Rss

  • stumble
  • youtube
  • linkedin

Delhi HC Highlights Deficiencies In Persons With Disabilities (PWD) Act , Suggests Reforms

“Study the problems which have resulted in total exclusion and denial of persons suffering from mental illness the benefits of reservation under Section 33 of the PWD Act and also determine if the threshold of 40% under the PWD Act needs revision based on which an appropriate law could be made, or existing law amended”, said Justice Ravindra Bhat.

A Division Bench of Delhi High Court comprising Justices S. Ravindra Bhat and Deepa Sharma on Thursday highlighted deficiencies in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995, and suggested reforms to the same.

Justice S. Ravindra Bhat noted such deficiencies in the provisions relating to providing reservations as well as with the common minimum threshold of 40% disability. “Whilst it is within executive domain to categorize which post can be suitable for what kind of person or persons with disability, the absolute minimum threshold of 40% in the case of certain kinds of disabilities could be the barrier – unwitting though the case may be, and eliminate from the post identification exercise persons with such disabilities altogether. This clearly has a discriminatory result, and an indirect discriminatory effect,” the Court observed.
It however, noted that it was incapable of providing judicial redress or severe the provisions. “What the court can and proposes, is to direct the respondent and the Central Government to, with the aid of appropriate subject experts in mental illness and disorders, study the problems which have resulted in total exclusion and denial of persons suffering from mental illness the benefits of reservation under Section 33 of the PWD Act and also determine if the threshold of 40% under the PWD Act needs revision based on which an appropriate law could be made, or existing law amended,” the Court concluded.
The appellant, Mr. Jadhav Vishwas Haridas had lived with acute phases of mental illness since 1996-97 until 2006. He was therefore a “person with mental impairment/disability” within the meaning of the PWD Act. In terms of the IDEA scale, the disability suffered by him was above 40%, rendering him ineligible to receive benefits in terms of reservation in employment and education.
He claimed that due to his illness, he could not be successful in employment (Central Civil Service) exams, despite appearing for the examination seven times. Post 2006, when his condition improved, he found no assistance to compensate for the time lost in combating the mental illness.
He had now challenged a Single Judge order dismissing his challenge to Section 33 of the PWD Act. Section 33 only lists i) blindness or low vision, ii) Hearing impairment and iii) Locomotor disability or cerebral palsy as the disabilities for which at least one per cent vacancies must be reserved.
Mr. Jadhav had demanded that the provision be declared unconstitutional to the extent that it excludes persons with mental illness for the purpose of job reservations. He had also brought to the notice of the Court that there was no compensatory mechanism, in terms of time lost while fighting the disability and inter alia sought other consequential reliefs. His petition was however rejected, ruling that no statutory or constitutional right of his was violated.
Responding to the challenge, the State had argued that the relief sought by the petitioner was already the subject matter of a pending legislation before the Parliament. The Single Judge had accepted these contentions and observed that the Court was not empowered to lay out a time schedule for enactment of a law or making changes in existing legislation.

While the High Court agreed with the Single Judge’s conclusions, it did not approve of the plea’s disposal without considering other reliefs demanded by the petitioner.
During the hearing, the Court noted that the Respondents were unable to shed any light on the reason for exclusion of those suffering from mental illness from the list of reserved categories entitled to reservations.
It thereafter opined that a 40% disability test to provide reservations in employment may be impracticable. “Hence it is the opinion of this Court that in a country where 26,810,557 individuals suffer from different disabilities, a one size fit all model might not be the most efficient. That 40% on the IDEA scale makes individuals more or less employable cannot be held ideal. The legislature may consider to create a model where individuals suffering from different disabilities may be recognized and given benefits in terms of education, employment, health etc. which are suitable to their individual condition. The benchmarking through the IDEA scale may have to vary depending on different disabilities,” it observed.
With regard to the penalty of bar from appearing in public employment, the Court was of the opinion that the Central Administrative Tribunal (CAT) may consider in its discretion the proportionality of such imposition having regard to all the facts of the case.

livelaw.in/delhi-hc-highlights-deficiencies-persons-disabilities-pwd-act-suggests-reforms/

Read the Judgment here.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 03.05.2016 Pronounced on: 27.10.2016

LPA 222/2013, C.M. APPL.6087-6089/2013, 12337/2013 & 3344/2014

JADHAV VISHWAS HARIDAS …………Appellant 

Through: Ms. Meenakshi Arora, Sr. Advocate with Sh. M.G. Kapoor, Sh. Raj Patil and Ms. Aditi Deshpande, Advocates.

