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. 206/1121/2018/04/7342-47 Dated: 18 May 2018
In the matter of:
Shri Manish Kumar
H.No.
418, Gate No. 10A, Swantantra Nagar,
Narela,
Delhi-110040
Email:-
manishnagpal180292gmail.com ……………..Complainant
Versus
The Medical Superintendent,
Govind Ballabh Pant Institute of Post
Graduate
Medical Education & Research(GIPMER),
1, Jawahar Lal Nehru Marg,
New Delhi-110002. ..…………..Respondent
No. 1
The Medical Superintendent,
Institute of Human Behaviour & Allied
Science,
Dilshad Garden,
Delhi-110095.
..…………..Respondent No. 2
Date
of hearing: 14.05.2018
Present Sh. Manish Kumar,
Complainant.
Dr.
Sidharth & Sh. R.C. Sharma, MRO on behalf of Respondent No.2.
ORDER
The
above named complainant, a person with 45% generalized dystonia with myoclonus
and dysarthria as per the disability certificate dated 03.07.2012 issued by
Gobind Ballabh Pant Hospital vide his complaint dated 12.04.2018 submitted that
he cleared Engineering Services Examination (ESE) 2016 and secured all India
Rank 254. However, Railway Board has rejected his claim for allotment of a
service/post on the ground that he is suffering from neurological disorder with
the above mentioned condition and that he has wrongly claimed himself to be one
arm affected person though he suffers from neurological disorder.
2. The
complaint was taken up with the respondent vide Show-Cause-Cum-Hearing Notice
dated 13.04.2018 and a hearing was scheduled on 24.04.2018. It was brought to
the notice of respondents that the then applicable guidelines for evaluation
& certification of disabilities vide Ministry of Social Justice &
Empowerment (MSJ&E) notification No. 16-18/97-NI.I dated 01.06.2001
(Section C), neurological condition/ neurological deficit cause locomotor
disability. Para- 7.4. Table-III
mentions about percentage of physical impairment due to dysarthria also. Thus,
before 04-01-2018 i.e. date of notification of Department of Empowerment of
Persons with Disabilities, Govt. of India regarding guidelines for assessing
the extent of the specified disabilities, the assessment of disability and
certification had to be done as per
the said guidelines of 2001.
3. As
per the Person with Disabilities (Equal opportunities, Protection of
Rights and full
Participation) Amendment Rules, 2009 (PwD Amendment Rules) disability certificate other than in the case of amputation or complete permanent paralysis of
limbs, blindness and in case of multiple disabilities, is to be issued in
form-IV. Every Disability Certificate must indicate the disability type (i.e.
locomotor disability/ low vision/ blindness/ hearing impairment/ mental
retardation/ mental illness), affected part of the body, diagnosis and
percentage of impairment among other things.
However, the Disability Certificate dated 03.07.2012 has been issued in Form- II which is meant for obvious
disabilities i.e. complete paralysis or blindness. IHBAS has also issued the disability certificate
dated 24.08.2017 in Form-IX whose contents are not same as prescribed in Delhi Persons with
Disabilities Amendment Rules, 2011 (Delhi PwD Amendment Rules) which were
notified following the notification of the PwD Amendments Rules by Govt. of India.
4. It
was also observed that as per examination notice No. 01/2017-ENGG dated 28.09.2016 of Union Public Service
Commission (UPSC), Indian Railway Service Engineer has been identified as
suitable for persons with disability category OA, OL, & HI and as per the
complainant, he meets all the physical requirements mentioned in the
said notice. Because of faulty disability certificate dated 03.07.2012, the
complainant was running the risk of losing a job that he has secured with
enormous hard work and struggle and getting through a rigorous selection
process of UPSC for the Indian Engineering Service.
5. Respondent
No. 1 was, therefore, directed to show cause why the disability certificate dated
03.07.2012 should not be replaced with a fresh disability certificate in
accordance with the then applicable guidelines for assessment and certification
of disabilities issued on 01.06.2001 in Form-IV of PwD Amendment Rules, as the complainant has
locomotor disability due to neurological condition and the speech disorder was
not a disability under the Persons with Disabilities Act, 1995. Respondent No.2 was directed to submit comments with respect to the certificate
dated 24.08.2017 issued by IHBAS.
