Dear all,
Please make a note of the two important judgements issued by Mr. Prasanna
Kumar Pincha, Chief Commissioner for Persons with Disabilities.
These two judgements relate to identification of jobs and common exam
writing guidelines.
I only wish earlier CCPD's had shown such remarkable courage and activism.
The complete text of the two judgements is copied below. The same is also
available on CCPD website.
***** Regarding identification of posts *******
In the Court of the Chief Commissioner for Persons with Disabilities
Ministry of Social Justice & Empowerment
Case No. 859/1011/12-13
Dated: 23.11.2012
In the matter of:
Suo-motu
Versus
Ministry of Social Justice & Empowerment,
Department of Disability Affairs,
Through : Secretary,
Shastri Bhawan, New Delhi.
... Respondent
Date of Hearing : 20.11.2012
Present :-
1. Shri K.V.S. Rao, Director
. On behalf of Respondent
2. Non appeared.
. On behalf of the Complainant
O R D E R
1. Section 32 of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995, hereinafter referred to as the Act, provides as under:-
""Every appropriate Government 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."
2. The list of identified posts for persons with disabilities
under Section 32 of the said Act was last issued vide Ministry of Social
Justice and Empowerment's Notification Nos.16-70/2004-DD-III dated 18.1.2007
for Group A and B posts and dated 15.3.2007 for Group C and D posts
respectively. Going by the mandate of Section 32 of the said Act, issuance
of a revised/updated list of identified posts in Group A and B fell due on
17.1.2010 and in Group C and D on 14.3.2010. Thus, the Department of
Disability Affairs, Ministry of Social Justice & Empowerment, Government of
India, had not complied with the mandate of Section 32 of the said Act nor
did they respond to the Chief Commissioner's letter dated 11.7.2012
3. This Court vide letter No.9-10/CCD/2008/R3920 dated 11th July,
2012 followed by letter dated 29.08.2012 had suggested to the Ministry of
Social Justice & Empowerment as follows :-
(I) It would be expedient to set up Committees well before the
expiry of three years from the date of issuance of last notifications for
identification of posts with a mandate, inter alia to complete the task in
defined time frame.
(ii) Compliance with all the provisions of the Act including the
provision contained in Section 32 thereof must be ensured with utmost
seriousness.
.
(iii) Since the issuance of notification of revised/updated
list of identified posts was long over due, Ministry of Social Justice &
Empowerment, Govt. of India should notify the same within one month.
4. The Department of Disability Affairs, Ministry of Social
Justice & Empowerment vide letter No.16-15/2010-DDIII dated 11.9.2012
submitted that the report of the Expert Committee constituted to
identify/review the posts to be reserved in Group 'A', 'B', 'C' & 'D' posts
for persons with disabilities was received in January, 2012. While
examining the said report, it was felt necessary to seek certain inputs from
Member-Secretary of the Committee and a few National Institutes. Their
comments have since been received last week. Though the Department assured
that it would endeavour to finalize the matter at the earliest, no
definitive time frame within which the notification of revised/updated list
of identified posts would be issued in compliance with the mandate of
Section 32 of the Act was given.
5. Department of Disability Affairs, Ministry of Social Justice &
Empowerment, Government of India vide Notice of Complaint to Show Cause &
Hearing dated 17.9.2012 was directed to explain as to why it should not
issue notification containing revised/updated list of identified posts in
compliance with Section 32 of the said Act latest by 15.10.2012. Else, the
respondent/his/her representative was directed to appear on 1.11.2012 at
3.00 p.m. to present the case. The hearing was, however, adjourned to
20.11.2012 at 11.00 A.M. on the request of the Department of Disability
Affairs.
6. The representative of the respondent submitted that the
matter relating to the revised list of identified posts alongwith draft
Notification has been submitted to the Hon'ble Minister for her approval.
It would be notified immediately after it is approved by the Hon'ble
Minister and is translated into Hindi. He, however, did not specify any
time frame within which the revised list of identified posts would be
notified.
7. On a meticulous examination of the submissions of the
respondent contained in D.O. letter dated 11th September, 2012 together
with the submissions made in the course of hearing, this Court observes as
follows:-
(i) That Section 32 of the Persons with
Disabilities Act casts an obligation on the appropriate Government, the
Respondent Department in the instant case, to review and notify
lists/revised lists of identified posts at periodical intervals not
exceeding three years keeping in mind the developments which have happened
in the filed of science and technology.
(ii) That there has been a distinct non-compliance
with the provisions of Section 32 by the respondent Department on account of
disproportionate delay in reviewing and notifying a revised and up-dated
list of identified posts. Incidentally, the list of identified posts was
last notified by the respondent Department in the year 2007 which means that
the revised and up-dated list should have been notified in the year 2010.
(iii) That the delay in reviewing and notifying the
list of identified posts is likely to prejudicially affect the legitimate
entitlements and benefits conferred on persons with disabilities by Section
33 of the Persons with Disabilities Act since only those posts can be
reserved which have been identified.
