Mr Umesha my point is that if a person who is orthopadically handicapped by leg or say by left hand, in that case his writing is not adversly effected and he is not justified to have extra time in the examination. My point is that this extra time for every handicapped person may defeat the whole purpose for having extra time, nonetheless I am sure when these draft guidelines will be turned into applicable rules then this provision will surely be repealed.
On 4/29/12, shaik sazid <[email protected]> wrote: > <P>hello list members I am resending this message. I do not know why > this message had not hit the list please give me suggestion as early > as possible.</P> > <P> </P> > <P>regards,</P> > <P>SAZID.SK<BR><BR>--- On <B>Sun, 29/4/12, Umesha Economics > <I><[email protected]></I></B> wrote:<BR></P> > <BLOCKQUOTE style="BORDER-LEFT: rgb(16,16,255) 2px solid; PADDING-LEFT: 5px; > MARGIN-LEFT: 5px"><BR>From: Umesha Economics > <[email protected]><BR>Subject: Re: [AI] Draft Guidelines for > Conducting Examinations<BR>To: [email protected]<BR>Date: > Sunday, 29 April, 2012, 8:12 AM<BR><BR> > <DIV class=plainMail>in which exam they are giving refreshments to scribes > during exam time? you should appose this practice. nothing except water > should be given to examinees including candidates and scribes during > exam.<BR><BR>Umesha<BR><BR>----- Original Message ----- From: "Amit Bhatt" > <<A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A>><BR>To: > <<A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A>><BR>Sent: > Thursday, 26 April, 2012 9:59 PM<BR>Subject: Re: [AI] Draft Guidelines for > Conducting Examinations<BR><BR><BR>> Well drafted guidelines, however, in > the matter of allotment of additional time of 20 minutes, I would say that > these days some examination authority provide the refreshment to the scribes > in the middle of the > examination. This practice should be stopped since it wastes our time and > also curtsy and etiquette does not allow such kind of arrangement to be made > during the examinations. If some refreshment is arranged for the writers, it > can be distributed after the exam.<BR>> Recently I had this experience > thrice in the exam hall where the scribes were arranged by the concern > examination body and they were given the refreshment while applicants were > engaged in writing their exam.<BR>> Anyways, I deem that the below > instructions are going to remove lot of hurdles and obstacle for the > examinees.<BR>> <BR>> Just wanted to know by when this entire > guideline is going to be implemented comprehensively and sharply across the > Nation?<BR>> <BR>> Regards,<BR>> <BR>> Amit Bhatt<BR>> ----- > Original Message ----- From: "Suhas Karnik" <<A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A>><BR>> > To: <<A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A>><BR>> > Sent: Thursday, April 26, 2012 9:18 PM<BR>> Subject: [AI] Draft > Guidelines for Conducting Examinations<BR>> <BR>> <BR>>> > <BR>>> <BR>>> You may find this information useful which also > contains the High Court Order in connection with the discriminatory policy > of LIC.<BR>>> <BR>>> <BR>>> <BR>>> Date: Thu, 26 Apr > 2012 18:28:51 +0800<BR>>> From: <A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A><BR>>> To: <A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A><BR>>> > Subject:<BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> Draft Guidelines for Conducting Examinations > (Practicals and/or Theory) of V I Candidates - Blind, Low Vision > Persons.<BR>>> Background:<BR>>> These guidelines are being > issued by the Ministry of Social Justice and Empowerment, Government of > India on the basis of the state's legal obligations towards persons with > disability. Most specifically, obligations and rights enshrined in the > constitution of India, the Persons with Disabilities - Equal Opportunities, > Protection of Rights and Full Participation Act (1995) and the Right to > Education Act 2009. These guidelines are also in alignment with India's > obligations under the United Nations Conventions on the Rights of Persons > with Disabilities (UNCRPD) 2006 guaranteeing all human rights and > fundamental freedoms at > the place of study and work. It will hence apply to all examining > authorities be they educational or conducting competitive exams. These > guidelines need to be understood in that spirit of seeking to provide the > appropriate reasonable accommodation and opportunity to effectively > participate in the examination process. The examining authorities have the > freedom on a case by case basis to further interpret the guidelines in the > spirit of helping special needs persons to be able to give their exams > freely and fairly. Hence a rigid interpretation which tends to be disabling > needs to be avoided. In all interpretation the onus needs to be given to > making the examination process conducive and barrier free for the > candidate.<BR>>> <BR>>> These guidelines are being framed for > visually impaired persons specifically. The Ministry or examination bodies > can borrow the same for other persons with disabilities with additional > specification that will need to > be made for persons with other disabilities.