Versus

 

UNION PUBLIC SERVICE COMMISSION AND ORS ……..Respondents 

Through: Sh. Naresh Kaushik, Advocate, for UPSC. Sh. Ajay Digpaul, CGSC with Ms. Mohita, Advocate, for UOI.

CORAM: HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MS. JUSTICE DEEPA SHARMA 

  1. JUSTICE S. RAVINDRA BHAT
  1. The appellant, in this Letters Patent Appeal is aggrieved by the judgment of a learned Single Judge, dismissing his petition W.P.(C)447/2013 under Article 226 of the Constitution of India wherein a challenge was laid to Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act 1995 (“PWD Act”) as being unconstitutional to the extent that it excludes persons with mental illness for the purpose of job reservations. It was also challenged that there was no compensatory mechanism – in terms of time lost while fighting the disability and inter alia sought other consequential reliefs. The impugned judgment rejected the writ petition holding that no statutory or constitutional right of the petitioner was violated.

The facts

  1. The Appellant has lived with acute phases of mental illness [psychiatric disorder i.e. a severe depression with obsessive-compulsive disorder (OCD)] since 1996-97 until 2006; he belongs to a notified other backward class (“OBC”). Therefore, he was a “person with mental impairment/disability” within the meaning of the PWD Act. In terms of the IDEA scale, the disability suffered by the Appellant over the years was above 40% rendering him ineligible to receive benefits in terms of reservation in employment and education. He claims that due to his mental illness, he wasted several years of his life in the attempt to excel in employment (Central Civil Service) exams. He had appeared seven times (the maximum attempts an OBC candidate is allowed) in the combined Civil Services Examination but had failed on each occasion. Post 2006 when his condition improved he found no assistance to compensate for the time lost in combating the mental illness; more so, he was unable to attempt the examination again through the “Physically Disabled” (PD) quota. He consequently urges that if the PWD Act is not amended to include reservations in government jobs for similarly situated individuals as him, i.e. those who suffer mental illness, it would be arbitrary and discriminatory.
  1. Despite his disability, the Appellant claims that he prepared and appeared for the civil services exams in 2004, 2005, 2006 and 2007. Though he qualified in the preliminary examination, he was unable to clear the mains examination. In 2008, he cleared the mains examination but was not called for training since he stood lower in the OBC merit (he scored 1110/2300). He contends that had he been allowed to appear from the Physically Disabled Category, he would have been selected as he had scored far above the last candidate selected from the Physically Disabled Category (991/2300). In his final attempt the appellant obtained 875/2000 whereas the last candidate in the physical disability category scored only 723/2000. In 2011 when the appellant attempted to register for the Civil Services Exam, his form was rejected stating “Already availed maximum number of chances available to your category/(illegible) entry.”
  1. The Appellant claims that he visited Delhi and informed the Union Public Service Commission (UPSC) about his disability through his representation dated 15.04.2011 and requested for consideration of his candidature as a person with disability and grant him the benefit of additional attempts that he lost due to his mental illness. However, no such relief was provided. It is argued that the PWD Act mentions “mental illness” as a disability under Section 2(i) but provides no rehabilitation or benefits in terms of age relaxation/reservations in jobs (thereby denying persons similarly situated as him) a level playing field and equal opportunities. Further, the appellant states that Section 33 of the PWD Act which directs the Government to reserve in every establishment, a percentage of vacancies for persons with disabilities does not extend such reservation to those rehabilitated after mental illness. Section 33 only lists i) blindness or low vision, ii) Hearing impairment and iii) Locomotor disability or cerebral palsy as the disabilities for which at least one per cent vacancies must be reserved.
  1. The petitioner, had, before the learned Single Judge admitted that, pursuant to being a signatory to an international convention, an amendment to the PWD Act was pending before the Parliament; this amendment seeks to include persons with mental disabilities the benefit of reservation in employment. Counsel for the respondents argued before the learned Single Judge that when the relief sought by the petitioner is already a subject matter of a pending legislation before the Parliament, the Court could not grant such relief only on the basis of an international treaty considering that various administrative actions would be required like identification of jobs/ areas etc before the passing of an act giving effect to such international treaty.