6. Respondent
No. 1 vide letter dated 20.04.2018 submitted the following reasons why the disability
certificate dated 03.07.2012 could not be replaced by 24.02.2018:
“(i) Then
Medical Authority took premature retirement in 2014 although she was going to
be retired in year 2015.
(ii) Medical
Authority might had preferred to give disability according to diagnosis rather
than to terming it as locomotor disability hence did not tick on locomotor
disability or blindness.
(iii) At present GIPMER is not Medical Authority for
Neurological disability assessment and certification for residents of Narela
(North West Distt. Of Delhi) as Zonal Medical Authority is IHBAS Dilshad
Garden, Delhi-95.
(iv) Re-assessment
of applicants neurological / locomotor disability could be done by Zonal
Medical Authority. However second opinion
of G.B. Pant Medical Institute”.
7. During the hearing on 24.04.2018, the
parties reiterated their submissions. In the light of the position brought out
in the Show-cause Notice dated 13.04.2018 and the fact that in the Persons with
Disabilities Act 1995, ‘neurological disability’ was not a separate disability, respondent No.1
was directed to issue the disability certificate in respect of the complainant
was in Form-IV based on the assessment done on 03.07.2012 within 15 days from the date of receipt of the record
of proceedings dated 27.04.2018.
8. On the next date of hearing on
14.05.2018, neither anyone appeared on behalf of respondent No.1 nor any status
report received. The representatives of
respondent No.2 submitted letter dated 14.05.2018
and clarified that IHBAS has been
issuing disability certificates as per the Persons with Disabilities Act, 1995
in Form-IX which is as per Notification dated 31.05.2011 of Govt. NCT of Delhi.
IHBAS made a small modification in the format for
locomotor disability due to neurological
disorders, as locomotor disability is caused both by neurological disorders
like stroke, cerebral palsy etc. and other causes like amputation, etc. It has further been clarified that the
disability certificate issued to the complainant in the modified format is not
going to affect the case of the
complainant in any manner. However, if
desired, the certificate can be issued
in the new format by Medical Authorities at IHBAS, though G.B. Pant Hospital
has also been directed to issue the certificate in the new format. Any other difficulty faced by the complainant
in availing benefits may not be related to the certificate issued by IHBAS and those
aspects may be viewed separately.
9. The complainant submitted that neither
he visited GIPMER nor was he contacted by the Institute for issuing fresh
disability certificate. Therefore, he visited
the Institute after the hearing and informed that the concerned members of the
medical board of the Institute were out
of station and therefore the status of action taken on the recommendations of
this court vide RoP dated 27.04.2018
could not be ascertained. The
complainant also informed that since the Railway Board is not allocating any
service to him, he has approached Hon’ble High Court of Delhi and his Writ
Petition is scheduled for hearing in the month of August, 2018. Keeping in view the nature of the issue
involved, it will be in the interest of justice to dispose off the matter
without waiting for respondent No.1 to intimate the status of action taken on
the recommendation vide Rop dated 27.04.2018.
10. This Court is concerned with the
limited issue of assessment of disability of the complainant in accordance with the
guidelines at the relevant time and issuance of certificate of disability in an appropriate format by respondent No.1. In order to put the issue into perspective,
it will be appropriate to recapitulate the genesis of the procedures put in
place by appropriate authorities for
assessment of disabilities and their certification. At the time the disability
certificate was issued by respondent No. 1 on 03.07.2012, the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (PwD Act),
the PwD Amendment Rules, 2009 notified by the MSJ&E, Govt. of India, the
Delhi PwD Amendment Rules 2011 Govt. of Delhi and the Guidelines for Evaluation
of Various Disabilities and Procedure for Certification issued by the
MSJ&E, Govt. of India vide notification dated 01.06.2001 were the relevant Act,
Rules and guidelines in existence. The
Rights of Persons with Disabilities Act, 2016 which has come into effect from
19.04.2017, the Rights of Persons with Disabilities Rules, 2017 and the
Guidelines for assessment of disabilities notified on 04.01.2018 in
pursuance of the RPwD, 2016 cannot be
applied to the complainant who was assessed and certified on 03.07.2012. As per
the PwD Act, 1995 chronic neurological conditions were not a separate
disability, but as per guidelines of 01.06.2001, a person having neurological
conditions or neurological deficit or dysarthria is to be assessed for locomotor disability and
the percentage of disability would depend on the severity of such conditions. Section (C) of the said notification deals
with assessment of locomotor disability due to neurological conditions. The PwD
Act did not recognise speech disorder as a disability.