<BR>>> <BR>>> Draft > Guidelines<BR>>> 1. These guidelines are applicable > across India to all examination authorities, educational bodies, schools, > colleges, universities, competitive exam bodies and any other exam taking > institution that conducts an exam within the geographical limits of > India.<BR>>> <BR>>> <BR>>> <BR>>> > 2. These guidelines apply to theory, practicals and > multiple choice examinations. Both paper tests as well as electronic > examinations.<BR>>> <BR>>> <BR>>> <BR>>> > 3. The facility of Scribe/Reader/Lab Assistant is permitted > to any person who has disability of 40% or more if so desired by the > person.<BR>>> <BR>>> <BR>>> <BR>>> > 4. The candidate has the discretion of opting for his own > scribe/reader/lab assistant or requests the Examination > Body for the same. The candidates' preference for the same will be recorded > by the examination authority at the time of filling up the application form > for competitive/mass scale examination or at the time of admission > registration form or as a separate application system set up by the > examination authority as may be most feasible. The said procedure > needs to be completed one week prior to the examination.<BR>>> > <BR>>> <BR>>> <BR>>> 5. The examining > body to maintain a panel of scribe/ reader/lab assistant at the > District/Division/State level as per the requirements of the examination. A > scribe/ reader/lab assistant provided by the examining body needs to fulfill > the following criteria.<BR>>> <BR>>> <BR>>> <BR>>> > · Fluency in reading and writing in the language > of the test being taken<BR>>> <BR>>> · > Fluency in > reading and writing of the subject matter of the test<BR>>> > <BR>>> · Speed of writing with eligible > handwriting<BR>>> <BR>>> · Efficiency > in use of computer in case it is a computer test<BR>>> <BR>>> > <BR>>> <BR>>> The candidate will be allowed to meet the scribe/ > reader/lab assistant 3 days prior to the date of the examination so that the > candidate gets a chance to check and verify whether the scribe is suitable > or not.<BR>>> <BR>>> <BR>>> <BR>>> (Question for > consideration - The writer will be free to test the candidate in meeting the > fluency of subject and language criteria. If the candidate is not satisfied > with the writer provided, the candidate can put in a request for an > alternative writer which the examination authority shall provide. What > should be the pass/fail criteria on a test?)<BR>>> <BR>>> > <BR>>> > <BR>>> 6. In case of candidate bringing their own > reader/writer/lab assistant the following criteria will apply<BR>>> > <BR>>> a. For all examination and tests up to 8th > standard - It is impractical in the candidate's interest for a younger > student to be a writer. A standard 3 child cannot be expected to function as > a writer for a standard 4 child. In such situations, it would be incumbent > on the school authorities to create a panel of writers. For example: from > other teachers, parents or community members who could be part of the > writer/reader/ lab assistant pool. At the school level the examination > authority has to provide a writer unless the candidate makes a specific > request that he/she will arrange a writer on one's own. Upon making such a > request the candidate will be allowed to use their own writer for whom there > will not be any age/educational criteria. The school has to ensure proper > invigilation.<BR>>> <BR>>> b. For all > examination from 8th standard up to post graduation the candidate and writer > are of the same stream, educational qualifications of writer should be one > year below that of the candidate. This means that if the student is > appearing for a Second Year B.A examination, if his writer Arts stream he > can be up to first year. However, this condition will not be applicable if > they are of different streams. That is if a Second year B.A student uses a > writer from the Bsc stream the writer can be from a higher grade > (T.Y.B.Sc./M.Sc etc) as well. Apart from this, no other restrictions such as > marks obtained by the writer/reader/ lab assistant are to be > imposed.<BR>>> <BR>>> c. For all other > examinations such as all competitive examinations, all job examination, the > writer will be one grade below the qualifying year for the examination but > not less than 10th standard. > That is in all cases the writer will be one grade/class lower than the > grade eligible to give the exam i.e if the entrance exam is permitted for > third year degree students a writer up to 2nd year Degree College is > permitted to write. But in all cases where the eligibility for the > examination is less than 10th grade the writer up to 10th grade will be > permitted. For all examinations where eligibility criteria for the > examination is 7th, 8th, 9th or 10th standard, writers up to 10th standard > can write. i.e even examination with eligibility of 7th standard can use a > 10th standard writer.