  1. The learned Single Judge, agreeing with the counsel for respondents held that once the entitlement the petitioner seeks, is the subject matter of a pending legislation- where the intent of such legislation is to give effect to an international treaty, then the Court cannot direct employment purely on the basis of the international treaty. The learned Single Judge dismissed the petition by stating that it was not in the jurisdiction of the Court to lay out a time schedule for enactment of a law or making changes in existing legislation, by the concerned legislature and hence no statutory or constitutional right of the petitioner was violated.
  1. Ms. Meenakshi Arora, learned senior counsel for the appellant, urges that the impugned judgment is unsustainable. It is argued that the question of constitutionality of a provision is independent of whether amendment of legislation is proposed or not. It was argued that once Parliament had classified four broad heads of disability and defined the threshold limit for the purpose of disability, the question of further classification for the purposes of reservation in public employment did not arise. Counsel stresses that the petitioner admittedly fell within the category of disabled person. However, the further threshold that such individuals had to have a minimum percentage of the specified disability, and more crucially, the category of disability (though applicable uniformly) also has a discriminatory effect. It is urged that the two levels of over classification, i.e firstly confining state employment reservation only to two categories and denying to other categories, especially those with mental disabilities and further prescribing a minimum threshold has the effect of completely eliminating those with mental disabilities. Having once classified those with mental disabilities as persons with disabilities, the denial of employment reservation and prescription of minimum level of disability in their case, is discriminatory. It is argued that Section 33 of the PWD Act, to the extent it denies person with mental illness reservation in the employment is void and has to be suitably read down.
  1. It is argued that the object of the PWD Act was to ensure not only equality and elimination of barriers that disabled persons face, but also to see that they live independent lives with dignity in accordance with their choice. Various benefits are mandated, including educational provisions, measures to remove physical barriers to access to buildings and public spaces, provision of special amenities such as toilets, etc. Counsel contended that the inaction of the respondents in bringing the PWD Act in line with the Convention on the Right of Persons with Disabilities (2006) should not result in discrimination against those who fulfil the disability criteria but are denied the benefit of reservation.
  1. Learned senior counsel, relied on Union of India and Another Vs. National Federation of the Blind & Ors (2013) 10 SCC 772 to argue that all kinds of disabilities are to be reckoned for the purpose of providing reservation in public employment. The further restrictive approach adopted by the respondents, in limiting reservations in employment to only three categories, i.e locomotor disability, hearing disability and vision impaired individuals, is a hyper classification which is contrary to both Articles 14 and 16 of the Constitution of India.
  1. Mr. Naresh Kaushik, learned counsel appearing for the UPSC, argues that the claim in the present proceeding emanated out of a demand that reservation to those other than the three categories specified by the PWD Act should be provided. It was submitted that there is well-settled authority for the proposition that Parliament cannot be directed to make legislation; the task of the court is to see whether enacted law is contrary to any known constitutional principles. It was secondly argued that Parliament was cognizant of India’s obligations under the international conventions and treaties to which it was a party; precisely for that reason, the PWD Act was brought into force. Therefore, the Act cannot be faulted for not having provided something, which is to the petitioner/appellant’s liking, or not providing something, which is of use to him.
  1. The respondents further submitted that the appellant had availed of seven chances; in none of them did he mention that he was a disabled candidate. His explanation that the kind or category of disability was not provided for in the form made available to the candidates, for that purpose, is of no avail. Furthermore, the petitioner cannot say that he could not avail the requisite chances because as an OBC candidate, he did avail more chances than were available to open category candidates. Having so benefitted, he cannot complain that in a given examination, some PWD quota candidate secured less marks or percentage than him and was nevertheless provided employment in the quota made available to him or her. It is further submitted that the petitioner cannot seek relief in respect of the matter for which he has approached the Central Administrative Tribunal, i.e the debarment from exam for a tenure, given the non-disclosure of material facts in his form.

