Showing posts with label women with disability. Show all posts
Showing posts with label women with disability. Show all posts

Wednesday, October 13, 2010

An unending struggle for the disabled: Experiences of Ms. Shalini Sethi

Dear Friends,

Today, I am sharing with you a write up by Ms. Shalini Sethi who initially named it "Plight of the Disabled", however, I have suggested the name "An unending struggle of the disabled- Experiences of Ms. Shalini Sethi. 

Article raises few very crucial points on the existing status of the employment scenario for the disabled,  administration of justice as well as work conditions that prevails for persons with disabilities especially for women. I am thankful to Ms. Sethi for sharing this article and agreeing for wider circulation and publishing it here on this blog. 

Here is the article:

An unending struggle of the disabled: Experiences of Ms. Shalini Sethi, Delhi -a promising human resource with disability.

Hon’ble Prime Minister, addressing a conference of state ministers of welfare and social justice on 7th September, 2009, expressed his displeasure at the progress of the ambitious Public-Private Partnership Scheme to generate employment for the disabled.

2. Ironically, the performance in the Public Sector too has not been any bright. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into effect on 1.1.1996. The Act made 3% reservations in identified posts for persons with disabilities in all Government establishments, including bodies substantially funded by the Government, to provide them equal opportunities and also to ensure their full participation. These vacancies were equally allocated to three identified types of disabilities viz.(i) blindness and low vision;(ii) hearing impairment; (iii) locomotor disability or cerebral palsy, but were interchangeable in case of non-availability  of suitable candidates in any of these disabilities. There are indications that the establishments have not been fair. Over the years, unfilled vacancies in one form of disability have not been transferred and filled up by other suitable form, as per the directions given in the Act, to manipulate their overall 3% quota. Rather these vacancies were either carried forward or transferred to the non-reserved category, thereby blatantly depriving the disabled their full share of equal opportunities. Besides, the appropriate Governments are given the authority of exemption, taking away large chunk of vacancies out of their reach, making 3% reservation nothing but farce.

3. I was born with multiple congenital deformities, affecting my upper and lower limbs. I am thankful to my parents and the Doctors, who helped me to stand on my feet. I had to bear incessant body pains and had to undergo continuous medical treatment, all through my school and college days, which affected my grades. I passed B.Com. Examination from Delhi University, in 1991 and obtained Diploma in System Management from NIIT in 1993. The struggle only strengthened my determination. I did several private jobs, during which I acquired experience in communication skills, customer relations, customer care and management as centre head, but was constrained to travel long distances and the jobs I got were not stable. I applied for disability certificate, quite late in my life at the age of 35 yrs., expecting that this might help me in getting suitable job in Government organization. This certificate first issued to me on 20.5.2006, took almost one year, facing lot of hassles, finally assessing me with permanent disability of 48%. Thereafter, I started trying for a job in government establishments but my experience here too has been frustrating.

4. In November, 2006 the Income Tax, Department of Revenue, Ministry of Finance; Government of India invited applications to train 5000 graduates to become Tax Return Preparers (TRPs). Constrained by my mobility problems, this scheme offered a good opportunity for me. I fulfilled the required qualifications but needed slight relaxation in age.  The scheme was entirely funded by the Government, including the cost of training, arranged through NIIT; also providing these TRPs their logistic support, thereby fulfilling all the parameters of the Act, but not providing relaxation and consideration for persons with disabilities. The matter was timely brought to the notice of the Chief Commissioner for Persons with Disabilities, who is supposed to protect the interest of persons with disabilities, but he failed to take timely action. The plea was rejected on the ground that the Act made no specific provisions for such self-employment schemes. Sadly, this happened at a time, when the then Hon’ble Finance Minister announced the ambitious scheme of Public-Private Partnership to generate more opportunities for persons with disabilities, while his own Department was blocking even their legitimate opportunities. It is unfortunate that the respondent department did not present the correct picture of this scheme before the Court of the Chief Commissioner, claiming that was only to facilitate training of these TRPs and that they were not under any contract with the Government or with any other person or organization to function as TRPs, either for the purpose of employment or otherwise, while the fact as on date is these TRPs may not be the direct employees of the Government, the Department is still actively supporting them, spending Government money on advertising their services through its website or otherwise, maintaining a Resource Center for them, retraining them in filing returns in other taxation matters, arranging concessional finance through public sector Banks etc. Respondents committed before the said Court that it proposed to conduct more of such training programmes, but has not come out with any such program, after their first selection nor the Ministry of Social Justice and Empowerment seem to have considered it appropriate to facilitate reservation and relaxations to persons with disabilities in such self-employment and development of entrepreneurship skills for them.     