<BR>>> <BR>>> <BR>>> <BR>>> > 7. The candidate is permitted to take more than one > scribe/reader/lab assistant for writing different papers. The candidate > choosing their own writers will have to submit any one of the writers most > readily available bonafide proof (college id/bonafide certificate/mark > sheet) at the time of opting for the > preference as per the system mention in point 4 along with a letter from > the writer saying that the information provided by him/her is true and > he/she meets the eligibility of the writer for the said examination. > (Question for consideration - Do we want to keep this letter as > criteria?)<BR>>> <BR>>> <BR>>> <BR>>> > 8. There will be flexibility in accommodating any last > minute change in scribe/reader/lab assistant. For any last minute change the > candidate can bring a new writer with any of their most readily available > bonafide proof (college id/bonafide certificate/mark sheet). For emergency > situations the examination bodies will also at all times keep a pool of > writers/readers/lab assistants that can be utilized. The examination > authorities' writers/readers/lab assistant eligibility is only to be > measured as per point 5 and hence it would be easy for the authorities to > keep a pool of qualified > teachers/supervisors etc who can come in for an emergency.<BR>>> > <BR>>> <BR>>> <BR>>> 9. Visually impaired > persons will be given the option of choosing the mode for taking the > examinations i.e. use of writer/scribe, using the computer or in large print > or even by recording the answers. The candidate will also have the option of > selecting for a question paper in alternative formats - Braille, large font, > electronic copy. Large font specification needs to be mentioned by the > candidate. A maximum font size of 20 can be requested for. The candidates' > preference for the same will be recorded by the examination authority at the > time of filling up the application form for competitive/mass scale > examination or at the time of admission registration form or as a separate > application system set up by the examination authority as may be most > feasible.<BR>>> <BR>>> <BR>>> <BR>>> 10. In case of > candidates using a computer, the candidates should be allowed to check the > computer system, one day in advance so that the problems, if any in the > software/system could be rectified. (Question for consideration - IF > DISSATISFIED WHAT IS THE PROCEDURE? Also the detailing of this section how > much do we want?)<BR>>> <BR>>> <BR>>> <BR>>> § > The examination authority makes available a > computer with minimum 512 RAM and MS office installed and a functional > printer and headphones.<BR>>> <BR>>> § > As far as possible, the government authority/examination board > to be able to provide basic open source screen reading software and screen > magnification software on the computer. Should the same not be possible the > student aspiring to give exam on computer is requested to bring their own > screen reader/ magnifier software.<BR>>> <BR>>> § > The candidate should be allowed to install the > screen reading/magnifying software a day in advance on the computer provided > with printer installed<BR>>> <BR>>> § > The candidates are allowed to install any specific > technology which they possess which they find essential to access the basic > word reading programme and carry out proof reading.<BR>>> <BR>>> > § Access to the computer is to be > given at least 20 minutes before start of the examination.<BR>>> > <BR>>> § In case of power failure, > the time of power failure is to be noted and the same amount of time > augmented in the end time of the paper.<BR>>> <BR>>> § > UPS /invertors for back up support must be > installed and connected at the centre. Enough power back-up needs to be > provided for > the examination centre.<BR>>> <BR>>> § > Two printers may be kept for taking the final print-outs > of the answer sheets.<BR>>> <BR>>> § > The computer examination is permitted for subjects in > English or Hindi or any other language in which screen reader support is > available.<BR>>> <BR>>> § > A soft copy accessible version of the question paper is > provided at the start of the examination<BR>>> <BR>>> § > Same rule of 20 min extra time per hour will > apply to computer examinations also.<BR>>> <BR>>> <BR>>> > <BR>>> 11. In case of visual based questions, the candidate should be > given alternative text based non- visual questions. A facility for the > request for the same (non visual alternative questions) needs to be provided > at the time of > filling up the examination form/course registration form. The candidate > will have the freedom to opt for the visual questions if they so choose. The > said preference will be recorded in the appropriate form.<BR>>> > <BR>>> <BR>>> <BR>>> 12. The disability certificate issued > by the competent medical authority at any place should be accepted across > the country.<BR>>> <BR>>> <BR>>> <BR>>> 13. > Compensatory time of 20 minutes per hour of examination will be granted for > persons who are making use of scribe/reader/lab assistant. This will hold > true for both theory and practical examinations. All the candidates with > disability not availing the facility of scribe will also be allowed the > compensatory time of 20 minutes per hour.<BR>>> <BR>>> > <BR>>> <BR>>> 14. The candidates will be allowed to use > assistive devices like talking calculator (in cases where calculators are > allowed for giving > exams), Taylor frame, Braille slate, abacus, geometry kit, Braille > measuring tape and electronic devices. etc.