In
the Court of State Commissioner for Persons with Disabilities
National Capital
Territory of Delhi
25- D, Mata
Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]
Case No. 228/1121/2018/05/7572-74 Dated:
31.05.2018
In
the matter of:
Sh. Rajiv Goel,
367, ASB, Paschim Vihar,
New Delhi-110063. .………
Complainant
Versus
The Pr.Secretary,
Deptt. of Health & Family Welfare,
GNCT of Delhi,
9th Level, A-Wing, Delhi
Secretariat,
New Delhi-110002. …...…Respondent
Date of hearing: 30.05.2018
Present Sh. Rajiv Goel, Complainant.
Dr. A Madhavi, Dy. Director(Disab.)
ORDER
The
above named complainant vide his email dated 06.05.2018 submitted that his son Master
Kshitij Goel, who is 7.5 years old has been diagnosed with Attention Deficit Hyperactivity Disorder
(ADHD) and Specific Learning
Disability(SLD). He needs a disability
certificate to get the benefit of reservation for admission to University. He approached IHBAS for disability
certificate. However, they refused to issue the disability certificate on the
ground that as per the guidelines issued by Department of Empowerment of
Persons with Disabilities (DEPwD), Ministry of Social Justice and Empowerment
vide notification dated 04.01.2018, IHBAS is not competent to issue certificates
for SLD. He further submitted that he has met officials at all levels in IHBAS
and he has come to know that Govt. of NCT of Delhi has not authorized any
hospital in Delhi for issuance of disability certificate for SLD. The
guidelines for issuance of disability certificate for SLD mandate the presence
of Pediatrician and Pediatric Neurologist as part of medical authority and
IHBAS does not have Pediatrician or Pediatric Neurologist on its rolls and
hence is unable to issue the certificates of disability for SLD.
2. The complainant requested to direct
Govt. of NCT to notify hospitals as per provisions of the DEPwD, Ministry of Social Justice and Empowerment’s Notification
dated 04.01.2018 and also direct IHBAS to constitute a medical
board for the purpose of issuing disability certificate without the presence of
a Pediatrician or Pediatric Neurologist.
3. The complaint was taken up with the
respondent under the Rights of Persons with Disabilities, 2016 hereinafter
referred to as the Act vide letter dated 08.05.2018 detailing therein the
request of this Court regarding
designating certifying authorities for specified disabilities including specific learning disability vide letters dated 06.03.2018 and 24.04.2018
and decision in a meeting taken by the State Commissioner on 16.04.2018. As
there was no response and the complainant vide his subsequent emails informed
that he has not been able to get the disability certificate in respect of his
son, a Show-Cause-Cum-Hearing Notice was issued on 24.05.2018. In
the said notice, Principal Secretary, Health and Family Welfare Department
(H&FW) was directed why the certifying authorities should not be designated
in NCT of Delhi for all the specified disabilities in the Act by 29.05.2018.
The respondent was also directed to arrange
to assess and issue the certificates of disability to all the eligible applicants;
and if the same was not done by 29.05.2018, the respondent was directed to appear
on 30.05.2018 at 11.30 AM.
4. While the complainant and Dr. A.
Madhavi, Dy.Director(Disb.), representing Secretary, Social Welfare Department,
to whom the copy of the Notice dated 24.05.2018 also emailed appeared, the
respondent i.e. the Health & Family Welfare Deptt. (H&FW) neither
submitted any status nor did anyone appear to represent Pr. Secretary(H&FW).
Apparently, appropriate action has not
been taken by the H&FW Department to ensure assessment and certification of
the newly included specified disabilities despite the fact that the issue of
designating certifying authorities had been taken up with that Department and other concerned authorities
ever since the Guidelines for assessment of specified disabilities were
notified by the Department of Empowerment of Persons with Disabilities,
Ministry of Social Justice and Empowerment, Govt. of India on 04.01.2018.
