The Allahabad High Court has held that the government cannot accommodate an employee in a post with a lower pay scale just because he or she acquired some disability during service and became unfit for the current post.

A bench comprising justices Bharati Sapru and Siddharth passed the order while dismissing a petition filed by the Ministry of Railways.

The court directed the ministry to pay S Q Ahmed (accommodated on a post with lower pay scale because he acquired some disability) his dues according to higher pay grade with 7 per cent interest from the due date.

It also imposed a cost of Rs 50,000 on railways for not giving its employee his legitimate dues and for dragging him into litigation for no fault on his part.

In its petition, the Centre challenged an order passed by the Central Administrative Tribunal directing the Ministry of Railways to pay Ahmad his salary and other dues according to his original pay scale.

The tribunal had held that Ahmad was discriminated by the ministry and was wrongly accommodated in the post of lower pay scale on the ground that he became medically unfit for the job he was doing then.

The Railways contention was that if an employee becomes medically unfit he is only entitled for alternative employment in such category under which he is found fit, on the basis of available vacancies.

Therefore, Ahmad was appointed on a post according to his fitness and vacancy and there was nothing wrong in his appointment at a lower pay scale.

However, Ahmads counsel relied on the master circular of the railways ministry which says that during absorption of medically unfit employees, in alternative employment, railways should ensure that the interest of the staff should not be adversely affected as far as possible.

The bench was of the view that such a reduction in pay scale of an employee is discriminatory and in violation of section 47 of The Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995.

The section provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service and in case, an employee, after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits.

The bench while dismissing the petition observed, “It must be remembered that a person does not acquire or suffer disability by choice.

“An employee, who acquires disability during his service, is sought to be protected. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer.”

PTI

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No. 16(02)/2015-D(Pen/Pol)
Government of India Ministry of Defence
Department of Ex-Servicemen Welfare

New Delhi, Dated 8th August 2016

To,

The Chief of the Army Staff,
The Chief of the Naval Staff,
The Chief of the Air Staff,

Subject- Method of Calculation of disability where two types of IDs are involved.

Sir,

It has been observed during perusal of RMB/IMB proceedings that some Armed Forces Personnel have sustained some disability under category ‘B’ & ‘C’ as well as battle casualty under category ‘D’ & ‘E’ of Govt of India, Ministry of Defence letter No. 1(2)/97/D(Pen- C) dated 31st January, 2001 and composite assessment is made for all the disabilities by the Medical Board.

2. The composite assessment of disabilities may be equal to or less than the mathematical sum of percentage of disabilities. Since the calculation method of normal disability and war injury is different and assessment of disabilities including both i.e. normal disability and war injury are assessed as composite, therefore, in absence of clear directions/ guidelines, calculation of pension value for disabilities including both types of disabilities is not possible. It is also mentioned that rounding off benefit is presently given only in Invalidment cases attributable to or aggravated by military service and not in discharge cases.

3. Now, the issue has been analyzed in totality and the undersigned is directed to state that the methodology of calculation of pension values in cases where War Injury Element and Disability Element both exist may be carried out as follows. Firstly, the composite assessment for all accepted disabilities shall be derived. The higher element, i.e. War Injury Element (WIE) shall be deducted from the composite assessment and paid in full, irrespective of the percentage of assessment. The remainder shall be calculated as the normal Disability Element (DE). The minimum assessment criterion shall not be ‘applicable in such cases as the net assessment reckonable for WIE and DE together is more than 20%.

(a) Discharge Cases- Cases where Armed Forces Personnel are discharged from service on completion of prescribed terms of engagement, the higher element, i.e. the War Injury Element (WIE) Shall be deducted from the composite assessment and paid in full, irrespective of the percentage of assessment. The remainder shall be calculated as normal Disability Element (DE).

(b) Invalidment Cases- Cases where Armed Forces Personnel are invalided out on medical ground which is attributable to or aggravated by military service, the composite assessment and war injury element will be rounded off in terms of para 7.2 of GOL MOD letter No.1 (2)/97/D(Pen-C) dated 31.01.2001. Further, rounded percentage of War Injury Element (WIE) shall be deducted from the rounded percentage of composite assessment. The remainder shall be calculated as normal Disability Element (DE). The provisions of this letter shall take effect from the date of issue,

5. This issues with the concurrence of Finance Division of this Ministry vide their ID No 10(07)/2016/Fin/Pen dated 01/07/2016

6. Hindi version will follow,

Yours faithfully

sd/-
( Manoj Sinha)
Under Secretary to the Government of India

Source : http://www.desw.gov.in/

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New Delhi: Central government has decided not to accept voluntary retirement (VRS) notice of its disabled employees in reference to Supreme Court order in the case Bhagwan Dass & Anr Vs Punjab State Electricity Board.