<BR>>> <BR>>> > <BR>>> <BR>>> 15. Proper seating arrangement (preferably on the > ground floor) to be made prior to the commencement of examination to avoid > confusion or distraction during the day of the exam. The time of giving the > question papers should be marked accurately and timely supply of > supplementary papers should be ensured.<BR>>> <BR>>> > <BR>>> <BR>>> 16. The question papers and answer papers > will have rules related to extra time, exemption of visual questions and use > of scribe printed on them. The answer paper will have a marking spot that > specifies candidate with visual impairment. This is to avoid any confusion > for the supervisor and evaluator in appropriately checking and > marking.<BR>>> <BR>>> <BR>>> <BR>>> 17. The > examining body to provide reading material > in Braille or E-Text or large and bold font or on computers having suitable > screen reading softwares for open book examination. Similarly online > examination should be in accessible format i.e. websites, question papers > and all other study material should be accessible as per the international > accessibility standards laid down in this regard.<BR>>> <BR>>> > <BR>>> <BR>>> 18. For practical examinations the candidate be > permitted to use a lab assistant to make observational recordings wherever > required. The qualification rule of the lab assistant will be same as point > 6.<BR>>> <BR>>> <BR>>> <BR>>> 19. For practicals and > experiments, the visually impaired student be allowed to use material > converted wherever possible into accessible formats such as tactile > diagrams, large font and expanded size diagrams, Braille, accessible > equipments etc. The same will be worked on by the examination > authorities in > partnership with resource centers. The Examination bodies to work with > partnerships with resource centers to make the material available to > them.<BR>>> <BR>>> <BR>>> <BR>>> 20. Visually > impaired candidates will be allowed to feel objects and any other practical > apparatus for identification and any other purpose of the > examination<BR>>> <BR>>> <BR>>> <BR>>> 21. If any > experiment contains visual content to a large extent the student will be > examined on that experiments or that aspect of the experiment through a > viva. The competent authority after consultation with appropriate agencies > on visual impairment will specify the experiments in the syllabus which > involve visual content to a large extent for the information of the visually > impaired student and the examiners. The said information will be specified > in the syllabus published and practical manuals published at the beginning > of the year > itself.<BR>>> <BR>>> <BR>>> <BR>>> 22. Practicals > on computer programs need to be made accessible with a screen > reader/magnifier/suitable assistive technology program.<BR>>> > <BR>>> <BR>>> <BR>>> 23. Visually Impaired students should > be allowed to use a word processor program to type his/her Journals and then > print outs can be either filed as a Journal or they can be pasted in a > regular Journal. In absence of computer facility the student will be allowed > a use of assistant to write the journal. No criteria will apply to who the > assistant will be as this is out of class work.<BR>>> <BR>>> > <BR>>> <BR>>> 24. Visually impaired students will be exempted > from drawing diagrams in the journal. For low vision students who are > comfortable drawing diagrams, they may be permitted to do so. Students not > drawing diagrams, In place of the diagram a description of the same will be > written. If the > student wishes he/she may attach any tactile diagrams used by him/her to > study. For the purpose of evaluation the marks for diagrams will be > compensated by the written explanations.<BR>>> <BR>>> > <BR>>> <BR>>> 25. Each examination authority to assign within > its existing system an officer on special duty who will be exclusively > responsible to processing requests of students with special needs and > addressing concerns, providing services and ensuring appropriate > implementation of these rules. The contact information of the said officer > need to be published in all application/admission forms, brochures, website, > directories and any other suitable places. The said officer needs to be > appointed at the examination centre/district/state level as per the existing > system of the examination body. (Question for consideration - How better can > we suggest this system?)<BR>>> <BR>>> <BR>>> <BR>>> > 26. Question for > consideration - Still to be debated - make practicals as stated above or > VIVA? Viva up to 10th/12th standard and accessible practical as mentioned > above for higher standards?<BR>>> <BR>>> <BR>>> > <BR>>> 27. Question for consideration - FEES OF WRITERS? How much? Who > is to provide this? Compulsory or optional?<BR>>> <BR>>> > <BR>>> <BR>>> 28. The said guidelines will be reviewed on a 5 > yearly basis to keep up with new technologies and services available in the > field as also advances in the educational systems. The review will be > conducted by the Ministry of Social Justice and Empowerment in consultation > with all relevant stakeholders.<BR>>> <BR>>> <BR>>> > <BR>>> End of points.<BR>>> <BR>>> <BR>>> > <BR>>> IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 15th > February, 2012 + W.P.(C) No.10323/2009 % VIKAS GUPTA ....Petitioner Through: > Mr. Pankaj Sinha, Adv. > Versus UOI & ANR. ..... Respondents Through: Mr. B.V. Niren, CGSC CORAM > :- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW > JUDGMENT RAJIV SAHAI ENDLAW, J. 1. This writ petition filed in public > interest seeks mandamus to the respondent Postal Life Insurance Directorate, > Department of Posts, Government of India to keep the maximum sum assured for > disabled persons at `5,00,000/-, at par with non-disabled persons and to > reduce the premium for disabled persons by bringing it at par with that for > non-disabled persons.<BR>>> <BR>>> 2. The case, as set out in > the writ petition is that Postal Life Insurance Policy is issued by the > respondents for the benefit of employees of Post and Telecommunication > Department and other government employees; that the said Policy makes a > distinction between disabled and non-disabled employees; whereas > non-disabled employees can avail a maximum insurance of `5,00,000/-, the > maximum sum > insured for disabled employees is `1,00,000/- only; not only so, the > disabled employees have to pay an extra premium also. The petitioner > contends that the discrimination so meted out to the disabled employees is > violative of Article 14 of the Constitution of India and the classification > of the disabled and non-disabled employees in the matter of issuance of > insurance policy is not based on any reasonable differentia and has no nexus > with the purpose for which such insurance policies are issued. It is yet > further contended that the same is violative of The Persons with > Disabilities (Equal Opportunities, Protection of Rights and Full > Participation) Act, 1995 enacted in culmination of the decisions taken in > the United Nations Convention on the Rights of Persons with Disabilities, to > which India is a signatory.<BR>>> <BR>>> 3. Notice of the > petition was issued. From time to time, assurance was meted out that the > grievance in the writ petition > was being looked into and appropriate steps shall be taken. On 06.01.2010 > the counsel for the respondent informed that a decision had been taken in > principle for providing the insurance cover at par with the non-disabled > employees and a<BR>>> <BR>>> decision on the issue of additional > premium will also be taken shortly thereafter. On 20.01.2010 the learned > Additional Solicitor General (ASG) appearing for the respondents placed on > record a copy of the Notification dated 04.01.2010 issued by the Directorate > of Postal Life Insurance to the effect that the maximum limit of insurance > for disabled persons had been brought at par with non-disabled persons. Time > was sought to obtain instructions on whether the disparity in the matter of > payment of premium had been removed or not. 4. An affidavit dated 09.02.2010 > was thereafter filed by the GM (PLI), Postal Life Insurance Directorate > stating that some extra premium was charged from the persons with > disability since disabled persons are more prone to accidental risks as > compared to non-disabled persons. It was inter alia stated in the said > affidavit:-<BR>>> <BR>>> "5. That as regards the issue of extra > premium it is submitted that the Insurance Policy is a contract between the > insurer and the insured. It identifies the insured, the insuring company, > risks covered, policy period and premium amount. The Insurance Policy is > binding on both the insurer and insured. In the insurance business a pool is > created through contributions made by persons seeking to protect themselves > from common risk.<BR>>> <BR>>> <BR>>> <BR>>> Premium > is collected by insurance companies which also act as trustee to the pool. > Any loss to the insured in case of happening of an uncertain event is paid > out of this pool. It works on the principle of risk sharing. Therefore > prejudice would be caused to the normal insured persons in case of any > casualty of the disabled persons. As disabled persons are more prone to > accidental risks as compared to normal persons and the amount which is to be > paid to the family of the deceased would be paid out of the same pool. 6. > That the extra premium payable by the disabled person is marginally > different from extra premium payable by normal persons as specified in Rule > 14 of Post Office Life Insurance Fund. Also in case of LIC insurance, > numerical loading of under-writing system is followed." 5. It was however > the contention of the counsel for the petitioner that there was no empirical > evidence to support such averment. The petitioner in response dated > 08.03.2010 to the aforesaid affidavit of the respondents has inter alia > stated as under:<BR>>> <BR>>> "4. The extra premium clause has > no scientific base nor can be justified by any legal enactment. On the > contrary, such a stand alone stipulation for Persons with Disabilities in > form of a > special scheme in the Postal Life Insurance for Government employees is > discriminatory, non-inclusive, unjust and violates principles of natural > justice of equity and fairness and above all it runs against the mandate of > the Persons with Disability Act and the UN Convention on the Right of > Persons with Disabilities that India is a proud signatory to. Further, it > specifically violates Articles 3 and 25(e) of the United Nations Convention > on the Rights of Persons with Disabilities (hereinafter referred to as > UNCRPD). 