LATEST COURT DIERECTIONS ON PWD ACT IMPLEMENTATION

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (CIVIL) NO. 116 OF 1998
JUSTICE SUNANDA BHANDARE FOUNDATION Petitioner(s)
VERSUS
U.O.I. & ANR Respondent(s)
WITH
WRIT PETITION (CIVIL) NO. 115 OF 1998
WRIT PETITION (CIVIL) NO. 430 OF 2000
CIVIL APPEAL NO. 6442 OF 1998
CIVIL APPEAL NO. 6443 OF 1998
J U D G M E N T
R.M. LODHA, J. :
Writ Petition (Civil) No. 116 of 1998
In this Writ Petition filed by the petitioner
– a charitable trust, the prayers made are (i) for
implementation of the provisions of the Persons with
Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 (for short,
'1995 Act'), (ii) direction for the reservation
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of 1% of the identified teaching posts in the
faculties and college of various Universities in
terms of Section 33 of the 1995 Act, and (iii) for
declaration that denial of appointment to the
visually disabled persons in the faculties and
college of various Universities in the identified
posts is violative of their fundamental rights
guaranteed under Articles 14 and 15 read with
Article 41 of the Constitution of India.
2. Initially, two respondents, namely, (one)
Union of India through its Secretary, Ministry of
Welfare and (two) University Grants Commission
(U.G.C.) through its Chairperson were impleaded as
party respondents.
3. On 07.10.1998, the Court ordered impleadment
of the States and so also the Union Territories and,
accordingly, respondent Nos. 3 to 34 were impleaded
as party respondents.
4. On 13.09.2001, the Court directed the Chief
Commissioner for Persons with Disabilities, Ministry
of Social Justice and Empowerment, Government of
India to be impleaded as party respondent and
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consequently it has been impleaded as respondent
No. 35.
5. Then on 18.02.2009, the Court directed
Commissioners for Persons with Disabilities of
various States and Union Territories to be impleaded
as party respondents and consequently respondent
Nos. 36 to 70 have been impleaded who are
Commissioners for Persons with Disabilities in
different States and Union Territories.
6. Certain interim orders have been passed by
this Court from time to time.
7. Insofar as U.G.C. (respondent No. 2) is
concerned, the Court was informed on 19.03.2002
through counter affidavit that U.G.C. has acted in
compliance of the 1995 Act. In paras 3, 6, 7 and 8 of
the counter affidavit filed on behalf of the Chief
Commissioner for Persons with Disabilities, it was
stated :
"3. It is humbly submitted that in
pursuance of Section 32 of the Persons
with Disabilities Act (Equal
Opportunities Protection of Rights and
Full participation) Act, 1995, the
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appropriate government (Government of
India) has updated the list of identified
posts. This list has been issued vide
Extraordinary Gazette Notification No.
178 dated 30.6.2001. In this list, the
posts of University/College/School
Teacher for the blind and low-vision have
been listed at Sl. No. 24-27 on page No.
592.
6. The Chief Commissioner for
Person with Disabilities has taken
cognizance of the arrangements provided
by the University Grants Commission for
persons with disabilities by way of
extending 5% relaxation in cut off marks,
appearing in the NET for Junior Research
Fellowship and Lectuership. Thus, the
arrangement extended by UGC is in
consonance with the policy stand taken by
Govt. of India in so far as relaxation
in minimum standard is concerned.
Relaxation in standards has been favoured
only when the candidates belonging to
reserved categories are not available on
the basis of the general standard to fill
all the vacancies reserved for them.
7. The relaxation extended to SC
& ST candidates as per Maintenance of
Standard 1998 of the Universities,
provides for a 5% relaxation from 55 % to
50% in the marks obtained at Master's
Degree. Since reservation for the
disabled is called horizontal reservation
which cuts across all vertical categories
such as SC, ST, OBC & General.
Therefore, all such blind/low-vision
persons who belonged to SC, ST vertical
category would automatically enjoy the
benefit of 5 % relaxation at the minimum
qualifying marks obtained at Master's
Degree level. Thus, only the blind and
low vision belonging to OBC & General