5. No response/ATR in this case has been
received from the respondent. However,
Health and Family Welfare Department vide their letter dated 14.03.2018 in
response to letter dated 07.02.2018 Department of Social Welfare requested
Directorate General Health Services (DGHS), GNCT of Delhi to issue instructions
to all medical institutions responsible for grant of certificate of disability
to follow the notified guidelines for evaluation and certification of various
categories of specified disabilities.
DGHS was also requested to conduct workshops to train the medical
authorities about the new guidelines to facilitate smooth issuance of certificates
of disability in a time bound manner. The department also requested DGHS to
implement the recommendation vide their letter dated 11.05.2018 in the meeting
taken by State Commissioner on 16.04.2018 and to issue an advisory/directions
to all Govt. hospitals that issue disability certificate in the present to
continue issuing the disability certificates in accordance with the guidelines
notified by Department of Empowerment of Persons with Disabilities on
04.01.2018 in respect of all the disabilities specified in RPwD Act, 2016. An ATR was also sought to be furnished to
this Court within three days under intimation to Health and Family Welfare
Department. However, no report has so
far been received.
6. In another letter dated 22.05.2018, Health
and Family Welfare Department in case no. 139/1121/2018/03, has informed this
Court, “that as per new RPwD Act, 2016,
the Hospitals have not been notified by the Delhi Government till yet as the
Draft Delhi State Rules under RPwD Act, 2016 has not been finalized by Social
Welfare Department, GNCT of Delhi. However, in this regard this office has
already requested the DGHS to issue necessary instructions to all medical
institutions responsible for grant of certificate of disability to follow the
notified guidelines of Govt. of India for RPwD Act, 2016 for evaluation and
certification of various categories of specified disabilities vide this office
letter dated 14.03.2018”. In
response, this Court vide letter no. 139/1121/2018/03/7552 dated 30.05.2018 has
informed the respondent that as per Section 57 of the Act, designation of
certifying authority for assessment and certification of disability is not dependent on Delhi RPwD Rules. The respondent has therefore been requested
to designate the certifying authorities so that persons with disabilities are
assessed and certified as per the guidelines issued by Department of
Empowerment of Persons with Disabilities vide notification dated 04.01.2018.
7. Dr. A. Madhavi,Dy.Director (Disb.),
informed that the draft Delhi Rights of Persons with Disabilities Rules have
been notified in the Delhi’s e-Gazette inviting suggestions / objections from
the people within a period of 30 days. The
said draft Rules which were circulated
to all the Departments including the Health and Family Welfare Department, also provide that the H&FW shall
designate the certifying authorities and notify their jurisdiction. Thereafter the rules will be finalized and
notified with the approval of Hon’ble Lt. Governor. However, absence of Rules
does not prohibit the Department of Health and Family Welfare from designating
the certifying authorities. As regards the jurisdiction, the notification dated
12.02.2014 for the purpose stands. She
further submitted that it is not possible for the Social Welfare Department to
identify the certifying authorities in the existing hospitals in NCT of Delhi. This can be done only by the H&FW
Department.
8. Reiterating his written submissions,
the complainant submitted that admissions in the Universities in Delhi are going
to start from 18th June, 2018
and the students with disabilities seeking admission against the 5% reserved
seats for them must have a disability certificate as per the requirement of the
concerned universities. His son, Master Kshitij Goel, who has been diagnosed
with Specific Learning Disability has passed class 12th exam and he needs a valid disability certificate to
be able to apply for admission against the reserved seats.
9. It may be recalled that while
disposing off case No. 106/1121/2018/02
filed by Ms. Simmi Copra, vide Para 14 of the Order dated 19.03.2018, it
was recommended that Pr.Secretary Health and Family Welfare should
take immediate action and issue detailed guidelines and directives on the
process of assessing and issuing
disability certificates by various hospitals / certifying authorities in
the NCT of Delhi so that persons with
disabilities and their family members are able to get the disability
certificates within the time frame prescribed in the Rules and they are not
harassed. It was specifically advised that it should be done on top priority as the
admissions to schools in Delhi will also commence and many young people with
disabilities would approach the hospitals for certificates of disability.