5. That contents of para 5 are admitted to the extent that any loss > to the insured in case of happening of an uncertain event is paid out of > this pool and that it works on the Principle of risk sharing. However, it is > strongly denied that prejudice would be caused to the normal insured persons > in case of any casualty of the disabled persons as disabled persons are more > prone to accidental risks as compared to normal persons and the amount > which is to be paid to the family of the deceased would be paid out of the > same pool. On the contrary, it is submitted that there is no empirical study > or data to support or substantiate such a baseless, false & biased view > which only reinforces the stereotypes about persons with disability and > their proneness to accident. Therefore it is highly discriminatory hence, > void in law and against the Constitution of India & UNCRPD. It is > further submitted that right to equality and non-discrimination are > inalienable rights which cannot be taken away by any contract."<BR>>> > <BR>>> <BR>>> <BR>>> 6. On 10.03.2010, the learned ASG > again sought time to explain the basis for the charge of higher premium from > persons with disability. Thereafter also from time to time, it was stated on > behalf of the respondent that the matter of higher premium for the disabled > persons was under consideration of the concerned authorities. 7. The > respondents in yet another affidavit dated 01.02.2011 inter alia stated as > under: "3. That the Insurance Policy is a contract between the Insurer and > the insured and is binding on both. That the Insurance business has a common > pool created through contributions made by persons seeking to protect > themselves from common risk. The premium is collected in furtherance of this > objective according to different schemes for different category. 4. That > regarding the extra premium demanded for the category of Disabled / > differently abled persons, the extent of handicap differs from one person to > another. Hence it has been decided that the premium shall be decided upon > the health profile of the individual proponent".<BR>>> <BR>>> > <BR>>> <BR>>> The petitioner in response dated 24.05.2011 to the > above has inter alia stated as under: "4. It is further submitted that > charging extra premium from employees with disabilities is a direct > discrimination with them on the basis of disability which is in direct > conflict with Article 2 of UNCRPD set out as under: "Discrimination on the > basis of disability" means any distinction, exclusion or restriction on the > basis of disability which has the purpose or effect of impairing or > nullifying the recognition, enjoyment or exercise, on an equal basis with > others, of all human rights and fundamental freedoms in the political, > economic, social, cultural, civil or any other field. It includes all forms > of discrimination, including denial of reasonable > accommodation;"<BR>>> <BR>>> 5. The justification of health > profile put forward by the respondents is faulty for they seem to treat > disability as a negative health profile. It is submitted that living with > disability is distinct from suffering from a disease, while the respondent > seem to consider both as synonymous. An employee with visual impairment or > with hearing impairment or with > neurological impairment also enjoys good health like anybody else. > Therefore, an employee living with a disability will not mean that he / she > is suffering from a disease and prone to life risks or susceptible to die > pre-maturely. Such a conclusion on the part of respondent is illogical, > arbitrary, have no empirical base and without any understanding of > disability. Therefore, such a conclusion is required to be struck > down.<BR>>> <BR>>> 6. It is further submitted that letter > received from the LIC under RTI reveals that the LIC has the mortality rate > (empirical data) for persons who have availed the insurance policies from > the Corporation. However, LIC categorically states that it doesn't maintain > separate data for handicapped category. This clearly shows that PLI is > following the pattern which has been decided by LIC arbitrarily and without > applying any sound mind." 9. On 28.09.2011, a categorical statement was made > by the learned ASG > (and as recorded in the order of that date) that no extra premium is > collected from the differently abled persons. The respondent was asked to > put the said stand on affidavit. 