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Gauhati High Court rejects petition against Assam Public Service Commission recruitment finding no violation of reservation policy.

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Case title:  RAIHANA AKHTAR VS THE STATE OF ASSAM

Case no.:   WP(C)/3534/2017

Dated on: 3RD May 2024

Quorum:  Hon’ble. MR Justice SANJAY KUMAR MEDHI

FACTS OF THE CASE

The controversy raised in this petition filed under Article 226 of the Constitution of India is in connection with a recruitment process initiated by the Assam Public Service Commission (APSC) for different posts of Lecturers in the Nursing Colleges of Assam. The petitioner has structured his petition on two principal grounds, firstly, violation of the reservation policy and secondly, the mode adopted for such selection.

ISSUES

  • Whether the petitioner’s claims regarding the selection process are factually and legally tenable based on the evidence and submissions provided.
  • Whether the selection based solely on viva-voce was legitimate given the number of applications received and the stipulations in the advertisement.
  • Whether the Assam Public Service Commission (APSC) violated the reservation policy in the selection process for the post of Lecturer in the O&G Department in Nursing Colleges of Assam.

LEGAL PROVISIONS

Constitution of India

Article 226 of the Constitution of India: Provides the High Courts with the power to issue certain writs. The petitioner invoked this article to challenge the recruitment process conducted by the Assam Public Service Commission (APSC). Article 226 allows individuals to seek judicial review of any action by the state or public authorities that they believe violates their fundamental rights or legal entitlements.

CONTENTIONS OF THE APPELLANT

Shri Bhuyan, learned counsel for the petitioner has submitted that amongst the various posts advertised, there were 5 nos. of posts of Lecturer in the O&G Department for which, the petitioner had applied. Out of the 5 vacancies, 3 were for unreserved category and 2 for reserved category. It is not in dispute that the petitioner belongs to the unreserved category. The petitioner on her application, was issued a call letter on 30.08.2016 and the interview was scheduled on 05.09.2016 in which, the petitioner had appeared, However, in the results published, the petitioner was not amongst the selected candidates. Shri Bhuyan, learned counsel for the petitioner has submitted that the communication towards declaration of results dated 24.03.2017 would indicate that only one general category candidate has been selected for appointment as Lecturer in O&G Department and the 4 other vacancies have been filled up by reserved category candidate. The learned counsel has, however, fairly submitted that from the affidavit-in-opposition filed by the APSC, it transpires that two of the selected candidates who belong to reserved category candidate have been. treated as general category on account of their merits. He, therefore, contends that he would not press upon the said ground of challenge. Shri Bhuyan, learned counsel, however, has strenuously canvassed that the procedure adopted for selection is not in terms of the stipulations made in the advertisement. By referring to the mode indicated in the advertisement, it is submitted that the selection was to be held by written test/interview and it stipulates that the Commission may short-list the candidates either on the basis of the marks obtained in the qualifying academic examination required for the post in question or by holding screening test (multiple choice objective type written examination) which would be notified. It is submitted that none of the procedures were adopted and only on the basis of viva-voce, the selection has been done which is not as per the mode indicated in the advertisement. The learned counsel, accordingly submits that the selection is to be interfered with and the candidature of the petitioner be considered in proper perspective.

 CONTENTIONS OF THE RESPONDENTS

Shri Mahanta, learned Senior Counsel representing the APSC, however, has submitted that even the existing ground of challenge is, both factually and legally untenable. He submits that the interpretation of the mode given on behalf of the petitioner is not correct. It is submitted that under heading ‘C’, the precondition for going for short listing the candidates on the basis of the marks obtained in the qualifying academic examination or by holding a screening test is that the number of applications should be large. By drawing the attention of this Court to the affidavit-in-opposition filed by the APSC on 06.01.2024, the learned Senior Counsel has submitted that for the 5 nos. of vacancies in the post of Lecturer O&G, the total number of applications received were 16. It is submitted that the said number of 16 is even less than the number which is envisaged for maintaining a ratio of 1:6. It is accordingly submitted on the behalf of the APSC that there was no requirement for adopting either of the two modes for short listing and the candidates were accordingly interviewed based upon which, the selection has been made. It is further submitted that the mode of selection as such, by interview is not the subject matter of challenge as the petitioner had participated in the said selection process without any objection. Shri Borah, learned Standing Counsel, Health Department while endorsing the submissions made on behalf of the APSC has further submitted that the APSC is the statutory body through which selections are made and there does not appear that there has been any anomalies in the said selection. He accordingly prays for dismissal of the writ petition.