Analysis and Findings

  1. Article 1 of the Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Resolution 3447 (XXX) of the General Assembly of the United Nations dated 9th December 1975, entitled “Declaration on the Rights of Disabled Persons” recognized the need for special provisions for the empowerment of disabled persons and ensure dignity to them. The proclamation on the Full Participation and Equality of People with Disabilities in the Asia and Pacific Region, at Beijing [hereafter “Beijing Proclamation”], to which India was a party, was adopted on 1-5 th December, 1992. The Economic and Social Commission for Asia and the Pacific Region is the next important watershed moment in the move to extend equality and dignity as well as to ensure full participation of persons with disabilities in all walks of life. The PWD Act was enacted as an instance of legislative intervention to secure and achieve the goals pledged in the Proclamation.
  1. The Single Judge’s conclusions that the Court cannot direct Parliament or a legislature to amend the law, or enact a new law, are unexceptionable. Yet the writ petition, in this Court’s opinion, could not have been disposed off only with respect to claim/relief (a), given that reliefs, i.e. directions to the respondents to make “reasonable accommodation” in the light of provisions of UNCRDP and a further direction to increase the number of attempts available to persons with disabilities, were sought in the alternative.
  1. Undoubtedly, till Parliament enacts a law and gives effect to a treaty, its provisions cannot have application per se – this much is clear from Article 253 of the Constitution of India and the judgment of the Supreme Court in Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. 2008 (13) SCC 30. However, the relief claimed in this case had, in this Court’s opinion, some roots in enacted and existing law – especially Section 32 of the PWD Act. It is, therefore, essential to consider the appellant’s contentions regarding violation of Article 14 of the Constitution of India and whether any other alternative relief should be given.
  1. Since, in this case, the provisions of the PWD Act are in question, it would be useful to extract some of them. They are as below:

(1) Disability is defined by the Act under Section 2 (i) as
“Disability” means 

“Disability” means 

  1. i) blindness; 
  2. ii) low vision; 

iii) leprosy-cured; 

  1. iv) hearing impairment; 
  2. v) locomotor disability; 
  3. vi) mental retardation; 

vii) mental illness;” 

(2) Section 2(j) defines employer: 

“employer” means,- 

  1. i) in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and 
  2. ii) in relation to an establishment, the Chief Executive Officer of that establishment;” 

(3) Under Section 2 (k) an establishment is defined as follows: 

“establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government;” 

(4) Mental illness is defined as follows: 

“(q) “Mental illness” means any mental disorder other than mental retardation” 

(5) Mental retardation has been defined in the following terms: 

“(r) “Mental retardation” means a condition of arrested or incomplete development of mind of a person which is specially characterized by sub normality of intelligence;” 

(6) A person with disability is defined by the Act in the following terms: 

“(t) “person with disability‟ means a person suffering from not less than forty per cent of any disability as certified by a medical authority” 

(7) Chapter VI of the Act deals with the employment of persons with disabilities. The relevant Sections of the said Chapter are as under:- 

“32. Identification of posts which can be reserved for persons with disabilities. – Appropriate Governments shall- 

(a) identify posts, in the establishments, which can be reserved for the persons with disability; 

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. 

  1. Reservation of Posts – Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from- 

(i) blindness or low vision; 

(ii) hearing impairment; 

(iii) locomotor disability or cerebral palsy, in the posts identified for each disability: 

Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 

  1. Vacancies not filled up to be carried forward.- Where in any recruitment year any vacancy under section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: 

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.”

  1. In National Federation of the Blind & Ors (supra) relied on by the appellant, the Supreme Court held as follows:

“a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible. 

31) A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is “every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability.” It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section. 

32) The second part of this section starts as follows: “…of which one percent each shall be reserved for persons suffering from blindness or low vision, hearing impairment & locomotor disability or cerebral palsy in the posts identified for each disability.” From the above, it is clear that it deals with distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word “of which”. The word “of which” has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Union of India is sought to be justified by bringing the last portion of the second part of the section viz. “….identified posts” in this very first part which deals with the statutory obligation imposed upon the appropriate Government to “appoint not less than 3% vacancies for the persons or class of persons with disabilities.” In our considered view, it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part the words used are “in the identified posts for each disability” and not “of identified posts”. This can only mean that out of minimum 3% of vacancies of posts in the establishments 1% each has to be given to each of the 3 categories of disability viz., blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived. 

33) The third part of the Section is the proviso which reads thus: “Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” The proviso also justifies the above said interpretation that the computation of reservation has to be against the total number vacancies in the cadre strength and not against the identified posts. Had the legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to Section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the Section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts.”

