[AI] Landmark CCPD judgements: complete text

avinash shahi shahi88avinash at gmail.com
Sat Nov 24 01:26:58 EST 2012


Thank you sir for sharing these Landmark judgements.
We all should read
On 11/24/12, Prashant Ranjan Verma <pr_verma at hotmail.com> wrote:
> 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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>


-- 
Avinash Shahi
MPhil Research Scholar
Centre for the Study of Law and Governance
Jawaharlal Nehru University
New Delhi India




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