(iv) That this Court further observes that there has
been a recurring non-compliance of Section 32 by the respondent Department
evidenced by the fact that post the enactment of Persons with Disabilities
Act, the first revised and up-dated list of identified posts which should
have been notified in the year 2004 was notified in the year 2007. It goes
without saying that the first list of identified posts was notified by the
respondent Department post enactment of the PWD Act in the year 2001.
(v) That a perusal of the Notice of Complaint to
Show Cause and Hearing dated 17.9.2012 would reveal how the respondent
Department kept on ignoring the advice of this Court communicated to it
from time to time.
8. In view of the foregoing, this Court is pleased to direct
respondent to notify the revised/up-dated list of identified posts within 30
days from the date of receipt of this order and also to ensure that the
provisions of Section 32 of the Persons with Disabilities Act are complied
with in letter and spirit. Action taken may be intimated to this Court.
9. A copy of this Order may be posted on the Website of this
Court as soon as may be.
Sd/
(P.K. Pincha)
Chief Commissioner
for Persons with Disabilities
****** Regarding comprehensive common exam writing guidelines *******
Case No.3929/2007
Dated: 23.11.2012
In the matter of:
Shri Gopal Sisodia
General Secretary
Indian Association of the Blind
154/C, Delhi Administration Flats,
Sindhoran Kalan, Delhi-110052.
... Complainant
Versus
State Bank of India, Mumbai
.. Respondent No.1
Banking Division, Ministry of Finance, New Delhi.
Respondent No.2
Department of Disability Affairs,
Ministry of Social Justice & Empowerment
Through : Secretary,
Shastri Bhawan, New Delhi.
... Respondent No.3
Case No. 65/1041/12-13
In the matter of:
Score Foundation
Through Shri George Abraham, CEO,
17/107, LGF, Vikram Vihar,
Lajpat Nagar-4,
New Delhi-110024.
... Complainant
Versus
Department of Disability Affairs,
Ministry of Social Justice & Empowerment
Through : Secretary,
Shastri Bhawan, New Delhi.
... Respondent
Date of Hearing : 20.11.2012
Present:-
1. Mr. George Abraham with Neha Saigal on behalf of Complainant](In Case
No.65/1041/12-13)
2. None appeared on behalf of Complainant (In Case No.3929/07)
3. Shri K.V.S. Rao, Director on behalf of Respondent
O R D E R
Shri Gopal Sisodia, General Secretary, Indian Association of
the Blind, the Complainant filed a complaint dated 13.5.2007 (Case
No. 3929/2007) under the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation )Act,
1995, hereinafter referred to as the 'Act', regarding issuance of
comprehensive Policy for conduct of written examinations for persons with
disabilities.
2. After two hearings in the case, it was decided to implead
Ministry of Social Justice & Empowerment and the following directions were
issued:-
(a) The complainant to submit a draft of the
guidelines/provisions that need to be included for the scribe to MSJE by 8th
November, 2007.
(b) Ministry of Finance, in consultation with
Reserve Bank of India, Indian Bank Association and the other stake holders
to submit their views to MSJE by 8th November, 2007.
(c) MSJE with their input, may circulate the draft
guidelines/criteria for the scribe to respondent 1 & 2 and other
stakeholders and invite their comments and thereafter finalise the
guidelines for scribes, preferably within 3 months.
3. During the third hearing on 30.11.2007, the Counsel for the
Complainant submitted that any policy regarding facilities to be given to
visually impaired and other persons with disabilities for writing the issues
should not be finalized without consulting the stakeholders, particularly
the beneficiaries of the policy. The representative of the Ministry of
Finance submitted that RBI and State Bank of India had submitted their
comments which had been forwarded to the Ministry of Social Justice &
Empowerment. Ministry of Social Justice & Empowerment informed that a number
of suggestions from individuals/organizations had been received which needed
to be consolidated and considered. As a considerable period of time had
already elapsed, MSJ&E was advised to forward copies of all the suggestions
within a week for consideration. A meeting was thereafter convened under the
Chairmanship of Chief Commissioner on 19.2.2008 to hear the stakeholders and
finalize the recommendations for a policy. After detailed deliberations with
the stakeholders, the recommendations were forwarded to Ministry of Social
Justice & Empowerment vide letter No. 1-2(Scribe)/ CCD/2007 dated 17.3.2008.
After a number of correspondence, Chief Commissioner for Persons with
Disabilities vide letter dated 26.9.2011 advised MSJ&E to issue the
guidelines within a month of receipt of that letter.
4. In the meantime another complaint dated 6.6.2012 (Case
No.65/1041/12-13) was received from Score Foundation, which was also
forwarded to the Department of Disability Affairs vide letter dated
31.07.2012 with the request to issue the guidelines within one month from
the date of the said letter incorporating the suggestions contained in the
letter of Score Foundation dated 6.6.2012.
5. Department of Disability Affairs vide their letter dated
13.09.2012 submitted that they had decided to organize workshops/seminars
through its National Institutes to gather views of persons with disabilities
for making provision of a scribe before finalizing a uniform policy for
persons with disabilities in various examinations. It was further stated
that the consultations were yet to commence. However, the matter was under
active consideration as views of certain National Associations in this field
had been received and were being deliberated upon. It was also stated that
all efforts to finalize the policy were being made.