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categories are deprived of the relaxation
of 5 % marks at masters' level.
8. The blind/low-vision and
other visually disabled persons belonging
to SC & ST category are in any case
enjoying the benefit of 5% relaxation in
marks obtained at the master's level for
appearing in the NET examination
conducted by the UGC. By extending the
same relaxation to particularly
blind/low-vision and in general all
disabled at par with SC & ST disabled
would bring parity amongst all persons
with disabilities irrespective of their
vertical categories."
8. Thus, insofar as U.G.C. is concerned, this
Court in the order 19.03.2002 observed that nothing
survives for consideration and the matter is disposed
of as against U.G.C.
9. On 19.07.2006, the Court directed the Union of
India and the State Governments to file their
responses in the form of affidavits within a period of
four weeks, failing which it was observed that the
Court may be compelled to direct personal appearance
of the Chief Secretaries of the concerned States
though the Court would like to avoid in making such a
direction. Some of the States have filed their
responses and some have not.
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10. Be that as it may, the beneficial provisions
of the 1995 Act cannot be allowed to remain only on
paper for years and thereby defeating the very purpose
of such law and legislative policy. The Union, States,
Union Territories and all those upon whom obligation
has been cast under the 1995 Act have to effectively
implement it. As a matter of fact, the role of the
governments in the matter such as this has to be
proactive. In the matters of providing relief to
those who are differently abled, the approach and
attitude of the executive must be liberal and relief
oriented and not obstructive or lethargic. A little
concern for this class who are differently abled can
do wonders in their life and help them stand on their
own and not remain on mercy of others. A welfare
State, that India is, must accord its best and special
attention to a section of our society which comprises
of differently abled citizens. This is true equality
and effective conferment of equal opportunity.
11. More than 18 years have passed since the 1995
Act came to be passed and yet we are confronted with
the problem of implementation of the 1995 Act in its
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letter and spirit by the Union, States, Union
Territories and other establishments to which it is
made applicable.
12. Ms. Sunita Sharma, learned counsel for the
Union of India, informs us that insofar as Union of
India is concerned, it has implemented the provisions
of the 1995 Act and the reservation of 1% of the
identified teaching posts in the faculties and college
of various Universities in terms of Section 33 of the
1995 Act has been done.
13. In our view, the 1995 Act has to be
implemented in the letter and spirit by the Central
Government, State Governments and Union Territories
without any delay, if not implemented so far.
14. We, accordingly, direct the Central
Government, State Governments and Union Territories to
implement the provisions of the 1995 Act immediately
and positively by the end of 2014.
15. The Secretary, Ministry of Welfare, Government
of India, the Chief Secretaries of the States, the
Administrators of Union Territories, the Chief
Commissioner of the Union of India and the
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Commissioners of the State Governments and Union
Territories shall ensure implementation of the 1995
Act in all respects including with regard to visually
disabled persons within the above time.
16. Writ Petition is disposed of in the above
terms.
Writ Petition (Civil) No. 115 of 1998, Writ Petition
(Civil) No. 430 of 2000, Civil Appeal No. 6442 of
1998 and Civil Appeal No. 6443 of 199 8
Writ Petitions and Appeals are disposed of in
terms of the judgment passed today in Writ Petition
(Civil) No. 116 of 1998.
2. No costs.
3. Interlocutory Applications for intervention
and impleadment filed in Civil Appeal No. 6442 of
1998, in view of the above, do not survive and they
stand disposed of as such.
..............................J.
( R.M. LODHA )
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..............................J.
( SUDHANSU JYOTI MUKHOPADHAYA )
NEW DELHI; ..............................J.
MARCH 26, 2014 ( DIPAK MISRA )