The Persons with Disabilities (PWD) Act, 1995, states that no establishment shall dispense with the services of a disabled employee.

“It has been decided that whenever a government servant seeks voluntary retirement citing medical grounds or due to disability, administrative authorities shall advise him or her about the option of continuing in service with the same pay scale and service benefits,” said Office Memorandum F.No.25012/1/2015-Estt (A-IV) dated May 19 issued by Department of Personnel and Training (DoPT).

“If however, despite being so advised, such government servant still wishes to take voluntary retirement, the request may be processed,” it added.

The DoPT said in this order that no establishment shall dispense with or reduce in rank an employee who acquires a disability during service.

“No promotion shall be denied to a person merely on the grounds of disability,” Office Memorandum says.

“It has been noticed that in many instances, persons suffering from physical or mental disability seek voluntary retirement owing to inability to attend to duty and not being aware of the protection afforded to them by the PWD Act” the Office Memorandum added.

According to the Office Memorandum, all the ministries, departments, subordinate offices, central public sector undertakings and autonomous bodies are requested to inform disabled employees about the protection available to them under the PWD Act and must be encouraged them to continue work instead of taking VRS.
TST

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 The autism spectrum disorder child requires constant caregiver support and it would be imperative for the Government employees to take care of their autism spectrum disorder child on continuous basis, it has been decided to include ‘Autism’ in the term ‘disabled’, as defined in Para 3 of the above-mentioned O.M. dated 06.06.2014

No.42011/3/2014-Estt.(Res.)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training

North Block, New Delhi
Dated the 17th November. 2014

Office Memorandum

Sub: Posting of Government employees who have differently abled dependents – reg.

The undersigned is directed to refer to this Department’s OM of even number dated 06.06.2014 (copy enclosed) exempting a Government employee, who is also a care giver of disabled child, from the routine exercise of transfer/rotational transfer subject to the administrative constraints. The word ‘disabled’ includes (i) blindness or low vision (ii) hearing impairment (iii) locomotor disability or Cerebral Palsy (iv) leprosy cured (v) mental retardation (vi) mental illness and (vii) multiple disabilities.

2. The matter regarding the scope of ‘disabled’ has been examined in consultation with the Department of Disability Affairs. Considering the fact that the autism spectrum disorder child requires constant caregiver support and it would be imperative for the Government employees to take care of their autism spectrum disorder child on continuous basis, it has been decided to include ‘Autism’ in the term ‘disabled’, as defined in Para 3 of the above-mentioned O.M. dated 06.06.2014.

3. This issues with the approval of the MoS (PP).

4. All the Ministries/Departments, etc. are requested to bring these instructions to the notice of all concerned under their control.

sd/-

(G. Srinivasan)
Deputy Secretary to the Govt. of India

Source: http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02adm/42011_3_2014-Estt.Res-17112014.pdf

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NFIR
National Federation of Indian Railwaymen
3, CHELMSFORD ROAD, NEW DELHI – 110 055
Affiliated to :
Indian National Trade Union Congress (INTUC)
International Transport Workers’ Federation (ITF)

No.II/28/Pt.IV

Dated: 21/08/2013

The Secretary (E),
Railway Board,
New Delhi

Dear Sir,

Sub: Grant of Transport Allowance at double the normal rates to the employees disabled due to accident on duty or off duty – reg.

Ref: (i) NFIR’s letter No.II/28/Pt.IV dated 23/06/2012 and 07/07/2012.
(ii) Railway Board’s letter No.PC-V/2010/A/TA/1 dated 20/06/2012.
(iii) NFIR’s letter No.II/28/Pt.IV dated 07/06/2013.

—————-

Federation vide its letter No.II/28/Pt.IV dated 23/06/2012 followed by another letter dated 07/07/2012 has provided the details of specific case, unfortunately no reply has been received from the Railway Board despite reminder dated 07/06/2013, perhaps the issue has not been finalised even after lapse of over one year’s period.

NFIR, therefore, once again requests the Railway Board to decide the case and also issue instructions to the General Managers of the Zones & Productions Units for allowing Transport Allowance at double the rates of normal rate to the disabled railway employees at an early date. Federation may be apprised of the outcome.

Yours faithfully,
(M.Ragavaiah)
General Secretary

Source: http://www.nfirindia.org/Index.aspx

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NFIR demanding once again with reminder letter to Railway board that grant of Transport Allowance at double the rates to the employees disabled due to accident on duty or off duty.

