. Abstracts will be peer reviewed before they are accepted. The following information, in the given format, should be send along with the Abstract:

  • Name of the Participant
  • Official Designation/Institution Details
  • Address and Email id
  • Title of Abstract
  • Abstract

The subject line of Email should read as: ‘Abstract Submission for International Seminar on Human Rights & Persons with Disabilities”.

Guidelines for Paper Submission

  • The title of the paper should be followed by Name, Designation, Name of the Organization / University / Institution and Email address. It is mandatory to mention Email address, as all future correspondence will be through it.
  • Name and details of Co-author, if any.
  • The paper should be typed in MS WORD format (preferably 2007 or 2010).
  • The paper must be in single column lay out with margins justified on both sides.
  • The sub heading should be in font size 12, bold and Times New Roman, left aligned.
  • The main text should be in font size 12, Normal, Times New Roman, 1.5 spacing and Justified.
  • The length of paper should not exceed 6,000 words (including footnotes). Exceeding the word limit may lead to rejection of paper.
  • All references must be in the form of footnotes with font size 10 and should be according to the Bluebook 19th Edition.

Publication Opportunity: All papers accepted for the conference will be published in UGC Referred Book bearing ISBN, CASIHR Journal on Human Rights Practice (JHRP) by RGNUL, Contemporary Law and Policy Review – NLU Nagpur, International Journal of Legal Research and Governance and Law Mantra Journal. (If Selected for Publication in UGC Referred Book bearing ISBN, Publication Charge will be Extra as Per bill of Publication House).

REGISTRATION FEE FOR PRESENTATION OF PAPER
Students Rs 1500/-
Faculties/Professionals/Research Scholars/Others Rs 2000/-
Presentation in Absentia for Students Rs 2000/-
Presentation in Absentia Faculties/Professionals/Research Scholars/Others Rs 2500/-
REGISTRATION FEE FOR ATTENDING THE SEMINAR
Students Rs 800/-
Faculties/Professionals/Research Scholars/Others Rs 1200/-
IMPORTANT DATE
Submission of Abstract 05th October, 2018 (Extended)
Confirmation of abstract selection 07th October, 2018 (Extended)
Registration 25th October, 2018
Submission of full paper 27th November, 2018
Seminar Date 2nd  December, 2018

Who Should Attend?

Students, Research Scholars/Faculties/Academicians, Disability Rights Activist, Corporate Delegates, Business entities, Lawyers.

Rules for the Participants:

  • No abstract or full paper shall be accepted after the last date of submission respectively.
  • Participants/Paper Presenters have to register after the acceptance of abstract with payment of required fees.
  • For participation, registration is mandatory on confirmation of the participation. Only registered participants will be allowed to take part in Conference.
  • All the registered participants will be provided a participation certificate, conference kit, lunch and tea.

Note: The authors and co-authors both have register separately. The registration fee includes conference kit, lunch, High Tea, entry to all Technical session, and Certificates.

Eastern Book Company and SCC Online are proud to associate as Law School Partners. Please mention SCC Online Blog as reference.

Registration: Submit your abstract to editor.lawmantra@gmail.com with Subject line ‘Human Rights & Persons with Disabilities”.

Contact: For any queries, feel free to drop email to editor.lawmantra@gmail.com  Human Rights & Persons with Disabilities  or call on +91- 9310053923, +91-9667822453.

To view the Brochure, click HERE

Website: www.lawmatra.co.in

www.lawmantra.org

Case BriefsHigh Courts

Patna High Court: A Division Bench of Ajay Kumar Tripathi and Nilu Agrawal, JJ. dismissed an appeal filed for the wrong exercise of powers by the D.I.G., CRPF, under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
The facts of the case states that the appellant was dispensed from the services after giving one months notice under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 by the DIG, CRPF.
The appellant was said to have not completed the training due to which he did not acquire the status of a permanent government servant which eventually turned down the claim for wrong exercise of power under Rule 5(1) as mentioned above.
One of the arguments made was that during the course of training itself the appellant had suffered injuries which made him incapable of performing his duties; therefore, the appellant should have been protected under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Therefore, the Court held that, the applicability of the Act carries few exemptions in regard to certain organizations and establishments which include the paramilitary force, further the question of alternative employment remains invalid as the appellant had not acquired the permanent status. Appeal was dismissed on the grounds stated above. [Yadav Krishna Mohan v. Union of India, 2018 SCC OnLine Pat 746, order dated 27-04-2018]

 

Case BriefsSupreme Court

Supreme Court: Stating that educational institutions are bound to reserve seats from persons suffering from disability, the bench of Dr. AK Sikri and Ashok Bhushan, JJ directed that all those institutions which are covered by the obligations provided under Section 32 of the Rights of Persons with Disabilities Act, 2016 shall comply with the provisions of Section 32 while making admission of students in educational courses of higher education each year.

The other directions given by the Court in this regard are:

  • Insofar as law colleges are concerned, intimation in this behalf shall be sent by those institutions to the Bar Council of India (BCI) as well. Other educational institutions will notify the compliance, each year, to the UGC. It will be within the discretion of the BCI and/or UGC to carry out inspections of such educational institutions to verify as to whether the provisions are complied with or not.
  • UGC should constitute a committee consisting of persons from amongst Central Advisory Board, State Advisory Boards, Chief Commissioner of State Commissioners appointed under the Disabilities Act. The said committee will prepare a detailed study for making provisions in respect of accessibility as well as pedagogy and would also suggest the modalities for implementing those suggestions, their funding and monitoring, etc by June 2018.
  • The aforementioned committee will also consider feasibility of constituting an in-house body in each educational institution (of teachers, staff, students and parents) for taking care of day to day needs of differently abled persons as well as for implementation of the Schemes that would be devised by the Expert Committee.

It is important to note that the petition was filed only in respect of law colleges but considering the fact that these issues are of seminal importance, the Court decided to extend the coverage by encompassing all educational institutions. Stressing upon the importance of the issue, the Court said:

“a basic underline assumption, which is well recognised, is that everyone can learn; there is no such person as one who is ineducable; and that, accordingly, all disabled persons (from whatever disability they are suffering) have right to get not only minimum education but higher education as well. Not making adequate provisions to facilitate proper education to such persons, therefore, would amount to discrimination.”

The Court, hence, directed that the Report of the committee, as well as the Action Taken Report, shall be submitted before it in July 2018. [Disabled Rights Group v. Union of India, 2017 SCC OnLine SC 1486, decided on 15.12.2017]