  1. The Act is an instance of benevolent social legislation. The Supreme Court has emphasized that such benevolent enactments ought to be given liberal and expansive interpretation, and not narrow or restrictive construction (Madan Singh Shekhawat v. Union of India, 1999 (6) SCC 459; Deepal Girishbhai Soni v. United India Insurance Co. Ltd. AIR 2004 SC 2107; and Babu Parasakaikadi v. Babu AIR 2004 SC 754). If this Court were to agree with the Respondents, the interpretation would defeat the objective of enacting Section 33. As the court is interpreting a benevolent social welfare legislation, its purpose must be given the paramount consideration. Section 33 is not an exhaustive list of all sub-categories within the meaning of disability and to that extent is merely illustrative. If separate quotas are not provided, there is a danger of the disability quota being availed of only by one category of disabled; the other groups could be disadvantaged because of their condition. What the section, however, mandates is that minimum reservation to the extent of 3% should be made of which one per cent each should be set apart for the three enumerated categories. The equalizing principle which suffuses the entire enactmentright from its objective, to reservations, to ensuring non-discrimination at the workplace and promoting a barrier-less physical environment, cannot in the opinion of the court, be read as confining the state’s responsibility to providing reservations for only three distinct categories, when there can possibly be others as well.
  1. The structure of Section 33 supports this Court’s conclusion: the controlling phrase is the obligation to reserve “such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from…” for the enumerated three categories, i.e vision impairment, locomotor disability and hearing impairment. The clear allusion of “such percentage” of vacancies and the further reference in favour of “persons or class of persons with disability” leaves no doubt that the obligation to provide reservations is not only to the three enumerated categories, or only to the extent of 3 percent, but a wider one. However, the further statutory interdict of ensuring one per cent each to the three enumerated categories, is to ensure that such quantum is assured to those with disabilities of that kind or category- in their case, the reservation to that extent is obligatory and compulsive.
  1. There is no doubt that the appellant’s grievance about his inability to obtain any effective aid from the PWD Act leaves him no benefit. To that extent, the court’s interpretation of the obligation to provide benefits for all, is helpful. However, to yield any significant result, this court should also be able to conclude that the omission to provide reservation for other categories or spelling out a similar mandate (not less than one percent) is discriminatory. Here, the court experiences difficulty in arriving at such a conclusion. It is one thing to say that all persons with disabilities are to be treated alike; however, to enable each one of them equal rights to reservation, it is also essential to recognize that the kinds of disabilities might also differ. The mechanism provided by Parliament, i.e first through identification of posts, (that can be manned or filled by persons with disability) is equally part of the PWD Act. In National Federation of the Blind (supra), the court held that total vacancies available in a cadre should be reckoned to the extent that the construction benefits persons with disability. However, the post identification exercise under Section 32 requires an in-depth analysis of the nature of duties and responsibilities attached to the particular post or posts, which might then be recommended for inclusion (for the purpose of PWD reservation). Now, this exercise has not been challenged. The rationale for such provision appears to be the assumption (not entirely unfounded) that certain posts, by the nature of duties attached are unsuitable to persons with disabilities (a glaring example could be the post of a pilot vis-à-vis a person with severe visual impairment given that a person with disability should have an impairment of not less than 40%). The post identification exercise under Section 32 in this case – which resulted in the omission to include mental illness as a category of disability for the purpose of reservations under the civil services, has resulted in eliminating the appellant from consideration for reservation under Section
  1. The legitimacy of this exercise cannot be challenged. At the same time, during the hearing the respondents were unable to shed any light as to why those suffering from mental illness have not been included in the list of reserved categories entitled to reservations.
  1. By Section 2(q) “Mental illness” is defined as “any mental disorder other than mental retardation”. Though not illuminating, the clear demarcation between mental retardation on the one hand and mental disorder (not amounting to retardation) is to a certain extent helpful. Oxford English dictionary defines mental disorder as “A condition which causes serious disorder in a person’s behaviour or thinking” (https://en.oxforddictionaries.com/definition/mental_illness accessed at 17:50 hrs, 14 October, 2016). The Mental Health Act defines a “mentally ill” person as one “who is in need of treatment by person of any mental disorder other than mental retardation”. Now, there are two paradoxes at work here – the first is that  those with mental illness are altogether excluded from consideration for any employment under the Section 33 reservation; two, and importantly, that mental disorders are of varied severity and