 5. Around this time SBI, PNB also made massive recruitments of clerks. I could not apply for these jobs because I slightly fell short of their percentage of marks requirements. The Delhi Metro Rail Corporation, in recent times, too has made lot of recruitments but it seems that it is yet to find any suitable posts for persons with disabilities. Delhi Jal Board, Delhi Subordinate Selection Board, Employees State Insurance Corporation, advertised the posts of clerks, requiring compulsory speed in typing, difficult for persons with in coordination of muscles in hands. The Income Tax Department advertised the post of Tax Assistants, requiring high level of data entry speed. LIC Housing Finance Corporation, promoted by LIC, a Government sponsored body, advertised the post of customer care executives but did not make any relaxation, claiming to be a non-government body.  I was well qualified for these posts but could not apply because I could not meet their requirements, without the legitimate relaxations. I also registered with the Special Employment Exchange set up by the Government to help persons with disabilities to find a suitable job, but in 4-5 years I am yet to receive any call. I lost these opportunities because  the Government departments, the public sector Banks and institutions do not honestly, sincerely and seriously follow the Persons with Disabilities Act and the extant instructions, guidelines and directions, as contained in  the Department of Personnel & Training  OM dated 29.12.2005.

6. I finally got a job with the IDBI Bank, through an all India test conducted by the Bank. This job of an Executive, though initially on contract, on year to year basis, was to lead to final absorption in the service of the Bank as Assistant Managers over the period of 4 years, through a selection process. I joined this Bank on 26.11.2007. Having struggled a lot, this job was a good opportunity for me. I worked really very hard and was performing very well. However, then came a new Branch Head, who joined my branch in July, 2008 started harassing me for no reason, even teasing me on my disability perhaps due to ignorance or due to his attitude towards disability. I bore his indignities for over 3 months hoping that he also will go one day and some new Head will replace him. However, finding no respite, I was compelled to complain against his misbehavior to the Head, HRD on 21.11.2008. Four days later, on 25.11.2008, when I was about to leave the Bank, after day’s work, I was served a fax message that the Bank has not renewed my first year contract, expiring on the same date by efflux of time. My father wrote to the Head, HRD, on 1.1.2009, reminding him on the complaint, seeking proper justice but received no response. He then lodged a formal complaint, on my behalf, with the Chief Commissioner for Persons with Disabilities on 24.2.2009, followed by an e-mail sent to him on 1.3.2009.

7. My experience at the Chief Commissioner’s office was again very frustrating. The Chief Commissioner is bestowed with judicial powers under the PwD Act, to safeguard the rights of persons with disabilities, listen to their complaints of harassment and discrimination. However, he  took full 13 months to arrange some sort of hearing. My first complaint made on 24.2.2009 was rejected outright in April 2009, not following the prescribed procedure as laid downs in the Rules framed under the PwD Act, consideration of the complete facts and my personal complaint of harassment, ruling the complaint inappropriate, claiming that the terms and conditions of the contract gave the Bank unconditional discretion not to renew my contract, which was factually incorrect. My father  took up this matter again with the said Chief Commissioner in August, 2009, this time with  relevant data, collected through RTI application, establishing that  the Bank was not honest, sincere and serious in  following the provisions of the PwD Act, extant rules and regulations, instructions, guidelines, directions etc., as  contained in Department of Personnel & Training. Ministry of Personnel, Public Grievances and Pensions OM No. 336035/3/2004 Estt.(Res) dated 29.12.2005, and, therefore, discriminating against the persons with disabilities. This time again the Chief Commissioner, still not following the proper procedure, nearly 4 months later, simply forwarded this complaint to the Bank on 7.12.2009, advising the Bank to take action in accordance with the Government OM of DOP&T. Eventually, on third petition of my father on 19.11.2009, the Chief Commissioner issued another order on 2.3.2010, fixing the date of hearing on 22.3.2010.

8. The hearing that followed was conducted in undue hurry, not properly listening to facts, the evidence produced, the arguments that I had to give him a written brief, explaining all facts, data, proofs to counter the submissions made by the respondent, which was followed by an e-mail sent to him immediately thereafter, but he ignored all these submissions. Consequently, the order he issued on 5.4.2010 was not only vague, inconsistent but also not based on evidence and facts, presented before his Court. To him, the Act, the extant instructions, directions etc.  and OM issued by DOP&T, which he earlier advised the Bank to follow, were of no significance. He completely relied on the review report given by the Branch Head, the person I had complained for my harassment. The Deputy Chief Commissioner also did not feel it necessary to call him to depose, ignoring my complaint filed against him, completely. The facts, data, evidence produced before the Deputy Chief Commissioner were quite clear and he could have given me proper justice, rather than forcing me to knock the doors of the High Court.

9. The High Court took notice of my petition in May, 2010 and fixed the date for hearing on August 30, 2010. Hearing was held on due date but fresh date had to be given because the Advocate for the Union of India, Ministry of Social Justice failed to file its reply in time while the Advocate for IDBI Bank informed that he was engaged by the Bank a day before and as such needed time for making preparations and file the reply. It looks that these responsible establishments of the Government were not so mindful of their accountability and the Courts in India a bit lenient. The next date of Hearing is fixed on October 18, 2010. Hopefully this will sail through, but my age does not wait for me. I will be 40 yrs. old, coming December.

The Malady

10. The National Policy for persons with disabilities, declared by the said Ministry, accepts that the persons with disabilities are valuable human resource for the country. It is realized that a majority of persons with disabilities can lead a better quality of life if they have equal opportunities and effective access to rehabilitation measures. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was passed and came into operation on 7th February, 1996, which makes provisions for their employment, to give them equal opportunities and ensure their full participation etc. This Legislation was made following the Proclamation signed in the Meet of the Economic and Social for Asian and Pacific Region at Beijing in December 1992 to launch the Asian and Pacific Decade of Disabled Persons 1993-2002. India was one of the signatories of this Proclamation, which, among others, required the signatory countries to spell out the responsibility of the state protection of their rights, remove any discrimination, counteract any abuse and exploitation, equalization of opportunities and make special provision of their integration in the social milieu.

11. It is sad that fifteen years later, persons with disabilities like me, still have to fight for their rights under the Act for equal opportunities and full participation to become part of the mainstream of the society. The Act is a beneficent legislation and has to be perceived by its intent, as enshrined in its preamble and the commitment, the Government made in the above important Meet. It seems that this Act is not being seen in its proper perception and the appropriate governments do not look very keen to implement it in its proper perspective, giving undue discretion which does not seem to have been properly utilized. The administration, the courts, the private employers, the people, all have equal responsibility. The data given in the National Policy, issued by the nodal Ministry, indicate status of reservation of 3.07%, 4.41%, 3.76% and 3.18% in Group A, B, C & D in Government departments, in identified posts in Oct.2006. Similar reservation in PSUs, is given as 2.78%, 8.54%, 5.04% and 6.75%, respectively. This seemingly does not give the realistic picture, because of exemption granted or not granted to the establishments. The point at issue is that there is appropriate provision in the Act, reiterated  by DOP&T OM dated 29.12.2005 issued by the Department of Personnel, Ministry of Personnel, Public Grievances and Pensions, for interchangeability transfer of the reserved vacancies for persons with disabilities from one disability to another suitable disability, to maintain the equilibrium of minimum 3%, reservations for them, which most Government establishments do not seem to be following and instead filling up these posts by open quota. The Delhi High Court has even ruled that that this equilibrium should be implemented, considering the total staff strength in the organizations, (though the matter has reached Supreme Court and there is a stay on High Court’s ruling for time being). The High Court has even ruled that the organizations should even work out suitable posts in their establishments to absorb overall 3% persons with disabilities in their organization. It should also be made obligatory for private institutions to make appropriate provision, by giving them incentive or other-wise levying social responsibility tax.