New orders of DoPT

No.36035/3/2o9-Estt.(Res)

Government of India

Ministry of Personnel, Public Grievances and Pensions

Department of Personnel and Training

*******

North Block, New Delhi.

Dated the 315J; March, 2014.

OFFICE MEMORANDUM

                          Subject: Guidelines for providing certain facilities in respect of persons with

                                         disabilities who are already employed in Government for efficient

                                          performance of their duties

                                                                                      *****

                  A need has been felt to issue guidelines to provide certain additional facilities

/amenities to the persons with disabilities (PWD) to enable them to effectively discharge

their duties. The facilities such as identification of jobs, post recruitment and prepromotion

training, assistive devices, free accessibility, preference in transfer/posting,special casual leave, etc. have been identified as areas which require special attention.The proposed facility indicated in the guidelines should be applicable in respect of such employees working in the Ministries/Departments of the Government of India, theirattached and subordinate offices, Central Public Sector Enterprises, Cantonment Boardsetc.

2. An inter-ministerial committee was formed to finalise guidelines for providing certain facilities in respect of persons with disabilities, who are already employed in efficient discharge of their duties. Based on the discussions held with the stakeholders and suggestion received from the stakeholders, the following guidelines are issued toprovide certain facilities/amenities to the persons with disabilities:-

A. Identification of jobs

Each Ministry/Department of the Government of India, their attached and subordinate offices, Central Public Sector Enterprises, Cantonment Boards etc should identify the types of jobs which could be easily performed by them specially for Group B, C and D posts where the number of jobs are more. Such persons should preferably be posted to perform such identified jobs and they be allowed to continue performing such jobs, as far as possible. If the concerned PWD officer could perform all the jobs as people without disability or could perform several types of jobs efficiently, no effort should be

made to instruct them to certain types of jobs only.

B. Post recruitment and Pre-promotiong

Induction training is an essential component of the service requirement of an employee. Induction training programme for the persons with disabilities should be imparted together with the other employees. Job specific post-recruitment as well as pre-promotion training programmes are required to be organised for the persons with disabilities. Outlining a specific module/norm for training programme for the persons with disabilities common to all the Ministries/Departments and their attached/subordinate offices, Central Public Sector Enterprises, Cantonment Board, etc. may not be possible as the training requirement may be different on the basis of the work pattern. All the Ministries / Departments should take definite action to conduct job specific inclusive training programmes for the persons with disabilities with other employees. Duration and training contents may be finalized in consultation with the National Institutes under the Department of Disability Affairs, Ministry of Social Justice & Empowerment and, if felt necessary, prominent Associations/Federations/Confederations workings in the sphere of disability can be consulted. It

should also be ensured that training programmes are conducted at the time of change in job, introduction of new technology, after promotion of the employee, etc. The venue of the training may be fixed as considered suitable for conducting such training. The Ministries/Departments and their offices shall utilize existing Budget provisions for undertaking the aspects of training programme.

The employee with disability shall be placed with an experienced employee for at least one month on resuming responsibility of a post. This would help him to pick up skills required to perform the job and also the adaptations that may be required in individual cases.

C. Providing aids/assistive devices

The persons with disabilities could perform their duties efficiently if they are provided with aids and appliances which are suitable to their needs. Ministries /Departments and their attached and subordinate offices, Central Public Sector Enterprises, Cantonment Board, etc. should assist the persons with disabilities by providing them high tech/latest technology led assistive devices (including low vision aids, hearing aids with battery), special furniture, wheel chairs (motorised if required by the employee), software scanners, computer and other hardware, etc. in accordance

with their requirement, which would improve their efficiency.

They should either provide or shall reimburse the cost of such devices with a specific time period for such devices to persons with disabilities in accordance with the price/durability of the special devices, special furniture, software, scanners, computer and other hardware, etc. as fixed by them, in consultation with various National Institutes working in the sphere of disability. A review exercise

shall be carried out by the Departments/Ministries every three years to check the availability or need for introduction of enhanced/upgraded versions of such devices/software etc. They shall utilise their existing budget provisions for providing these facilities.

D. Accessibility and barrier free environment at work place

In addition to the guidelines for modification in all public buildings including Government offices to provide easy accessibility and barrier free environment for PWDs as per the provisions of the PWD Act, all Government offices should take special steps to provide barrier free and accessible work stations to PWD employees, access from main building entrance to their work stations and access to common utility areas such as Toilets, canteens etc. Lifts/elevators should be made accessible by providing Braille signage and audio outputs. Wherever required, suitable colour contrast may also be

made available in buildings, utilities, staircases, etc. for the benefit of low vision employees.