11. Therefore, having assessed the impairment
due to neurological conditions of the complainant, the medical authority of
respondent No.1 should have mentioned in
the disability certificate on 03.07.2012, the percentage of locomotor
disability indicating the affected body part(s) of the complainant due to those
conditions in Form-IV prescribed in the PwD Amendment Rules, 2009 or Form-IX prescribed
in the Delhi PwD Amendment Rules,
2011.
12. Ministry of Social Justice and
Empowerment (MSJ&E) amended the PwD Rules, 1996 and notified the Amendment
Rules, 2009 on 30.12.2009. The amended
Rules also prescribed revised forms of
certificates of disability to streamline the certification. Following the said
amendment by the MSJ&E, Govt. of NCT of Delhi also amended the Delhi Persons
with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Rules 2001 and notified PwD
Amendment Rules 2011. The amended Rules
also adopted the three forms of disability certificate. Forms of disability certificate
in MSJ&E’s Amendment Rules and their corresponding forms in Delhi PwD
Amendment Rules, 2011 are given in the following table:
S.No.
|
Disability
|
Prescribed
Form in MSJ&E’s PwD Amendment Rules, 2009
|
Prescribed
Form in Delhi PwD Amendment Rules, 2011
|
1.
|
In
case of amputation or complete permanent paralysis of limbs and in case of
blindness
|
Form-II
|
Form-VII
|
2.
|
In
case of Multiple disability
|
Form-III
|
Form-VIII
|
3.
|
In
cases other than those mentioned at Sl. 1&2
|
Form-IV
|
Form-IX
|
13. In
view of the position explained in the preceding paragraphs there has definitely
been an error on the part of the certifying authority of respondent No. 1 while
issuing disability certificate to the complainant to his disadvantage. In my
view, therefore, respondent No. 1 should correct the error and issue
the disability certificate in respect of the complainant in Form-IV or Form-IX for locomotor disability based on the
assessment made in 2012 as his disability was permanent physical impairment as
per the disability certificate issued on 03.07.2012 and I recommend accordingly.
14. It is also observed that the
neurological condition has majorly affected the locomotive condition of the right
arm of the complainant. It has caused mild speech impairment with no impact on
his functional ability. The impact on other
body parts of the complainant also does not appear to be so disabling as to
affect his functional ability.
15. Although determination of suitability
or otherwise of the complainant for civil engineering job falls under the
purview of Railway Board / Department of Empowerment of Persons with
Disabilities / Chief Commissioner for Persons with Disabilities, Govt. of India
yet I feel it in the fitness of things to record my view that the study of
civil engineering involves practicals
and if the complainant with the same extent of disability has successfully
completed his studies, performed the practicals and has secured the degree, there is no reason
why such a person should not be considered suitable for the engineering service
involving civil engineering functions. Moreover, it has been proved by many persons
with disabilities that no two persons with same type and percentage of
disability can be functionally the same. For example, a person with both arms
amputated is doing the work of a tailor and is earning his livelihood in India though the
post of tailor is not identified for a person who has disability even in one
arm. This explains why the notification of MSJ&E containing list of
identified posts clarifies that those lists are not exhaustive and while the
establishments can add to the lists, they cannot exclude any post from the list
of identified posts. I, therefore, see
no justification for disqualifying the complainant for any Civil Engineering
job/post merely on the ground of the disability that he has, for whatever
reason.
16. Respondent No.1 is directed to take
action on the recommendation in Para 14 within 30 days from the date of receipt
of this order and intimate this Court and the complainant as required under
Section 81 of the Rights of Persons with Disabilities Act, 2016.
Given
under my hand and the seal of the Court this 18th May, 2018.
(T.D. Dhariyal)
State Commissioner for Persons with
Disabilities
Copy for information to the:
1.
Secretary, Department of Empowerment of Persons
with Disabilities, Ministry of Social Justice & Empowerment, 5th
Floor Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003.
2.
Chief Commissioner for Persons with
Disabilities, Sarojini House, 6, Bhagwan Das Road, New Delhi-110001.
3.
Chairman, Railway Board, Government of India
(Bharat Sarkar), Ministry of Railways (Rail Mantralaya) (Railway Board), Rail
Bhawan, New Delhi-110001.