extent. Even mental illness can differ significantly as to use of a person’s skills acquired during one’s life time. For instance, severe depression or disorders such as schizophrenia could seem as complete barriers to jobs. However, the severity of those conditions may vary, as well as their extent: they may be temporary and entirely brought under control. To club all these with the severest form of mental illness or disorder may be unjustified. The irony here is that someone with a fairly low degree of illness (say to the extent of 25% or 35%) would not fall within the definition of “person with disability” whereas one with a greater degree of disability (say 90% and total) may not be able to work at all, given the nature of illness. This is where the appellant’s grievance has to be addressed. The “one size fits all” assumption that one with disability should have at least 40% of that condition may be justified and work well for person with vision or hearing impairment or locomotor disability. However, applying that matrix to person with mental disability could eliminate him or her altogether from consideration (whereas one who may technically be a person with disability, may be excluded altogether because of its very nature and its hindrance to normal discharge of public employment functions). Yet again, there is the legislative mandate of carrying post identification exercise once in three years, having regard to advancement in technology. Now this mandate is useful not only in relation to availability of devices and tools such as hearing aids, etc (to enable hitherto unemployable persons with hearing disability for jobs which might now be conveniently performed by them) but also in relation to the kinds of medication and medical breakthrough resulting in ailments and conditions becoming amenable to treatment and control. If this mandate were to be given its logical effect, yet, the threshold of 40% disability might prove to be an additional barrier for those with mental illness or disorder.
  1. After the Beijing Proclamation, the United Nations Convention for rights of Persons with Disabilities-2006 was adopted; India ratified the convention on 1st October, 2007. Article 4 (1) obliges all state parties to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability and to that end State Parties undertook to “to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”. The convention provided for the principle of equality and non-discrimination as follows: “Article 5 – Equality and non-discrimination 1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law. 2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds. 3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.”
  1. The Office of the Registrar General & Census Commissioner of India released Data on Disability under the Census of India 2011. In the 2011 Census, information on eight types of disability was collected namely – 1) in seeing, 2) in hearing, 3) in speech, 4) in movement, 5) mental retardation, 6) mental illness, 7) any other, 8) multiple disability (Source: C-Series, Table C-20, Census of India 2011,http://www.censusindia.gov.in). The data highlights showed that a total of 26,810,557 individuals or 2.21% of the total population of India suffer from disabilities. Between the census conducted in 2001 and 2011, there has been an increase of 22.4% in the number of individuals suffering from disabilities. The number of individuals suffering from Mental Retardation or Mental Illness was estimated at 2,228,450. 8.3% of all disabled individuals in the country suffer from either Mental Retardation or Mental Illness. Further, individuals suffering from Multiple Disabilities were estimated at 2,116,487 (7.9% of all disabled individuals). Further the categories of Mental Retardation and Mental Illness were new categories introduced in the Census 2011 that need to be delved into further. Individuals suffering from specific Mental Disabilities require specific reservations and aid in terms of education and more importantly employment and these can only be provided by the State through the pending legislative proposals when the data collected is more detailed regarding the actual conditions of individuals.
  1. These figures show that there are a significant number of persons with disabilities who suffer from mental illness or disorder (over 2 million). Given these numbers, it cannot be said that Parliament intended that they should be kept out of any kind of public employment (regardless of its severity). The facts of this case highlight that what appears to be a standard norm for one category of persons with disability cannot be universally applied: the result would be the opposite, i.e, the total exclusion of that category in the exercise of post identification under Section 32.
  1. The Appellant relied on the Right of Persons with Disabilities Bill, 2012 which introduced drastic changes in the Persons with Disabilities Act, 1995 so as to make it in tandem with the UN Convention on the Rights of Persons with Disabilities. Currently, a further amended Right of Persons with Disabilities Bill, 2014 has been introduced in the Rajya Sabha but as yet not been passed. This Bill seeks to replace the Persons with Disabilities Act, 1995. Instead of seven disabilities specified in the Act, the bill covers 19 different conditions. The Bill confers several rights and entitlements to disabled persons and has been brought in to fulfill obligations under the international treaty that learned senior counsel for the appellant has referred to at numerous occasions in her arguments.