10. It may be also be recalled that
anticipating the difficulties and perceived complications, Office of State
Commissioner convened a meeting with the officers of Health and Family Welfare
Department, Department of Social Welfare and all the existing designated hospitals
for certification of various disabilities on 16.04.2018. In that meeting, one of the decisions was that as
the existing notifications dated 12.02.2014
and 10.09.2014 of Deptt. of Social Welfare, Govt. of NCT of Delhi stand,
Health and Family Welfare Department
will issue a circular to all the concerned hospitals / certifying authorities
by 30.04.2018 so that people with
disabilities including the newly included ones are assessed and certified. This
essentially required identification of the certifying authorities / specialists
and the hospitals that have the specialists and can assess and certify the newly
included specified disabilities.
11. However, it appears from the letters dated 14.03.2018
and 11.05.2018 of Health and Family Welfare Department
and 22.05.2018 referred to in Para 5&6 that the appropriate certifying authorities and the hospitals for assessment and
certification of specific learning disability and other newly included specified
disabilities have not been identified and designated. Apparently, the concerned hospitals are not able to
assess and issue disability
certificates.
12. Section 57 of the Act provides as
under:
“57. (1) The appropriate Government shall designate persons, having requisite
qualifications and experience, as certifying authorities, who shall be
competent to issue the certificate of disability.
(2)
The appropriate Government shall also notify the jurisdiction within which and
the terms and conditions subject to which, the certifying authority shall
perform its certification functions”.
Section
101 of the Act also does not require the
State Govt. to frame the rules for implementation of Section 57 of the Act. Thus,
designation of certifying authorities is not dependent on notification of Delhi
Rights of Persons with Disabilities Rules. Health and Family Welfare Department could therefore
have designated the certifying authorities immediately after notification dated
04.01.2018 of the Department of Empowerment of Persons With Disabilities.
13. The line of action seems abundantly clear to me and therefore, it is recommended that the Health
and Family Welfare Deptt., GNCT of Delhi should immediately identify the
certifying authorities / specialists in
different hospitals as notified vide notifications dated 12.02.2014 and
10.09.2014 keeping in view the availability of specialists by 08.06.2018 indicating their
jurisdiction and issue instructions to
the concerned certifying authorities to ensure that all the applicants for certification are
assessed and if eligible, be issued certificates of disability by 15.06.2018 so that they are in
possession of the certificates of disability before applying for admission to
the universities / colleges. A meeting by Principal Secretary, Health and
Family Welfare Department and DGHS with
the Heads of all the concerned hospitals in NCT of Delhi including those under
the Central Government and local authorities and Secretary, Department of
Social Welfare may facilitate resolution of the issue. This should be done on
top priority as the eligible persons with newly included specified disabilities
will be deprived of their right to seek admission against the reserved seats
for persons with benchmark disabilities for the second academic year as the Act
had been brought into effect with effect from 19.04.2017, albeit without
putting in place the guidelines until 04.01.2018 and due to not designating the certifying authorities in NCT of Delhi till date. This recommendation is
being made to protect the rights of
eligible persons with disabilities to admission against reserved seats
for them under Section 32 of the Act.
14. An Action Taken Report shall be submitted to this Court by 15.06.2018. If the respondent decides not to accept the recommendation, the
reasons for non-acceptance of the recommendation be conveyed to this court as
required under Section 81 of the Act.
15. The complaint is disposed off
accordingly.
16. Given under my hand and the seal of the
Court this 31th day of May,
2018.
(T.D. Dhariyal )
State Commissioner for Persons with Disabilities
Copy to:- The Secretary(Social Welfare), Deptt.
of Social Welfare, GLNS Complex , Delhi Gate, New Delhi for information.