6. This Court vide letter dated 04.09.2012 requested Department
of Disability Affairs to issue the guidelines on or before 20.09.2012,
failing which, it was stated, this Court may be constrained to issue Show
Cause Notice. Accordingly, as the guidelines were not issued, a notice of
complaint to show cause and hearing was issued on 21.9.2012 with the advice
to issue the guidelines by 20.10.2012; else to appear before this Court on
2.11.2012. The matter was re-scheduled for hearing on 20.11.2012 on the
request of Department of Disability Affairs.
7. During the hearing on 20.11.2012, the representative of Score
Foundation in case No.65/1041/12-13 reiterating his submissions envisaged in
his complaint dated 23.4.2012, stressed the need for issuance of uniform
and comprehensive guidelines for persons with blindness and persons with
low vision as they continue to be routinely subjected to untold hardship and
disadvantage for want of such uniform and comprehensive guidelines. He
further submitted that the document which has been put together by Score
Foundation and others could be circulated to all concerned as guidelines so
that these guidelines can be used as a reference by various stake holders
for developing their own norms with regard to conduct of examinations as
stated above in respect of candidates with disabilities. The complainant
further stated that several of the bodies conducting examinations are
unaware of ways in which candidates with blindness and/or with low vision
can be included in the examination process. He further added that several
examination conducting Authorities under-estimate the capabilities of blind
and low vision persons to participate in the examination process.
8. The representative of Department of Disability Affairs,
Ministry of Social Justice & Empowerment, Government of India submitted that
the guidelines forwarded by Chief Commissioner for persons with disabilities
were being considered by the Ministry. He added that before taking a final
view in the matter, the Ministry had convened a meeting with the
recruitment authorities/agencies like Staff Selection Commission, Union
Public Service Commission, CBSE and sensitized them about the proposed
guidelines. These authorities were requested to send the detailed comments
on each of the points made by the Chief Commissioner for persons with
disabilities so that their implementation is ensured. While the comments of
these authorities/agencies were received, the subsequent meeting to be held
with them to finalize the matter could not be held. It was also decided by
the Ministry to request the National Institutes working under the Ministry
to organize consultations to discuss the guidelines framed by Chief
Commissioner for Persons with Disabilities. Even this consultation could
not be held so far. Recently, on receipt of a reference from Score
Foundation, the matter was again examined at the highest level and it was
decided to take action on the guidelines framed by Chief Commissioner for
Persons with Disabilities for reaching its logical conclusion. He further
stated that a meeting would be convened in the middle of December this year
with the relevant recruitment and academic bodies. After consulting these
bodies, uniform and comprehensive guidelines would be issued to all
concerned for compliance.
9. In the light of foregoing, this Court is pleased to observe as
follows:-
(i) That the question of issuance of uniform and
comprehensive guidelines in the matter of conduct of all kinds of
examinations (both recruitment related and academics related) involving
persons with disabilities has been under consideration by the Respondent
Department for quite a few years now as can be seen from the relevant Show
Cause Notice/Notice of hearing dated 21.9.2012.
(ii) That it goes without saying that in the
absence of such uniform and comprehensive guidelines, persons with
disabilities including the persons with blindness and low vision continued
to be routinely subjected to prolonged and pervasive hardship and
disadvantage with the result that more often than not, many candidates with
disabilities have to run from pillar to post getting to fix various problems
relating to taking off examinations by them such as issues around
amanuenses, use of low vision aids, use of computers, extra time etc. etc.
(iii) That this Court notes with utter dismay and shock that this
matter did not move forward with the Ministry since 2008 and 2009 and it
continues to hang fire compounding the hardship, disadvantage and
irreparable loss faced by persons with disabilities.
(iv) That while the instant complaints relate specifically to
persons with blindness and low vision, this Court is also equally concerned
about the hardships and disadvantage faced by persons belonging to other
categories of disabilities as well in the matter of taking examinations.
(v) That the guidelines put together by the Complainant Score
Foundation and other concerned persons with low vision only, and they do not
take on board the concerns of persons belonging to other categories of
disabilities.
(vi) That the guidelines put together by the office of the Chief
Commissioner for Persons with Disabilities after elaborate consultations
with primary and other stake holders including persons with blindness and
persons with low vision etc.
(vii) That this Court acknowledges that developing guidelines and
norms in the matter of this ilk has to be an evolving process characterized
by reasonable flexibility so as to cater to the exigencies of a given
situation and also to take on board the advancement which takes place in the
field of science and technology with the efflux of time.
(viii) That in view of the foregoing, the issuance of uniform and
comprehensive guidelines as stated above brooks no delay.
10. This Court, therefore, directs the Respondent Department to
complete all necessary processes & procedures, finalize and circulate for
compliance uniform and comprehensive guidelines to all concerned put
together by this Court with or without modifications as may be necessary for
conduct of all kinds of examinations within two months from today.
11. Copy of this Order may be posted on the Website of this Court
as soon as may be.
( P.K. Pincha )
Chief Commissioner
for Persons with Disabilities
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