  1. In order to prescribe guidelines for evaluation and assessment of Mental illness and procedure for certification, a Committee was constituted by the Department of Health, Government of India vide Order dated 6th August, 2001 under the Chairmanship of Director General of Health Services on the basis of request made by the Ministry of Social Justice and Empowerment. The committee decided that the minimum degree of disability, in order to be eligible for any concessions or benefits would be 40% under the IDEA (Indian Disability Evaluation Assessment) scale ( http://www.ccdisabilities.nic.in/page.php?s=&t=pb&p=guide_mental– Office of The Chief Commissioner for Persons with Disabilities).
  1. It is the opinion of this Court that a blanket 40% disability test to provide reservations in employment may be impracticable. A particular disability suffered by an individual might require specific aid and comes with specific restrictions. An individual suffering from a visual disability could avail specific benefits in terms of reservations in employment, as his mental condition is normal. Such an individual might be suffering from a disability of over 40% on the IDEA scale but his employability may not be affected. On the other hand, a different individual suffering from another disability of above 40% on the IDEA scale might not be employable for certain positions as his mental condition could be adversely affected. Hence it is the opinion of this Court that in a country where 26,810,557 individuals suffer from different disabilities, a one size fit all model might not be the most efficient. That 40% on the IDEA scale makes individuals more or less employable cannot be held ideal. The legislature may consider to create a model where individuals suffering from different disabilities may be recognized and given benefits in terms of education, employment, health etc. which are suitable to their individual condition. The benchmarking through the IDEA scale may have to vary depending on different disabilities. However, this remains within the legislative domain and since there is a move to amend the Act, the court – in accordance with well settled principles on this subject cannot direct the enactment of legislation.
  2. This court, therefore, concludes that there is some deficiency in the existing law, i.e the PWD Act, both with respect to providing reservations as well as the classification of all persons with disabilities as one having at least 40% of any specified or enumerated condition, which can well be the reason for ultimate discrimination. Whilst it is within executive domain to categorize which post can be suitable for what kind of person or persons with disability, the absolute minimum threshold of 40% in the case of certain kinds of disabilities could be the barrier – unwitting though the case may be, and eliminate from the post identification exercise persons with such disabilities altogether. This clearly has a discriminatory result, and an indirect discriminatory effect. Having arrived at this conclusion, the court is conscious that neither is this result capable of judicial redress (as that would involve the court judicially enacting law, by reading words into the statutean entirely unwarranted intrusion into Parliamentary power) nor can existing law be suitably read down or severed. Furthermore, and more fundamentally, this court does not have empirical data or scientific medical expertise in the matter and would have to hazard conclusions based on some materials which it might source, or intuitively guess. Whatever be the manner of exercise of power, such assumption of quasi-executive and legislative power can prove to be a remedy worse than the disease.
  3. What the court can and proposes, is to direct the respondent and the Central Government to, with the aid of appropriate subject experts in mental illness and disorders, study the problems which have resulted in total exclusion and denial of persons suffering from mental illness the benefits of reservation under Section 33 of the PWD Act and also determine if the threshold of 40% under the PWD Act needs revision based on which an appropriate law could be made, or existing law amended.
  4. As far as the appellant’s grievance with respect to “lost opportunities” is concerned, this court is unable to redress the grievance. At the same time, this court notes that the appellant availed seven chances, and did not at the time when a person with a notified disability was appointed -with lower marks than him- articulate such grievance. That ground is consequently held to be meritless. As far as the penalty of bar from appearing in public employment goes, though the matter is not before us, the Court is of opinion that the Central Administrative Tribunal (CAT) may consider in its discretion the proportionality of such imposition having regard to all the facts of the case. However, this is only an observation and cannot be construed as a direction.
  5. For the foregoing reasons, the court is of opinion that though the appellant’s grievances are to an extent justified, the remedy lies in amending the law. The court commends the respondents to take action towards a proper evaluation of the matter, in the light of the observations in paras 28-30 above. The appeal is dismissed, subject to the above observations.
  1. RAVINDRA BHAT (JUDGE)          DEEPA SHARMA (JUDGE)

OCTOBER 27, 2016

 

http://lobis.nic.in/ddir/dhc/SRB/judgement/27-10-2016/SRB27102016LPA2222013.pdf

Related posts

Comment (1)

  1. K SHESHU BABU

    The disability act should be implemented with suitable modifications. In most cases, the quota for disabled persons is not being filled. The government should develop a monitoring committee to oversee the implementation of the act strictly.

Leave a Reply

%d bloggers like this: