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 

DoPT issued the Memorandum on Facilities for Govt. Employees for efficient performance of duties

Dear Colleagues,

Please refer to earlier post dated 18 Feb 2014 titled "Guidelines for Comments - Facilities for Govt. Employees with Disabilities for efficient performance of Duties" wherein I had placed before you the draft from the sector and what it became when it went to the DoPT. 

The DoPT has finally notified the draft with some changes vide its OM No.No.36035/3/2013-Estt.(Res) dated 31st March 2014 which are as below:

Accessibility and Barrier free environment at workplace. Following has been added which has improved the earlier draft : 
Lifts/elevators should be made accessible by providing Braille signage and audio outputs. Wherever required, suitable colour contrast may also be made available in buildings, utilities, staircases, etc. for the benefit of low vision employees. 

Special casual leave
In the earlier draft a special casual leave of 15 days mainly for inpatient treatment in CGHS recommended hospitals was given over and above all other leaves/ special casual leaves. However, in the final version, it takes away the leave sought to be granted. It now find mentions only of the existing four days leave in a calendar year for attending medical needs and 10 days leave for attending disability related conferences etc.  thereby defeating the objective of 15 days special leave. This means the section has literally been rendered useless as it doesn't give anything new and only reiterates what was existing earlier.

Guidelines have some positive things too

The guidelines though not close to what we had demanded, are a good beginning since it now gives the employees with disabilities the following facilities as a matter of right among others:

(a) Post recruitment and Pre-promotion Training. 
(b) Provision of aids/ assistive devices
(c) Accessibility & barrier free environment at workplace.
(d) Preference in Govt. Accommodation 
(e) Grievance redressal mechanisms &
(f) Preference in transfer/posting

Download the policy in PDF by clicking the weblink below:

OM No.No.36035/3/2013-Estt.(Res) dated 31st March 2014 titled "Guidelines for providing certain facilities in respect of persons with disabilities who are already employed in Government for efficient performance of their duties

Guidelines for Comments - Facilities for Govt. Employees with Disabilities for efficient performance of duties

Dear Colleagues,

Some of you would know that the Office of Chief Commissioner - Disabilities had organised a workshop titled "Consultative Workshop for framing draft guidelines for creation of non-disabling work environment for Government Employees with Disabilities to enable them to function smoothly in Government service."  on 28 May 2013 at IIC, Delhi. 

After the day long deliberations, wherein delegates from the disability sector, NGOs, government employees, national institutes etc.  participated. I had the opportunity to compile the draft on behalf of the CCPD office which was subsequently sent to the DoPT. Click here for a copy of the said draft hereinafter called CCPD's June 2013 Draft

Now, almost after 8 months, the DoPT has come out with the final version of the document titled "Guidelines for providing certain facilities in respect of persons with disabilities who are already employed in Govt. for efficient performance of their duties" dated 14th Feb 2014 which is also uploaded on their website inviting comments from Ministries/ Departments. Click here for a copy of the said DoPT draft dt 14 Feb 14

I can with reasonable credibility, having been a participant at the CCPD's Workshop on 28 May 2013, and having contributed and compiled the CCPD's draft can safely conclude today that the draft has been diluted to a great extent. Despite that, I believe notification of the guidelines is a good step and it will not only help integrating employees with disabilities at workplace in govt but also and offer guidance to private players. However, here is a brief evaluation of the guideline.

Good things that have been accepted in the DoPT draft:

1. Placing the employee with an experienced employee for at least a month on resuming responsibilities of a post - that will allow him to pick up required skills to perform the job and also explore the adaptations needed in individual cases.
2. Provision of assistive devices/ aids - good quality assistive devices, special chairs, software etc to improve the efficiency has been accepted in principle with a review every three years for upgraded versions. It requires the departments to provide for the cost of equipment or its reimbursement to the employee.
3. Special casual leave of 15 days per annum - mainly for inpatient treatment in CGHS.  I hope this is in addition to the existing sick leaves and all other leaves.
4. Every ministry/department to arrange training in "Disability Equality and Etiquette" for their liaison officers in consultation with CCPD. 

Some glaring issues that are visible on a cursory reading in the DoPT draft are:

1. At the outset, the document doesn't come across as a rights giving document, it looks more like a doles giving document to the employees with disabilities.
2. There are no budgetary provisions made nor there is any system created to evaluate or assess the needs of employees with disabilities. Hence the entire "amenities" are likely to be more subjective.
3. It is seeking comments from ministries and not from general public or associations of employees with disabilities.
4. It gives no legal sanctity to the disabled employee unions to discuss their issues as mandated by the UNCRPD.
5. When compared with the CCPD draft,  you will realise how 21 page draft has been reduced in to 4 pager policy. This has resulted in either things getting  left out or made so vague that it may be difficult to seek its implementation.
6. It misses out the reasonable accommodations needed for employees with disabilities to perform to the fullest.
7. Due to limited applicability, it is feared by some quarters that it may not help employees in Banks etc. though I feel these would be equally applicable to employees in scheduled banks as well as those working under Ministry of Finance. 
8. Also it is not indicated as a guiding document for the State governments who may have a job identification list for persons with disabilities different from the one notified by the Union of India. 
9. The DoPT has sought comments from the ministries and is likely to be finalised without any final involvement of the stakeholders..... which is against the basic theme of UNCRPD - "nothing about us without us". That is what the government had done even with the RPD Bill 2013 when it was quietly pushed in to parliament in utmost secrecy without involving the stakeholders.
10. In the Identification of jobs, there is inherent bias visible in the guidelines when  it says that each ministry ..... should identify the types of jobs which could be easily performed by them specially for group B, C & D...... Why should Group A be excluded? Do they think that disabled employees are not capable of holding Group A post or performing functions of Group A posts?

Conclusion

I am leaving it to you to compare the two drafts available on the links above, and see for yourself how can a well meaning document be turned into a weak policy document nurtured with a charity mindset!

Here is the coverage in The Hindu on the subject today:

Centre’s guidelines moot facilities for disabled government staff

18 Feb 2014, AARTI DHAR

Proposals include preferences in transfers, postings and accommodation, reimbursement for assistive devices and special casual leave

The Central government has come up with a set of draft guidelines on providing certain facilities to its employees with disabilities to help them perform their duties efficiently.

The guidelines, released on Monday, include proposals such as preferences in transfers, postings and accommodation, reimbursement for assistive devices and special casual leave. Additionally, all ministries and departments, subordinate offices, PSUs, government companies, and cantonment boards would also have to identify the type of jobs that such employees may easily perform.

As far as possible, persons with disabilities will be exempted from rotational transfer and will be allowed to continue in the same job where they would have achieved the desired performance. Preference in place of posting at the time of transfer or promotion may be given to the persons with disability.

The induction training — an essential component of an employee’s service requirement — of all employees should take place together. Job-specific post-recruitment and pre- promotion training programmes are required to be organised for persons with disabilities.

The guidelines instruct ministries and departments to provide or reimburse, within a specific time frame, the cost of special assistive devices in accordance with the prices fixed by them in consultation with various national institutes specialising in disability care.

Visually Impaired continue to face discrimination in Civil Services

Dear Friends,

Despite the PM's intervention in ensuring that the Civil Services opened their doors to the persons with disability especially those with visual disability, the silent discrimination continues. The case of Rajesh is a live testimony to this discrimination. And this is despite Supreme Court's order in the favour of the candidate directing DoPT to appoint him in Civil Services!

It is the same DOPT which continued to take examination in Braille  and giving the VH scribes to write UPSC examination without making an effort to identify any posts for them when they were pulled up by the Hon'ble Supreme Court of India.

We all know, how difficult it is to clear the interview where, many times such insensitive people sit across you who know nothing about disability etiquettes throwing queries questioning your abilities on the basis of perceived disability! And then the apathy and bias attitude of  the DoPT.

This needs to change forthwith if India is to ensure true equality to its citizen with disabilities. Stern action should be taken against the erring officers to set examples that the policies and Act are not defied right under the nose of the Union Government.

Read here the revelation brought out by Bhuvan Bagga for Mail Today.

Click here to view the news from Mail Today in image form 

Babus blind to his merit (Mail Today) By Bhuvan Bagga in New Delhi Visually impaired man not given posting even 3 yrs after clearing civil services  RAJESH Kumar Singh had a dream that soured — one, because he is visually impaired and two, because he is not well connected. This 25- year- old had cracked the prestigious civil services examination three years ago while he was still doing his masters in modern Indian history from Jawaharlal Nehru University. But what happened next broke his spirit. Despite bagging the third rank in the disabled category, the department of personnel and training ( DoPT) refused to give Singh a posting. “I don’t know when I will get my chance. Now it seems the examination was easier to handle, but not this inherent bias in the system against people with special needs like us,” says Rajesh. Disheartened, he approached the Supreme Court and after a prolonged legal battle, the court decided in his favour. But another shocker for him was on the way. A candidate, who was ranked below him in the same category, received a posting while he was still waiting for a response after the court order. Allegedly, it so happened that the favoured candidate was related to a DoPT official. He knocked at the Supreme Court’s doors for the second time on October 21 this year. The court once again issued notices to the government asking why he wasn’t given a posting despite its order and how a person with a lower rank got in. “The system is entirely pitted against us. No one thinks we deserve, merit or should be a part of the bureaucracy. Even in my interview, a panelist asked me why I deserved to be in the service when I couldn’t even read or write as he did,” he said. At that time Rajesh had politely shot back asking the interviewer “ if he could read or write like him, would he consider himself ineligible?” Incidentally, Rajesh is also an international cricketer who represented India in three world cups for the visually impaired. “ Two of these were in India and one in Pakistan. I am not just a meritorious candidate, but also a sportsperson,” he says. However, he has received support from activists and political leaders who have written to the Prime Minister. MAIL TODAY has the copies of these letters in its possession. The letters name the senior DOPT officer and mention that Rajesh was ignored and a person with a lower rank was favoured. Dr Naresh Kumar, a sociologist and general secretary of the Delhi Pradesh Congress Committee said, “ I have written a letter to the PM and asked for the removal of such officers who think themselves to be above the Supreme Court. I want to know how Ravi Prakash Singh, with a rank of 6, got into the IAS service while Rajesh is outside.” Rajesh is from Patna and had done his bachelors in history from Ramjas College. His father is a civil judge in Bihar. Two of his brothers are engineers and his sister is a doctor. “There are times when even our families and closest persons can’t understand us. I have my fingers crossed and am hopeful that the law of the land gives me what I have earned. I don’t need sympathies, just give me what I worked so hard for,” Rajesh said.

Throwing out workers with visual disabilities enmasse may be a bad precedent!

Dear Friends,

Cases like this are surely a discouragement to the voluntary initiative of private sector and are in bad taste-  both for employers and employees with disabilities.

Its difficult to prove how it all started and whether it was due to conflict between Management and Union or really due to no work being done by workers. One thing is clear, if the workers have been working for five years, they can't be shunted out in this fashion.

The management on the other hand should seek the active involvement of disabled employees in providing reasonable accommdoation. I also see a larger role here of NGOs that work in employment areas to diffuse the crises to set good precedent!

regards

Subhash C Vashishth

Click here to read from source:   Suspended visually-challenged workers say firm’s move against law

-Nisha Nambiar

Pune: Approach disability commissioner; company says they were doing no work but will get pay till probe ends.

Twenty visually-challenged workers, who were suspended by a private firm in Chinchwad, have approached the Disability Commissioner complaining about violation of their rights under the Equal Opportunity Act 1995, which says disabled persons cannot be suspended.

Uma Precision Pvt Ltd had issued the suspension orders on Monday. The workers submitted their representation to the Commissioner on Tuesday. The matter will be heard on Friday.

Advocate Vaishali Sarin said that the employees have been working with Uma Precision since the last five to six years and the company cannot suspend them. “It is against the law,” she said. Sarin along with these workers will hold a sit-in protest at the company’s gates on Wednesday morning.

The firm has been into auto ancillary products for 30 years and has nearly 500 employees. It had employed the workers in its punching unit. They had been working since 2005. The workers, who are part of the MNS’s Maharashtra Navnirman Kamgar Union, had clashed with the firm’s officials earlier too.

The company officials said the workers were suspended and a probe was being conducted. Director of the firm’s Human Resources department Dilip Tilekar said the employees were not doing any work and were suspended for gross misconduct. “A committee would conduct the probe. There would be a hearing in the coming week. They would be given a chance for their say,” he said. However, these employees will continue to get their pay till the probe is completed and hearing of the case is conducted, he added.

Sarin, however, maintained that workers had been doing good work and many of them are the sole breadwinners of their families. “I am the sole breadwinner of the family. It would be very difficult to find another job soon,” said one of the suspended workers. Trainer Sunil Chordia alleged that the workers were not given adequate work and the company cannot complain about them sitting idle.