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 

Travelling Allowance for Attendant/ Escort accompanying Govt. employees with Disabilities - Memo Released

Dear Friends,

This is further to my earlier post titled "DoPT issued the Memorandum on Facilities for Govt. Employees for efficient performance of duties" dated 22 May 2014. Yesterday, Ministry of Finance, Govt. of India has issued the below OM regarding Travelling Allowance in respect of Attendant.Escort for accompanying a Government Servant with Disabilities on travel during official tour or training or attending an official workshop etc. 

This was a long pending demand of the disability sector and also granted in the DoPT OM No.No.36035/3/2013-Estt.(Res) dated 31st March 2014 which has finally been fulfilled by Govt. of India. All the officials, activists and stakeholders involved in bringing this to reality deserve accolades. 

As per this OM, Government servants with disabilities can claim travelling allowances for their escorts, if the field office or local administrative offices, where they would be visiting for tour or training within the country or Indian Missions abroad, for overseas visits, officially express their inability to provide an attendant of their own.  Mileage allowance would be admissible to the escorts at the same rate and similar class of accommodation as government servants with disabilities are entitled for.

This OM will benefit nearly 6000 Central Government employees with disabilities alone and expected to be emulated by various states. 

Here is the content of the OM:

Travelling Allowance in respect of Attendant/Escort for accompanying a Government Servant with Disabilities on travel during tour/training etc.

No. 19030/3/2013-E.IV

Government of India

Ministry of Finance 

Department of Expenditure

******

North Block, New Delhi. 

Dated the 17th February, 2015.

OFFICE MEMORANDUM

Subject:- Travelling Allowance in respect of Attendant/Escort for accompanying a Government Servant with Disabilities on travel during tour/training etc.

References have been received in the Ministry of Finance, Department of Expenditure seeking provision in the Rules/instructions regulating Travelling Allowance, in order to allow grant of Travelling Allowance to the Government servant with Disabilities in respect of an Attendant/Escort accompanying such a Government servant with Disabilities during travel while on tour/training, etc. At present there are no provisions in the Travelling Allowance rules which allows Government servants to claim Travelling Allowance in respect of Attendant/Escort accompanying them on tour/ training, etc. where such Government servants require the assistance of an Attendant/Escort for travel.

2. The matter has been considered and it has now been decided to allow Travelling Allowance in respect of the Attendant/Escort, for accompanying a Government servant with Disabilities during travel while on tour/training, etc., to be claimed by the Government servant with Disabilities. The admissibility of Travelling Allowance, in respect of the Attendant/Escort accompanying a Government servant with Disabilities, would be subject to the following conditions:-

(a) Ordinarily, the field offices/local administrative offices at the touring station, which the Government servant with Disabilities is required to visit on tour or training institutes where the Government servant with Disabilities is required to undergo training, would be required to provide an Attendant/Escort, from the existing pool of staff/persons employed, from the time the Government servant with Disabilities arrives at the destination and till such time the Government servant with Disabilities departs from that destination back to his headquarter station/place from where the Government servant with Disabilities had initially proceeded to that destination. During travel abroad, either on foreign tour/training, the Indian Missions/Posts (Embassy of India) at the country of visit would be required to .provide an Attendant/Escort, from the existing pool of staff/persons employed, during the period of stay of the Government servant with Disabilities in that country.

(b) Only when field offices/local administrative offices at the touring station or training institutes or Indian Missions/Posts at the country of visit, as the case may be, officially express their inability to provide an Attendant/Escort to the visiting Government servant with Disabilities, would the claim of Travelling Allowance in respect of Attendant/Escort accompanying the Government servant with Disabilities arise. In such cases, fare for travel of Attendant/Escort accompanying Government servant with Disabilities would be reimbursed. While for travel by air, Airlines are expected to provide assistance to Government.servant with Disabilities during travel as per Airlines policies, a Government servant with Disabilities however, can take along his personal Attendant/Escort for travel by Indian Railways for assistance during journey and boarding/de-boarding, even when an Attendant/Escort at destination station is provided officially.

(c) In all cases, Government servant with Disabilities are required to purchase travel tickets for self and Attendant/Escort at concessional rates, if any, offered by Railways/Airlines.

(d) The facility of Travelling Allowance for the Attendant/Escort would only be admissible to those Government servants with Disabilities, wherein it is certified by the competent Medical Authority that such a person compulsorily requires assistance of another person for travel. Under this clause, necessary certificate is to be obtained from the Head of Department of a Government Civil Hospital designated for the type/form of disability of the Government servant. Based on the certificate from competent Medical Authority, Heads of Departments would have to further satisfy the need for an Attendant/Escort during travel of the Government servant, before allowing the journey for the Attendant/Escort.