 COURT’S ANALYSIS AND JUDGEMENT

On consideration of the submissions made and the materials placed on record, this Court has noted that the first ground regarding the allegation of violation of the reservation policy has appeared to be factually untenable in view of the facts projected in the affidavit-in-opposition of the APSC that two candidates of reserved category has been appointed in the vacancy meant for unreserved category on the basis of their merits. The aforesaid provision of the advertisement has clearly indicated the mode of selection as written test/interview. The said heading further stipulates two options of short listing the number of candidates on the basis of the marks obtained in the qualifying academic examination or by holding screening test. It is, however, noted that either of the two options are to be exercised only when the application received is large. In the instant case, admittedly, for 5 nos. of vacancies, the total number of applications received is 16. Therefore, there was no requirement at all for adopting either of the two options and accordingly, the candidates who had applied were subjected to a viva-voce test. The petitioner having participated in the said selection process in the mode adopted by the advertisement without any demur will not be allowed to challenge the mode that too, on a ground which apparently appears to fallacious. This Court is of the considered opinion that the grounds of challenge structured is both legally and factually untenable and accordingly, the writ petition is dismissed. 

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Judgement Reviewed by – HARIRAGHAVA JP

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Inclusion and Equality: Understanding Disability Rights Legislation in India.

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Abstract

This article delves into the progress, present status, and influence of disability rights legislation in India, highlighting the journey towards inclusivity and equality for people with disabilities (PwDs). With a population of over 26.8 million PwDs, India has made notable legislative advancements, particularly through the Rights of Persons with Disabilities Act, 2016 (RPWD Act). This Act signifies a transition from a welfare-based to a rights-based approach, broadening the definition of disability, increasing reservations in education and employment, focusing on accessibility, and imposing penalties for discrimination. Despite these legislative strides, challenges in implementation remain. Insufficient awareness and sensitization among stakeholders, limited infrastructure and digital accessibility, and systemic barriers hinder the effectiveness of reservation policies. Additionally, the lack of accurate data collection and monitoring mechanisms hampers policy improvements. Government initiatives like the Accessible India Campaign and the National Action Plan for Skill Development, along with efforts by civil society in advocacy, legal support, and community-based rehabilitation, are crucial in addressing these challenges. Technology, particularly assistive and accessible digital technologies, plays a key role in enhancing the independence and participation of PwDs.

The article presents successful implementation case studies such as Kerala’s Barrier-Free Tourism Initiative, Delhi University’s Equal Opportunity Cell, and Tata Consultancy Services’ employability programs, demonstrating the potential for inclusive development. Looking ahead, the focus should be on strengthening the enforcement of the RPWD Act, improving accessibility, promoting inclusive education, expanding employment opportunities, fostering positive societal attitudes, and leveraging technology. Achieving true inclusion and equality requires collaborative efforts from the government, civil society, and the private sector, ensuring that all individuals, regardless of their abilities, can fully and equally participate in society.

Introduction

Disability rights are fundamental human rights. Ensuring that people with disabilities (PwDs) have equal opportunities and access to various aspects of society is crucial for fostering an inclusive and equitable community. India, home to over 26.8 million people with disabilities according to the 2011 Census, has taken significant legislative steps to safeguard these rights. This article delves into the evolution, current state, and impact of disability rights legislation in India, exploring the challenges and future directions for fostering true inclusion and equality.

Evolution of the Concept of Disability

The journey towards disability rights in India has been gradual, marked by significant milestones. Historically, disability was viewed through a lens of charity and welfare, rather than rights and empowerment. This perspective began to shift in the latter half of the 20th century, influenced by global movements and changing societal attitudes.

  • Early Initiatives

In 1986, the Ministry of Welfare formulated the National Policy for Persons with Disabilities, which aimed to integrate PwDs into mainstream society. However, it was not until the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), that a comprehensive legislative framework was established. The PWD Act was a significant step forward, focusing on education, employment, and the creation of a barrier-free environment for PwDs.

  • International Influence and the UNCRPD

India’s commitment to disability rights was further strengthened by its ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2007. The UNCRPD played a crucial role in shaping India’s approach to disability, emphasizing dignity, autonomy, and non-discrimination.

  • The Rights of Persons with Disabilities Act, 2016

The most significant legislative advancement in recent times is the Rights of Persons with Disabilities Act, 2016 (RPWD Act). This Act replaced the PWD Act of 1995, aligning India’s laws more closely with the principles of the UNCRPD. The RPWD Act marked a paradigm shift from a welfare-based approach to a rights-based approach.

Key Provisions

Broadened Definition of Disability: The RPWD Act expanded the categories of disabilities from Sec. 7 to 21, including conditions like autism, intellectual disability, and multiple disabilities. This inclusive definition ensures that a wider range of disabilities is recognized and protected under the law.

Reservation in Education and Employment: The Act mandates a 4% reservation in government jobs and a 5% reservation in higher education institutions for PwDs, up from the previous 3%. This provision aims to enhance educational and employment opportunities for PwDs.

Accessibility: The Act emphasizes the creation of a barrier-free environment. It mandates the formulation of accessibility standards for physical infrastructure, transportation, information, and communication technology.

Guardianship and Legal Capacity: The RPWD Act recognizes the legal capacity of PwDs and provides for the appointment of limited guardians only when necessary. This provision respects the autonomy and decision-making abilities of PwDs.

Penalties for Discrimination: The Act introduces penalties for discrimination against PwDs, ensuring accountability and legal recourse for violations.

Implementation Challenges

While the RPWD Act is comprehensive, its implementation faces several challenges:

Awareness and Sensitization: A significant gap exists in awareness and understanding of the provisions of the RPWD Act among stakeholders, including government officials, employers, educators, and the general public. Sensitization programs are essential to bridge this gap and foster a more inclusive society.

Infrastructure and Accessibility: Despite the mandates, physical and digital accessibility remains a major challenge. Many public buildings, transportation systems, and digital platforms are not fully accessible, limiting the participation of PwDs in various aspects of life.

Education and Employment: The implementation of reservation policies in education and employment often falls short due to systemic barriers, lack of adequate support systems, and societal attitudes. Ensuring that educational institutions and workplaces are equipped to accommodate PwDs is crucial.

Data and Monitoring: Accurate data collection and monitoring mechanisms are essential to assess the effectiveness of the RPWD Act. Currently, there is a lack of comprehensive data on the implementation and impact of the Act, hindering policy planning and improvement.

Government and Civil Society Initiatives

Both the government and civil society organizations play a crucial role in addressing these challenges and promoting disability rights.

Government Initiatives

  • Accessible India Campaign (Sugamya Bharat Abhiyan):Launched in 2015, this campaign aims to make public spaces, transportation systems, and information technology accessible to PwDs. The campaign focuses on creating a barrier-free environment through infrastructure development and awareness programs.
  • National Action Plan for Skill Development:This plan focuses on enhancing the skills and employability of PwDs through vocational training programs, aiming to increase their participation in the workforce.
  • Inclusion in Education Policies: Various policies and schemes, such as the Sarva Shiksha Abhiyan (SSA) and the Integrated Education for Disabled Children (IEDC) scheme, aim to promote inclusive education and provide support services for children with disabilities.

Civil Society Initiatives

  • Advocacy and Awareness:Numerous non-governmental organizations (NGOs) and advocacy groups work towards raising awareness about disability rights, advocating for policy changes, and providing support services to PwDs.
  • Legal Support and Counseling: Organizations like the National Centre for Promotion of Employment for Disabled People (NCPEDP) provide legal support and counseling to PwDs, helping them navigate the legal system and fight for their rights.
  • Community-Based Rehabilitation (CBR):CBR programs, run by NGOs and community organizations, focus on empowering PwDs at the grassroots level, providing healthcare, education, and livelihood opportunities.

The Role of Technology

Technology plays a pivotal role in advancing disability rights and inclusion. Assistive technologies, such as screen readers, hearing aids, and mobility devices, enhance the independence and participation of PwDs. The proliferation of digital platforms and online services also offers new opportunities for education, employment, and social interaction.

However, ensuring digital accessibility remains a challenge. Websites, mobile applications, and digital content need to be designed with accessibility in mind, adhering to standards like the Web Content Accessibility Guidelines (WCAG). The government and private sector must invest in accessible technology to bridge the digital divide.

Case Studies

Examining real-life examples of successful implementation of disability rights can provide valuable insights and inspiration.

  • Case Study 1: Kerala’s Barrier-Free Tourism Initiative

Kerala’s initiative to make tourist destinations accessible to PwDs is a commendable example of inclusive development. The state government, in collaboration with various stakeholders, has worked to make popular tourist spots, hotels, and transportation systems accessible. This initiative not only promotes tourism but also highlights the potential of inclusive infrastructure to boost economic development.

  • Case Study 2: Inclusive Education at Delhi University

Delhi University’s Equal Opportunity Cell (EOC) has been instrumental in promoting inclusive education. The EOC provides various support services, including assistive devices, accessible study materials, and special accommodation during exams. These efforts have significantly improved the academic experience and success rates of students with disabilities.

  • Case Study 3: Employability Initiatives by Tata Consultancy Services (TCS)

TCS has implemented various initiatives to enhance the employability of PwDs, including skill development programs, accessible workplace infrastructure, and sensitization workshops for employees. These efforts have not only increased the number of PwDs in their workforce but also fostered a more inclusive corporate culture.

Future Directions

While significant progress has been made, there is still much to be done to achieve true inclusion and equality for PwDs in India. Future efforts should focus on:

  • Strengthening Implementation and Enforcement: Robust mechanisms for monitoring and enforcing the provisions of the RPWD Act are crucial. This includes regular audits, penalties for non-compliance, and transparent reporting.
  • Enhancing Accessibility: Continued efforts to improve physical and digital accessibility are essential. This includes updating infrastructure, promoting universal design principles, and ensuring that new developments are accessible from the outset.
  • Promoting Inclusive Education: Inclusive education should be a priority at all levels, from primary to higher education. This requires adequate training for educators, accessible learning materials, and support services for students with disabilities.
  • Expanding Employment Opportunities: Beyond reservation policies, there is a need for inclusive hiring practices, workplace accommodations, and support for self-employment and entrepreneurship among PwDs.
  • Fostering Societal Attitudes and Awareness: Changing societal attitudes towards disability is fundamental. Public awareness campaigns, community engagement, and education can help reduce stigma and promote a culture of inclusion.
  • Leveraging Technology: Investment in accessible technology and innovation can significantly enhance the independence and participation of PwDs. This includes both assistive technologies and ensuring that mainstream technologies are accessible.

Conclusion

Inclusion and equality for people with disabilities in India are not just legal mandates but moral imperatives. The legislative framework, particularly the RPWD Act, provides a strong foundation for safeguarding the rights of PwDs. However, the journey towards true inclusion requires concerted efforts from the government, civil society, and the private sector. By addressing implementation challenges, promoting awareness, and leveraging technology, India can move closer to a society where all individuals, regardless of their abilities, can participate fully and equally.

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Employees cannot be denied relief when their entitlements are refused due to unreasonable factors: Supreme Court

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Case title: Union of India (UOI) and Ors. Vs. D.G.O.F. Employees Association and Ors.

Case no.: Civil Appeal No. 1663 of 2016

Decided on: 09.11.2023

Quorum: Hon’ble Justice A.S Bopanna, Hon’ble Justice Pamidighantam Sri Narasimha

FACTS OF THE CASE:

An association of workers at the Ordnance Factory Board’s headquarters is the respondent. In order to align with similarly placed employees of the Central Secretariat Service (‘CSS’), equivalent posts in the Armed Force Headquarters Civil Service (‘AFHCS’), and comparable other cadres, they requested an increase in the pay scales of Assistant and Personal Assistants of the Ordnance Factory Board, Headquarters. It did not receive approval from the Ministry of Defence. The Respondents came before the CAT in response to their complaints. Additionally, the CAT rejected the prayer, which led to the High Court’s writ proceedings.

The High Court, after reviewing the case, concluded that the Respondent’s members had previously been treated as equals to CSS/CSSS employees, with equal pay and benefits. While setting aside the CAT’s order, the High Court determined that the Respondents were entitled to the benefit under paragraph 3.1.9 of the VI Central Pay Commission’s recommendations.

ISSUE RAISED:

Whether the employees at the headquarters are in the same positions as the CSS/CSSS employees?

APPELLANTS CONTENTION:

The appellant argued that unless there is obvious discrimination or arbitrariness can be proven, the judiciary’s authority to review pay scale decisions is restricted. Regarding the clause found in the VI CPC’s recommendations, the appellants attempt to invoke paragraph 3.1.14, which suggested a replacement pay scale. The respondents’ reliance on paragraph 3.1.9 is contested, with the argument that it does not apply to OFB employees and does not offer any additional benefits. In this context, it is evident that the High Court took into account both the pay scale specified in the VI CPC and the intention stated in paragraph 3.1.9 that called for parity, having noted that the successive CPC recommendations had led to parity in pay scales and that, in light of such equal treatment historically, the Court had also taken these factors into consideration.           

COURT ANALYSIS AND JUDGEMENT:

The court held that the court may step in when there is no disagreement about the qualifications, responsibilities, and duties of individuals holding equivalent posts or ranks but they are treated differently simply because they work for different departments or the criteria used to classify someone is clearly unfair, arbitrary, or irrational. Because they work in the Ordnance Factory headquarters and are thus in a similar position to the Assistants in CSS/CSSS Army Headquarters and other similarly placed organisations mentioned in the recommendations, the conclusion regarding pay parity in the case of the employees who are members of the first respondent is primarily in place.

Court on review of the High Court’s impugned judgement reveals that the High Court, having considered both the legal and factual aspects, did not proceed in such a way as to equate two sets of employees in different organisations. However, in light of the Pay Commission’s recommendation and the applicability of the pay scales suggested to similarly situated employees working at the headquarters, recognising discrimination despite historical similarity has only corrected the error and does not necessitate intervention. Therefore, Appeal denied.

 

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Written by – Surya Venkata Sujith

 

 

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The Calcutta High Court: – Ruled that it is “sexist” to distinguish between a married and unmarried daughter in compassionate employment.

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Title: – Dipali Mitra & Ors. V Coal India Limited & Ors.

Case No.: – WPA 14349/2018

Decided on: 17/10/2023.

Coram: The Hon’ble Justice Shekhar B. Saraf

Introduction: –

The Calcutta High Court has determined that the National Coal Wages Agreement-VI’s Clause 9.3.3, which distinguishes between “married” and “unmarried” daughters for the purposes of compassionate appointment, is extra vires and violates Articles 14 and 15 of the Constitution. A single bench of Justice Shekhar B. Saraf held that the primary requirement for consideration of an application seeking compassionate appointment is to show dependency upon the deceased employee and financial exigency. The bench dismissed the petitioners’ plea for compassionate appointment, noting that the petitioners’ primary reasons for seeking the same was dependency on the deceased employee and financial exigency. It was assumed that a daughter’s marriage status made her less dependent on her mother or father and more on her husband, which is “misogynist”.

The Government was asked by the Court to investigate “archaic laws/policies” that uphold the sexist “natural” order of things and revise them in conformity with Article 14 of the Constitution’s equal gender principles.

Brief Facts: –

The current writ petition was filed by the petitioners, who were related to the late Shibdas Mitra, an employee of Eastern Coalfields Limited, Kolkate (ECL), requesting a compassionate appointment in favor of a son-in-law or married daughter under Clause 9.3.3 of the National Coul Wages Agreement-VI (NCWA-VI).

Petitioner no. 1’s wife had requested a compassionate appointment for her son-in-law, petitioner no. 2, a.k.a. a “indirect dependant,” on the grounds that the family’s only source of income was the dead employee and that their son, a direct dependant, was living in Sweden. ECL denied the son-in-law’s request for a compassionate appointment, citing the existence of the dead employee’s son as a direct descendant. However, the married daughter of the deceased employee was not taken into consideration.

Petitioner No. 1 then submitted her own application for compassionate appointment, but it was denied because the 45-year-old age requirement for hiring a female dependent had been exceeded. Petitioner no. 1 then requested a compassionate appointment on behalf of her daughter, who is married.

Outraged by this, the petitioners went to the High Court, which was resolved by ordering the respondents to issue a reasoned order supporting or opposing the petitioners. This was done by issuing an order that denied the married daughter of the deceased compassionate employment.

Petitioners filed an appeal against the contested order with the ECL; however, they received no answer. Consequently, they filed an application under Article 226 with the High Court.

Judgement: –

The Court addressed the Petitioner no. 2’s argument that the compassionate appointment was an exception “carved out against the general rule of merit-based recruitment,” not a vested or inherited entitlement. Regarding the question of whether the NCWA’s distinction between married and unmarried daughters is beyond the scope of Articles 14 and 15 of the Constitution, the Court determined that there was no applicable reasonable classification.

In the end, the Court decided that the petitioner’s writ petition should be denied because they had not come before the Court in a clean manner and because the married daughter was living with her husband and had never shown that she was dependent on the deceased employee, even though the son-in-law was earning a living and supporting himself. The petitioners’ submission of incorrect ages and fake affidavits, together with their request for a compassionate appointment for their married daughter just four years after the deceased’s death, were discovered by the court. The Bench also expressed its opinion and provided greater insight into the “arbitrary distinction” between married and single daughters in an afterword.

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Written By: Sushant Kumar Sharma.

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