Source: http://centralgovernmentemployeesnews.in/2013/08/demanding-of-double-the-transport-allowance-to-disabled-employees-due-to-accident-on-duty-or-off-duty/

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No.36035/3/2013-Estt.(Res.II)
Government of India
Ministry of Personnel, Public Grieances and Pensions
Department of Personnel ami Training

North Block, New Delhi
Dated 10th June, 2013

OFFICE MEMORANDUM

Subject : Framing of guidelines for smooth functioning of Persons with Disabilities (PwDs) in their duties in Government services.

The undersigned is directed to inform that a Committee has been constituted under the Chairmanship of Joint Secretary (AT&A), DoPT to identify measures and prepare guidelines to enable smooth functioning of Persons with Disabilities in their duties in Government service.

2. With this aim in view, the National Institute for the Visually Handicapped, Dehradun (under the Ministry of Social Justice and Empowerment) has authorised NAB, India Centre for Blind Women and Disability Studies, New Delhi to undertake the field study in this regard. The NAB would undertake field study in this Department for at least two days covering the following aspects:

(i) to gain an insight into the work content and gauge the feasibility of PwDs working on those jobs

(ii) execute some trials by blind or low vision persons at these tasks to verify the feasibility

(iii) obtain feedback from peers and supervisors.

3. It is requested to extend fullest cooperation to the NAB and the queries raised by them during their visit in your Ministry/Department are responded so that the scope of work in identified jobs and feasibility of PwDs working on those jobs could be gauged by them.

sd/-
(Debabrata Das)
Under Secretary to the Govt. of India

Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02adm/36035_3_2013-Estt-Res.II.pdf]

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The Minister of State for Social Justice and Empowerment Shri.D.Napoleon submitted the below information as written reply to a question raised in Lok Sabha on 19th March 2013 regarding the subject of promotion to visually impaired persons as follows…

“As per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) (PwD) Act, 1995, every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-

(i) Blindness or low vision;

(ii) Hearing impairment;

(iii) Loco motor disability or cerebral palsy, in the posts identified for each disability.

Further, with a view to encourage employment of Persons with Disabilities in private sector, the Government provides the employer’s contribution for Employees Provident Fund (EPF) and Employees State Insurance (ESI) for 3 years, for employees with disabilities including visually impaired persons employed in the private sector on or after 01.04.2008, with a monthly salary upto Rs.25, 000 under its Scheme of Incentives to the Private Sector for Employment of Physically Challenged Persons.

Government has issued uniform and comprehensive guidelines for conducting examination for the persons with disabilities for regular and competitive examinations”.

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(i) A certain portion of pension is taken into account and is not entirely ignored.

(ii) The pay in the post of re-employment is not required to he fixed at the minimum of the scale in all cases, and

(iii) Dearness allowance at the rates applicable from time to time is also admissible on the pay fixed on re-employment.

(i) The entire pension admissible is to be ignored in the case of civilian pensioner who held posts below Group ‘A’ and those ex-servicemen who held posts below the ranks of commissioned officers, at the time of their retirement. Their pay on re-employment is to be fixed at the minimum of the pay scale of the post in which they are re-employed. Such civilian pensioners will consequently be entitled to dearness relief on their pension at the rates applicable from time to time.

(ii) The ex-servicemen (PBOR) who retired before attaining the age of 55 years and re-employed thereafter and their pay fixed at a higher stage because of advance increments and no protection of the last pay drawn is being given, the pay should he treated as fixed at a minimum only for the purpose of ignoring the entire pension and allowing dearness relief on pension.

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No.E(NG)II/2011/RC-2/6

The General Manager (P),
All Zonal Railways/PUs,
Chairman/RRBs.

Sub : Recruitment against Physically Handicapped Quota from open market – disability certificate regarding.

A number of references have been received from various sources regarding non-acceptance of the applications/candidatures of persons with disabilities for not producing certificate of disability in a particular format for appointment on the Railways.

2. The issue has been examined, pursuant to the order dated 18.10.12 of the Court of Chief Commissioner for Persons with Disabilities in Case Nos.46, 52-55, 59/1121/12-13 and it has accordingly been decided that recruiting agencies should not insist on a particular format of disability certificate at the time of accepting the ‘application/considering the candidature of the applicant  as the medical authority In different states are using different formats, Stipulation made vide Para 4 (I) of Board’s letter No. E(NG)II/2006/RC-2/13 dated 17.09.2007, accordingly, is reiterated which state that Disability Certificate issued by Medical Board constituted either by Central or State Government is acceptable.

Please acknowledge receipt.

Source: AIRF
[http://www.airfindia.com/Orders%202013/100413.pdf]

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