E. Preference in Govt. accommodation

The Directorate of Estates may give preference to the persons with disabilities for providing them accessible accommodation near their place of posting and they may be preferred for allotment of ground floor accommodation. Possibility of existing housing accommodations being renovated to make them conveniently accessible to persons with disabilities, be explored by the Directorate of Estates.

F. Grievance redressal

Some of the employees including persons with disability may be got trained by the empanelled Master Trainers/Offices of various National Institutes working in the sphere of disability to develop their skills in handling grievances relating to PWDs. The Liaison Officer appointed to look after reservation matters for SCs, STs may also act as the Liaison Officer for reservation matters relating to persons with disabilities. The Liaison Officer would also look after the issues relating to providing of amenities for the persons with disabilities. In addition, every Ministry/Department, their attached and

subordinate offices, Central Public Sector Enterprises, Cantonment Board, etc., would preferably constitute a Grievance Redressal Mechanism headed by the Head of Administration and comprising at least two employees including a PWD having knowledge in disability matters. The Committee so constituted would receive and try to redress the grievances  of persons with disabilities within a reasonable time frame.

G. Special Casual Leave

Vide this Department's OM No. 25°11/1/20°8-Estt.(A) dated 19.11.2oo8, a provision of Special Casual Leave for 4 days in a calendar year has been made for the employees of Central Government with disabilities for specific requirements relating to disabilities of the official. Further, vide this Department's OM No. 28°16/02/2°07-Estt(A) dated 14.11.2°07, there is also a provision of io days Special Casual Leave in a calendar year subject to exigencies of work for the differently abled Central Government employees with disabilities for participating in Conference/Seminars/Trainings/Workshop related to disability and development to be specified by Ministry of Social Justice & Empowerment.

H. Preference in transfer/posting

As far as possible, the persons with disabilities may be exempted from the rotational transfer policy/transfer and be allowed to continue in the same job, where they would have achieved the desired performance. Further, preference in place of posting at the time of transfer/promotion may be given to the persons with disability subject to the administrative constraints. The practice of considering choice of place of posting in case of persons with disabilities may be continued. To the extent feasible, they may be retained in the same job, where their services could be optimally utilised.

3. Every Ministry/Department in consultation with the Office of the Chief Commissioner for Persons with Disabilities would arrange for training of the Liaison Officer on "Disability Equality and Etiquettes".

'4. All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities under their control, for information and compliance. The Department of Public Enterprises may ensure to give effect the above guidelines in the all the Central Public Sector Enterprises.

(G. Srinivasan)

Deputy Secretary to the Government of India

Tel: 2369 3 074

 

To

The Secretary, all the Ministries / Departments of the Government of India.

The Secretary, Department of Public Enterprises, CGO Complex, New Delhi

with a request to issue necessary instructions .to give effect the above

guidelines in the all the Central Public Sector Enterprises.

The Secretary, Department of Financial Services, Jeevan Deep Building, New

Delhi with the request to consider issuance of similar guidelines for PSU banks.

The Secretary, Railway Board, Rail Bhavan, New Delhi.

Union Public Service Commission/Supreme Court of India/Election Commission

of. India/Lok Sabha Secretariat/Rajya Sabha Secretariat/Cabinet

Secretariat/Prime Minister's Office/Planning Commission.

The Chairman, Staff Selection Commission, CGO Complex, Lodi Road, New

Delhi.

Office of the Chief Commissioner for Persons with Disabilities, Sarojini House,

6, Bhagwan Das Road, New Delhi-moot

Office of the Comptroller and Auditor General of India, io, Bahadur Shah Zafar

Marg, New Delhi.

All Officers and Sections in the Ministry of Personnel, Public Grievances and

Pensions and all attached/subordinate offices of this Ministry.

Information and Facilitation Centre, DOPT, North Block, New Delhi- zo copies.

opy to Director, NIC, DOP&T- with a request to place this circular on the

website of this Ministry, for information of all concerned

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