Amendment in Leave Rules in consonance with mandate of Section 47 of Indian Disabilities Act 1995

Dear colleagues,

There is yet another welcoming news from the DoPT in favour of government employees who became disabled during service and had to take long leaves for medical reasons. Such leaves were often revoked or refused by the senior officers/ department Heads on whims and fancies sincere there was a complete silence in the rules on the impact of Section 47 of the PWD Act.

The DoPT has finally amended the Central Civil Services(Leave) Rules 1972 to remove this anomaly to bring its leave rules in consonance with requirements of Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

The Memorandum provides that  leave applied on medical certificate in connection with disability should not be refused or revoked without reference to a Medical Authority, whose advice shall be binding.  It also removes the ceiling on maximum permissible leave laid down in Rule 12  in such cases and thus any such leave debited for the period after a Government servant is declared incapacitated shall be remitted back into his/her leave account. The Memorandum allows even family members to make the leave application with medical certificates where employee is unable to submit due to disability.

Here is the OM reproduced for your ready reference:

No. 18017/1/2014-Estt(L)

Government of India

Ministry of Personnel, Public Grievances & Pensions

Department of Personnel & Training

New Delhi, the 25th February, 2015

OFFICE MEMORANDUM

Subject: Amendment to Central Civil Service (Leave) Rules, 1972 – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995,)-regarding

The Central Civil Services (Leave) Rules, 1972 were amended vide the Department of Personnel and Training Notification No. 13026/1/2002-Estt(L) dated the 15/16th  January, 2004 consequent to the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act, 1995) which came into force from 7th  February, 1996.

2. Section 47 of the PWD Act, 1995 provides that services of no employee can be terminated nor can he be reduced in rank in case the employee has acquired a disability during his service. The first proviso to the Section 47 lays down that if such an employee is not suitable for the post he was holding, he could be shifted to some other post. However, his pay and service benefits would be protected. The second proviso provides that if it is not possible to adjust such an employee against any post, he would be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Further, the Clause (2) of Section 47 provides that no promotion shall be denied to a person merely on ground of his disability. In Kunal Singh v. Union of India, [2003] 4 SCC 524, Hon’ble Supreme Court has observed that the very frame and contents of Section 47 of the PWD Act, 1995 clearly indicate its mandatory nature.

3. The issues relating to leave or absence of Government servants who have acquired a disability while in service are required to be dealt with in the light of the provisions of the Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The case of a disabled government servant who is declared fit to resume duty but who may not able to perform the duties of the post he was holding earlier may be dealt with as per the first proviso to Section 47 of the PWD Act, 1995. The second proviso shall apply if it is not possible to adjust him against any existing post. In all such cases, the Government servant so adjusted shall be entitled to the pay scale and other service benefits attached to the post he was holding.

4. A disabled Government servant who is not fit to return to duty shall be adjusted as per second proviso to the Section 47 mentioned above, until he is declared fit to resume duty or attains the age of superannuation whichever is earlier, with the same pay scale and service benefits. On being declared fit for resuming duty, the Government servant who is not fit for the post he is holding, may be adjusted as per the first proviso to Section 47.

5. Leave applied on medical certificate in connection with disability should not be refused or revoked without reference to a Medical Authority, whose advice shall be binding. The ceiling on maximum permissible leave laid down in Rule 12 may not be applied to leave on medical certificate applied in connection with the disability. Any leave debited for the period after a Government servant is declared incapacitated shall be remitted back into his/her leave account.

6. For a government servant who is unable to submit an application or medical certificate on account of disability, an application/medical certificate submitted by a family member may be accepted. The provisions relating to examination of disabled Government servants and the Medical Authorities competent to issue such certificates are also being amended.

7. Necessary amendments to the Central Civil Services (Leave) Rules, 1972 are being notified separately.

Sd/-

(Mukesh Chaturvedi)

Director Tel: 23093176

To obtain a signed PDF copy of the above Memorandum Click here: 

Amendment to Leave Rules for Employees with disabilities : 26 Feb 2015  


Related Media Coverage:PTI

Don't deny leave to disabled employees: Government tells departments

Thursday, 26 February 2015 - 4:00pm IST | Place: New Delhi | Agency: PTI

Any leave debited for the period after a government servant is declared incapacitated shall be remitted back into his or her leave account," the Department of Personnel and Training (DoPT) said in an order.

Leave applied on medical certificate in connection with disability of a government employee should not be refused or revoked, the Centre has said.

For a government servant who is unable to submit an application or medical certificate on account of disability, a family member is allowed to inform the office or submit required documents on his behalf, it said.

The Centre is in the process of notifying new rules to ensure equitable working atmosphere for persons with disabilities in government departments.

"Leave applied on medical certificate in connection with disability should not be refused or revoked without reference to a medical authority, whose advice shall be binding...