12.  The Constitution of India ensures equality, freedom, justice and dignity of all individuals. The Ministry of Social Justice and Empowerment, the nodal Ministry, among others, for persons with disabilities, admits that it implicitly mandates an inclusive society for all including persons with disabilities. Here it is apt to quote the Ex- Chief Justice of the Delhi High Court, Shri A.P. Shah, speaking at a National Meet of NGOs on ‘Rejuvenating Partnership’, “Distress and humiliation the persons with disabilities suffer in the country is something that disturbs our conscience of inclusive governance.” He said.  “The country needs to call for a new rights-based approach to ensure social inclusiveness of the disabled.” The Policy admits that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 came into operation 10 years ago (now 15 years) and that with the experience gained in the implementation of the Act and developments in the disability sector, certain amendments to the Act have become necessary, but it seems that the Ministry of Social Justice is yet to bring out any appropriate amendment proposals.     
13. Apart from reservations for employment in Government establishments, the Act also provide for affirmative action, which include preferential allotment of land at concessional rates for purpose of house, setting up business. The National Policy envisages setting up supporting structure of services by way of vocational rehabilitation centers and vocational training centers. The Policy further states that considering slow pace of growth in employment opportunities in the organized sector, self-employment of persons with disabilities will be promoted. This will be done through vocational education and management training. Further, the existing system of providing loans at softer terms from the NHFDC will be improved to make it easily accessible with transparent and efficient procedures of processing. The Government will also encourage self-employment by providing incentives, tax concessions, exemptions from duties, preferential treatment for procurement of goods and services by the Government from the enterprises of persons with disabilities, etc. Priority in financial support will be given to Self Help Groups formed by the persons with disabilities. It seems that these policies have existed since the inception of the Act. It has to be seen how far these have benefitted the persons with disabilities. There seem to be no transparency in these schemes. There seems to be hardly any control of the policy implementation authorities on conditions applied. For instance the standard permanent disability of 40% required for eligibility of various concessions but for the dealership etc .the Oil companies demand 40% permanent/partial disability of either upper or lower limbs or 50% permanent/ partial  disability of both upper and lower limb together. The candidate’s income, also including the income of his parents, if he is a dependent should not be more than Rs.50000 per annum. The scheme further states that the company will provide the selected candidates in SC/ST working capital for dealership but no such provision has been made for PH category, expected to arrange the required finance with meager income of Rs.50000. There must be some agency of the Government to watch the rationality of such schemes.

14. The Act commits that appropriate Government and local authorities shall by notification frame schemes in favor of persons with disabilities, for the preferential allotment of land at concessional rates for houses, setting up business etc.  DDA, in the year 2008, allotted flats, which gave only 1% reservation for persons with disabilities, as against 3% such reservation made in other states. It allowed 5% rebate in the cost subject to maximum of Rs. 1.00 lac, on the condition that such flat shall not be alienated for 15 yrs. As these flats were to be handed over on free hold basis, the DDA was not able to clarify how they were going to enforce this clause. There were no such conditions put for any other categories of reservation, which saw a scam that engaged the Government, its economic offence wing and the media for long but still does not seem to have been completely resolved.

15. There are many other issues like the issue of disability certificate, social security measures, which are not transparent and need to be looked into. Selected Government Hospitals, only authorized to issue disability certificates, are too crowded, not properly able to give appropriate attention to persons claiming disability certificates, with large number of other out patients; the doctors do not seem properly trained and sensitized; the authorities are not clear of the criteria and procedures; there is no accountability, which lead to avoidable delays. With the standards of disability fixed, modern tools available to assess the extent of disability, its period etc. it should not be so difficult task as is made out to be. It seems that the revised guidelines issued under DOP&T OM dated 29. 12 2005, rather than easing the certificate has made it more complicated, creating many more classes of disability.

 16. The Income Tax gives relief to the families, deduction of Rs.10000 from their taxable income, to the families not because they have to bring up and support their family members with disabilities for life but for medical facilities.  The pension rules of the Government allow nomination of dependent unmarried daughters above the age of 25 years at par with  widowed/divorced daughters for family pension but in case of  unmarried disable daughter, she has to be crippled and certified by the approved medical authority that she carries a disability that make her incapable of earning her own living. I think the  Government should be aware that it is the families largely who have to take care of their children with disabilities with the Government despite it may be their intention unable to do much. I think that these experiences related to the plight of disable will be taken into consideration, if ever Government thinks of amending the Act to fulfill its intent.   

17. The National Policy envisage that Chief Commissioner for persons with disabilities at the centre and State Commissioner in states will play key role in the implementation of the Policy, apart from their statutory duties.  As per Sec. 63(1) of the Act, the Chief Commissioner for discharging their function under the Act, have the same powers as vested in a court under Code of Civil Procedure, 1908 while trying a suit in matters like summoning and enforcing the attendance of witnesses; requiring discovery and production of documents; requisitioning any public record or copy thereof from any court or office; receiving evidence on affidavits; and issuing commissions for the examination of witnesses and documents. Its proceedings are judicial, within the meaning of Sec.193 and 228 in the the Indian Penal Code. It is deemed as Civil Court for the purpose of Section 195 and Chapter XXXVI of the Code of Criminal Procedure, 1973. My experience with the Chief Commissioner,   as narrated in foregoing paragraphs show inadequacy of this office.  If they have to play a key role these offices need to be adequately strengthened, given appropriate authority, manned with committed and competent officers, made accountable for their jobs.