(e) Subject to clause (d) above, Travelling Allowance for the Attendant/Escort would be admissible to the Government servant with Disabilities while on tour (domestic or foreign). However, the authority deputing such a Government servant with Disabilities on tour would have to record in writing that the tour is considered necessary in the discharge of duties and responsibilities assigned to the Government servant with Disabilities.

(f) Subject to clause (d) above, Travelling Allowance for the Attendant/Escort would also be admissible to the Government servant with Disabilities when deputed on training provided it is recorded by the authority competent to depute such officials on training that such training is a mandatory training for career progression or induction training for probationers.

(g) Travelling Allowance consists of two parts; Mileage Allowance and Daily Allowance. No Daily Allowance would be admissible to the Attendant/Escort of the Government servant with Disabilities. Mileage Allowance would be admissible to the Attendant/Escort at the same rate and in the same class of accommodation, as the Government servant with Disabilities is entitled to under the Revised Travelling Allowance Rules, read with travel restrictions imposed under austerity measures/economy instructions, issued from time to time by the Government. However, in case of travel by any of the modes of conveyance by road, as prescribed under the Travelling Allowance rules, no separate mileage allowance would be admissible to the Government servant with Disabilities, in respect of the Attendant/Escort, except where the travel is by public bus.

(h) For commuting between residence to office and back, certain categories of Government servants with Disabilities are eligible for Transport Allowance at double the normal rates. As no Travelling Allowance is admissible to Government servants for training at headquarter station, consequently, no claim of Travelling Allowance to the Attendant/Escort of the Government servant with Disabilities would be admissible for training at headquarter station.

3. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller and Auditor General of India.

Sd/-

(Subhash Chand)

Director

PS:

To obtain a signed PDF copy (but inaccessible for those using screen readers) click below:

Ministry of Finance OM No. 19030/3/2013-E.IV dated 17 Feb 2015


Related news that appeared subsequently on 18 Mar 2015:

Travel allowance for escorts accompanying disabled government employees 

By PTI | 18 Mar, 2015, 03.12PM IST 

NEW DELHI: Coming to the aid of Central Government employees with disabilities, the Centre has decided to extend travel allowance for escorts accompanying them during official tours and training. 

A first-of-its kind initiative by the Union Government, the facility has been provided for the differently-abled employees on official overseas assignment as well. 

The move is expected to benefit around 6000 employees with different types of disabilities. 

"It has now been decided to allow travelling allowance in respect of attendant/escort for accompanying a government servant with disabilities during travel while on tour/training, etc., to be claimed by government servants with disabilities," an Office Memorandum by the Department of Expenditure of the Ministry of Finance said. 

Of the 6000 Government servants with disabilities, nearly 5,000 are physically impaired, over 800 fall under the category of hearing impaired, while about 500 were visually challenged. 

As per the office memorandum, Government servants with disabilities can claim travelling allowances for their escorts, if the field office or local administrative offices, where they would be visiting for tour or training within the country or Indian Missions abroad, for overseas visits, officially express their inability to provide an attendant of their own. 

Mileage allowance would be admissible to the escorts at the same rate and similar class of accommodation as government servants with disabilities are entitled for. 

The facility of travelling allowance for the escort would only be admissible to government servants with disabilities, wherein it is certified by the competent Medical Authority that such a person compulsorily requires assistance of another person for travel, the office memorandum stated. 

"State Governments are expected to follow the guidelines issued by the Union Government in this regard. This would be beneficial for Government servants with disabilities employed in State Governments also," Awanish Kumar Awasthi, Joint Secretary, Department of Persons with Disabilities, Ministry of Social Justice and Empowerment said.

Source: Economic Times 

Accessible India Campaign / सुगम्य भारत अभियान

Following Information was given by the Minister of State for Social Justice and Empowerment, Shri Krishan Pal Gurjar in a written reply to a question in Lok Sabha on 23 Dec 2014:

Accessible India Campaign (सुगम्य भारतअभियान ) is the nationwide campaign for achieving universal accessibility for all citizens including Persons with Disabilities, to be able to gain access and live independently. The Accessible India Campaign comprises of the following key components:-

(i) Create Mass Awareness

(ii) Capacity Building

(iii) Interventions (Technology solutions, Legal framework, Resource generation)

(iv) Leverage corporate sector efforts including CSR resources.

(v) Leadership endorsements

Section 44, 45 and 46 of Persons with Disabilities (PwD) Act, 1995 deals with non-discrimination in transport, non-discrimination on the road and non-discrimination in the built environment, respectively. All the Establishments, appropriate Governments and the local authorities are mandated by these provisions of the PwD Act to take, within the limits of their economic capacity, measures for providing easy accessibility for persons with disabilities in a non-discriminatory manner.