"Any leave debited for the period after a government servant is declared incapacitated shall be remitted back into his or her leave account," the Department of Personnel and Training (DoPT) said in an order.

As per rules, no employee can be terminated nor can he be reduced in rank in case the person has acquired a disability during his service. Even if such an employee is not suitable for the post he was holding, he could be shifted to some other post. However, his pay and service benefits would be protected, the rules said.

The rules also provides that if it is not possible to adjust such an employee against any post, he would be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

Further, no promotion shall be denied to a person merely on ground of his disability.

"For a government servant who is unable to submit an application or medical certificate on account of disability, an application or medical certificate submitted by a family member may be accepted.

"The provisions relating to examination of disabled government servants and the medical authorities competent to issue such certificates are also being amended," the DoPT said.

Source: DNA India 

Armed Forces must respect Section 47 of Disabilities Act as a non-discrimination provision

Its an old article from Indian Express published on 15 Nov 2012, however, is very pertinent given a large number of soldiers being discriminated on ground due to acquired disabilities whether attributable to service or otherwise.

Its cruel to see that while a civilian government employee (with a contributory pension) is retained in service and paid his salary in full as a social protection, a soldier who dedicates his life in to the service of nation and ready to sacrifice it on call of duty (eligible for lifelong pension) is left to fend for himself without any social protection in case of acquired disability. This itself means a big discouragement to join the defence forces as a combatant  in comparison to a similar post as a civilian. 

Isn't this nullification of the provisions of Section 47 of the Persons with Disabilities and the spirit of Article 14 of Constitution of India? Its absurd since the section 47 comes under the chapter on Non-Discrimination in the Act! The defence minister must look in to it and consider retaining the provisions of Section 47 to encourage more young minds joining the defence forces at all levels.

Here  goes the article: 

Fighting for a fair deal

M.P. Anil Kumar : Thu Nov 15 2012, 02:54 hrs

The armed forces must do more for differently abled personnel

Generals Ian Cardozo, Pankaj Joshi and Vijay Oberoi are luminaries of the Indian army, for they attained that rank and served in the frontline toughing it out on prosthetic legs.

Soldiers, sailors and airmen, by the very nature of their occupation, are prone to physical injuries, the severest form being spinal cord injury. The conditions — paraplegia (paralysis waist down) and quadriplegia (paralysis neck down) — sentence the victim to lifelong wheelchair mobility.

Given the nature of the profession, the armed forces need to maintain a fit profile. However, not every soldier needs to be in the trenches; the organisation has to deploy a mini-army in the offices to oil the wheels. So, instead of sidelining hors de combat soldiers, they can be retrained for sedentary tasks and made useful cogs in the machine, especially in a computer-driven workplace.

While the norm in the armed forces was to out the spinal-cord-injured personnel, in the early 1990s, realising the worth of his experience and utility to the service, the air force reversed its policy and retained Wing Commander Ashok Limaye, a paraplegic. The army followed suit, thus setting in motion the employment and rehab of wheelchair-bound officers within the services itself.

Beginning with amputees, it expanded to embracing worse-off paraplegics, and this initiative came years before Parliament gave the differently abled community its first sniff of empowerment through the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

Section 47 of the disability act, its high-water mark, is an enabling measure that proactively protects the employment of differently abled government staff. In a nutshell, it states that any employee who acquires a disability during his service has to be retained in the rolls with full pay and other dues till the age of superannuation (pension thereafter), even if he cannot be accommodated in any post. He cannot be denied promotion on the ground of his disability.

One need not wade through the legalese to distil the spirit of this section, which is to enable persons with disabilities to remain employed, thus ensuring their sustenance and restoring their dignity and self-worth. From the vantage point of a paraplegic soldier, all the fizz of this act went flat with the issuance of a statutory notification (SN) via the gazette of 13 April 2002. By exercising the powers conferred by the proviso to section 47, the Union government exempted, prospectively, all categories of posts of combatants of the armed forces from the protective shield of section 47. Since fighting fettle is a requisite, this exclusion does look reasonable. But only on the surface.

While the differently abled civilian employee is looked after, the paraplegic soldier in the prime of life would be wheeled off to fend for himself and his family on peanuts packaged as a disability pension. The government consigns the paraplegic soldier to a far lower quality of life vis-à-vis the differently abled civilian employee. The SN therefore discriminates and does a grave wrong to those who risk life and limb in the line of duty. The irony is that section 47 is unfurled in the act under the rubric of “non-discrimination”. It would be a surprise if the SN was not found to fall afoul of Article 14 (right to equality before the law and equal protection of the law) of the Constitution.

If the government doesn’t rescind the SN to restore parity, then equality demands the enhancement of disability pension to match full emoluments . If not, one expects our lawmakers to restore equal rights among various differently abled employees when the new legislation to attune the disability act to the UN Convention on the Rights of Persons with Disabilities comes up in Parliament. But that could mean a long wait.

While the army struck the right note in the beginning, and one presumed the inclusion of paraplegics had evolved into an imperative, it was inconsistent in absorbing even pre-SN paraplegics. A major invalided out in February 2002 had appealed against his expulsion. The Armed Forces Tribunal upheld his contention and reinstated him. The army, readying to challenge that order, indicated its reluctance to welcome paraplegics back to the fold.

The IAF has a history of compassion, but its test comes in the form of a flight cadet who sustained spinal injury while ejecting from a jet trainer last August. Then four months short of becoming an officer, this paraplegic lad wants to serve the IAF in any non-flying capacity. A change of branch and commission will mean setting a precedent. The lazy option is to throw the rulebook at him and bid him goodbye. That will be a waste of his training and cruel, to boot. Will the IAF choose to be a pioneer by commissioning him? By some coincidence, the navy too will be asked to take a call as for the first time, a wheelchair-bound officer has sought retention.

Perhaps Defence Minister A.K. Antony, who lays great store on fairness, can step in to tell the services to consider the spirit of the disability act to be their lodestar when called upon to decide the fate of a paraplegic soldier.

The writer was a fighter pilot in the IAF

Source: Indian Express

Indian Air Force becomes the first Force in India to retain a para plegic combatant soldier

Dear Colleagues,

Please refer to my earlier posts titled Defence Ministry extends some disability benefits under Section 47 PWD Act.

In first incidence of its kind and thanks to Air Chief Marshal NAK Browne's insistence, the Defence Ministry  agreed to grant a commission to a cadet who became paraplegic after his trainer aircraft crashed. The cadet form Manipur has been on wheelchair for nearly 16 months.

I welcome this move from the Indian Air Force who have come forward to implement in true sense the Disabilities Act 1995 and the UN Convention on the Rights of Persons with Disabilities by respecting the inherent dignity of a person with disability and granting him the employment benefits.  We have seen in the past several cases where the promising combatant members were medically boarded out leaving them in lurch for entire life.

This I am sure will send very positive message down the ranks that they can be rest assured that the force stands behind them when they are taking risks on duty!

Sensitization is so important

Another significant point to be noted in this case is the "sensitization of the Air Chief Marshal" that came about by the Air Chief's interaction and working with Wing Commander Limaye who too had become a paraplegic after a fighter aircraft accident and the Air Chief has served in the same unit where Limaye worked. Such is the strength of the sensitization and awareness raising. This further proves how important is the Article 8 of UN Convention on the rights of persons with Disabilities and more opportunities to provide inclusive set ups where the non-disabled and disabled  interact and work together.  

Here is the news report from Telegraph India

Air force first for stricken Hero - Remorseful Defence ministry to grant never-before commission to topper cadet caught in trainer aircraft crash

New Delhi, Dec. 22: A remorseful defence ministry today bowed to pressure from the air force and accepted Air Chief Marshal N.A.K Browne’s plea to grant a commission to a cadet who became paraplegic after his trainer aircraft crashed.“I owed it to him,” Browne told The Telegraph about 23-year-old Rajkumar Herojit Singh, a youth from Manipur who was a topper at the Air Force Academy and was training to fly fighter aircraft. The Indian Air Force has never granted commission to a physically disabled cadet in the past. The exception goes to show how desperate it has been to send out the message to its men that the top brass cares for them despite a shortage of quality equipment. The air chief also said a defence public sector’s delivery schedules had proved “too costly” for the force and “the time for experimentation is over”.

When this newspaper telephoned Herojit this afternoon, he was preparing to go to a special swimming pool near the Military Hospital in Kirkee. He said he was much better now and that Browne had called him to convey the decision.

Although bound to a wheelchair for nearly 16 months, Herojit said he started exercises and physiotherapy at 8am every morning for five hours. After a two-hour rest, he goes swimming — Browne termed Herojit “an excellent swimmer” — and then works on his laptop.

“I am even able to stand up and walk a little now with the help of equipment and I play table tennis from my wheelchair every day,” Herojit said.

The youngest of five siblings, he will begin training for ground duties (accounts branch) on January 9. He is likely to be commissioned by June.

Browne said he was moved by Herojit’s determination when he went with the unprecedented request to the defence minister. “When I met Herojit (after his crash) I told him that this is uncharted territory (requesting for commission to a physically disabled cadet) but I will do what I can. But he was enthusiastic and convinced me that he wanted to continue in the air force,” said Browne.

Herojit had completed nearly 80 per cent of his basic training. He was adjudged “the most accomplished flight cadet” of his course before he ejected from his HAL-produced Kiran trainer aircraft, which caught fire in mid-flight on August 28, 2011.

The chords of Herojit’s parachute got caught in power transmission lines from which he dangled for a few seconds before plummeting to the ground. The fall damaged his spine and rendered him paralysed waist downwards.

On November 6, this newspaper had reported Herojit’s plight, the IAF chief’s plea to defence minister A.K. Antony, and the reason for the government’s remorse after it found funds for VVIP helicopters but not enough for basic trainer aircraft like the outdated Kiran.

Browne also said the air force did not want the defence public sector Hindustan Aeronautics’s proposal to manufacture basic trainer aircraft to be accepted.

The air force has already contracted 75 Swiss-made Pilatus aircraft, the first 14 of which are expected to be inducted by June next year for the primary stage of training fighter pilots.

HAL has proposed to the government that it will produce an aircraft called the HTT-40 (Hindustan turbo trainer) but the air force is upset with the public sector firm’s failure to meet delivery schedules.

“I can tell you that the IAF does not want it to happen. They made the proposal in 2009-2010 and they expect us to fund their R&D (research and development) by about Rs 500 crore. We do not have that kind of money. The time for experimentation is over,” Browne said.

He said the IAF would need a total of 182 Pilatus aircraft. These are expected to be delivered much before the seven-year timetable that HAL has projected.

“The delay has already proved too costly. HAL has made zero progress,” the Air Chief Marshal said. He said HAL’s proposed HTT-40 aircraft “would also be significantly costlier” than the Pilatus.

Browne said that with the government accepting the request to grant a commission to Herojit, the air force was also telling its personnel that “we will not leave our people or equipment behind”.

Browne, who has earlier been the western air commander, has demonstrated this belief in the past. After a Mi-17 helicopter had a hard-landing at 15,000 feet in Changtash, Ladakh, he selected a team of mountaineers and engineers to travel to the rarefied heights.

The team salvaged the aircraft and repaired it. The chopper this year flew in the Air Force Day parade.

Browne said that in taking up Herojit’s case, he had been moved by a colleague, Wing Commander Limaye, who too had been left a paraplegic after a fighter aircraft accident. Limaye is based in Pune where Browne had served.

The air chief said another colleague who was a quadriplegic was now able to write by holding a pen in his mouth and was being treated in hospital.

Herojit’s family is based in Imphal where his father retired from the Manipur Fire Services. His mother is a homemaker. One brother is in Imphal while another and two sisters are either working or studying in Pune.

Source: Telegraph India

Indian Army takes lead in respecting abilities of the Disabled

Dear Friends,

I am particularly happy at this news of Indian Army promoting a wheelchair user officer to the 2 Star rank.

Indian Army has set example for other paramilitary forces to reward their brave ones by promoting them even when faced with disability at physical level and not simply boarding them out medically. This is a befitting treatment to the contribution of the soldier as well as to the residual ability of the soldier after experiencing such disability. I remember Maj Gen. Ian Cardozo's words, "Disability is not in the body but in the minds of persons" (how one looks at it). He cites his own example that despite being an amputee, he proved himself & continued to command a battallian and risen to the rank of Maj. General. Today he heads RCI as its Chairperson.

Thousands of soldiers are boarded out medically every year from Defence Forces on acquiring disability attributable to service. And their opportunity to contribute to the nation are taken away by Medical Boards. 

Can Indian Defence Forces look at Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act at policy level and take a firm resolve that they will respect the sacrifices of their war wounded soldiers by giving them opportunities in service?. If I am game for it, I can create a number of opportunities for them in administration, logistics and several other areas that involve ground duties. This will be a trend setting step on the part of Defence Forces to respect the human diversity and abilities.

We know, currently all defence establishment are exempted from the purview of PWD Act 1995 !

To read the news click on the links below:

NDTV 

Times of India

Deccan Herald

1st wheelchair-bound officer promoted as Major General

New Delhi, Oct 27, (PTI):

History was created in the Indian Army today when a wheelchair-bound officer was promoted to the rank of a Major General.

Belonging to the elite Parachute regiment, Maj Gen S K Razdan picked up his two-star rank today and is posted at the Headquarters, Integrated Defence Staff, Army officials said here. The 52-year-old Para Commando was left paralysed below his waist after a spinal injury 15 years ago during a gunfight in Kashmir, an effort which had won him a Kirti Chakra, the country's second highest peace-time gallantry award. In a daring effort in 1995, Razdan had taken on terrorists and saved the lives of 14 women in a 16-hour operation in Damal Kunzipur on October 8, which also happens to be his birthday. The officer was shifted to the Army's Base Hospital in the national capital, where he was treated for his injuries. The Army has in the past promoted amputee officers to General-officer rank, but this would be the first time a wheelchair-bound officer has become a Major General, the officers added.