The Ministry as well as the Chief Commissioner for Persons with Disabilities (CCPD) from time to time request the State Govts./UT Administrations for providing barrier free access to public places by constructing ramps, lifts and railings.

Vide letter dated 24.01.2012, Chief Commissioner for Persons with Disabilities (CCPD) had written to all the Chief Secretaries of the States/UT Administrations among other things to take concrete and time bound steps to enforce accessibility standards and guidelines.

CCPD also takes up with the concerned State Govts./authorities as and when non-availability of facilities for access to public places for persons with disabilities comes to their notice.

The Commissioners for Persons with Disabilities of the concerned States are also requested to follow up with their respective State Govts./UT Administrations.

A letter dated 8.07.2014 has also been sent from Minister of Social Justice and Empowerment to the Chief Ministers of all States requesting them to issue suitable directions to all concerned for taking appropriate measures in concrete and time-bound manner for incorporation of barrier free access to all public buildings and transportation. They have also been requested that similar provisions may be made in local municipal/building bye-laws.

Moreover, under the Scheme for Implementation of Persons with Disabilities Act, 1995 (SIPDA), Ministry provides Grants-in-aids to all States/UTs to provide barrier free environment in important Government buildings (State Secretariat, other important State level offices, Collectorates, State University Buildings/ Campuses, Medical Colleges and Main Hospitals at Divisional Headquarters, other important Government buildings), for Persons with Disabilities as per Section 46 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation of Rights) Act, 1995 (PwD Act). This includes provision for ramps, rails, lifts, adaptation of toilets for wheelchair users, brail signage and auditory signals, tactile flooring, etc.

 *****
http://pib.nic.in/newsite/PrintRelease.aspx?relid=113996

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

An article by Avinash Shahi on the successful stint of CCPD Mr. PK Pincha

A CCPD to be emulated

- by  Avinash Shahi

Shri Prasanna Kumar Pincha, whose two year stint as the Chief Commissioner of Persons with Disabilities (CCPD) ended on December 27 2014, has left an indelible ink on the disability movement in the country. The CCPD is appointed by the Government of India as per the Section 57 of the Persons with Disability Act, 1995. Being totally blind by birth, his visionary intent and foresightedness is palpable in his groundbreaking judgments

In February 2013, His Office issued the comprehensive uniform guidelines for conducting examinations for persons with disabilities. This Office Memorandum is hailed as pathbreaking judgment by any CCPD since the establishment of the office in 2001. Stories abound that Students with disabilities are often discriminated in the entrance examinations by the exam conducting authorities. 26 February 2013 judgment is a big step forward towards putting an end to such humiliation. As a result of that ruling, the Kerala High Court directed the University Grants Commission to provide NET exam question papers in Braill to all print-disabled examinees. Following that order, UGC has been providing question papers in Braille since June 2014.

His Office also took suo-motu notice against the ministry (MSJE) under which it operates. Mr Pincha summoned MSJE official for not reviewing the list of identified posts as stipulated under the section 32 of the PWD Act. Section 32 of the PWD calls upon the State to review/update the list of identified posts after every 3 years. In the order delivered on 23 November 2012, He directed the Ministry of Social Justice and empowerment to notify the updated list of identified posts and comply within one month. Consequently, the government of India published the newly updated list in early 2013.

In the whole of February this year, disability rights activists staged a successful countrywide movement. It aimed to prevent the passage of anti-disabled RPD Bill which government of that time seemed adamant to legislate in haste without discussion. Delhi Police even batoned peaceful protesters which attracted strong condemnation from the CCPD. Unexpectedly, when the last parliament session of the UPA II government got over, it again stepped-up its efforts to bring RPD Bill through an ordinance. When the ordinance route seemed imminent, Mr Pincha, went out of the box and wrote a letter to the prime minister expressing his reservation against the unconstitutional ordinance. His avowed commitment towards ensuring non-discrimination and protection of the rights of persons with disabilities was evident from the letter which he wrote to the former prime minister Manmohan Singh.

Mr Pincha’s pioneering legacy of disability advocacy is a solid Launchpad which needs to be strengthened by the prospective CCPD. During his tenure he has galvanized the recently established department of Disability Affairs’ which is responsible for dispersing funds and overseeing its actual implementation. His unblemished track record and unflinching commitment towards espousing the rights of persons with disabilities should serve as the eye-opener for the government. And next CCPD should also be appointed who is a person with disability of high repute.

Source: icareinfo(dot)in