10. However in the affidavit dated > 30.11.2011 filed in pursuance to above, it is stated:-<BR>>> > <BR>>> "3. That in view of the above submission made by the answering > respondents and the direction of the Hon'ble Court, the deponent herein > submits that the "Post Office Life Insurance Rules - 2011", deals with the > relevant schemes for healthy persons and physically handicapped persons. > Rule 13 of the Post Office Life Insurance Rules provides for the medical > schemes. As per Rules 13, for the Postal Life Insurance Schemes for sum > assured of more than ` 1 lakh and for Rural Postal Life Insurance Schemes > with sum assured of ` 25,000/-, a proposer must undergo a medical > examination by the prescribed medical authority and must be declared fit for > such insurance by the > said authority. The medical examination is done thoroughly to ensure that > the proposer does not suffer from any adverse medical > conditions.<BR>>> <BR>>> 4. Rule 14 deals with non-medical > schemes of Postal Life Insurance. Any person whose age on next birthday does > not exceed 35 years (with the exclusion of handicapped person) and whose > insurance proposal has not been turned down by any insurance company > operating in India may apply for non-medical policy with maximum sum assured > of ` 1 lakh. In Rule 15, in Rural Postal Life Insurance any person whose age > on next birthday does not exceed 35 years and who is eligible for Rural > Postal Life Insurance (with the exclusion of handicapped person) and whose > proposal has not been turned down by any insurance company operating in > India may apply for non-medical insurance with maximum sum assured of ` > 25,000/-. In case of non-medical policy of PLI and RPLI, a self declaration > is taken from the proposer > that he is medically fit at the time of proposal. 5. That physically > handicapped persons are covered under Rule 17 of the Post Office Life > Insurance Rules. As per Rule 17, physically handicapped persons are assured > under the "Scheme for Physically Handicapped" and have to undergo a special > medical examination in order to determine the exact nature and extent of > their handicap and its bearing on the life insured. The said Rule covers > both congenital and non-congenital handicaps and is complete scheme for all > kinds of handicapped persons. The premium in respect of the policy taken > under the scheme is determined by the accepting authority based on the > report of the medical examination. A copy of the relevant provisions of the > Post Office Life Insurance Rules - 2011 has been annexed herewith and marked > as ANNEXURE -R1.<BR>>> <BR>>> 6. That the premium to be charged > from proposer with any adverse medical history and physically handicapped > persons is directly based on their physical condition as ascertained by the > medical authorities under the Special medication examination undergone by > the person concerned. Thus the distinction made between a healthy person and > persons with adverse medical history and physically handicapped persons is > absolutely reasonable and fair. It is imperative for the Medical authorities > to determine the exact nature and extent of the handicap and its bearing on > the life being insured as there is always the risk that the person may be > suffering from a handicap due to which life risk is increasing. This would > in turn affect the life span adversely of the person concerned. Therefore, > it is not only fair but also reasonable to have different premiums > applicable to medically fit persons as opposed to persons with adverse > medical history and physically handicapped persons." 11. We have heard the > counsel for the parties. At the outset, we express our displeasure at the > respondents, inspite of unequivocal statement made before this Court on > 28.09.2011 to the effect that no extra premium is charged from the > differently abled persons, upon being directed to file an affidavit in > confirmation of the same, having turned turtle, falsifying not only the > statement made before this Court but also purporting to justify the > same.<BR>>> <BR>>> 12. The counsel for the petitioner has > contended that a higher premium for life insurance cannot be claimed merely > for the reason of the insured suffering from a disability, as is being done. > It is argued that a disability does not per se shorten the life and thus > affect the risk insured. To demonstrate the same, it is urged that a blind > or a deaf or a dumb person has the same life expectancy as a person with > sight, hearing and speaking ability. The discrimination is urged to be also > in violation of the Disabilities Act and of the U.N. Convention aforesaid. > Attention has been > particularly invited to: (i) Article 2 of the U.N. Convention (supra) > defining "Discrimination on the basis of Disability" as any distinction, > exclusion or restriction on the basis of disability having the effect of > nullifying enjoyment on equal basis of human rights and as including all > forms of discrimination; (ii) Article 4 of the Convention whereunder the > signatories thereto had undertaken to take all appropriate measures to > abolish existing laws, regulations, practices constituting discrimination > against persons with disability; (iii) Article 25 of the Convention > whereunder the signatories thereto had undertaken to prohibit discrimination > against persons with disabilities in the provision of health insurance and > life insurance where such insurance is permitted by national law and to > provide such insurance in a fair and reasonable manner.<BR>>> > <BR>>> <BR>>> <BR>>> 13. The counsel for the petitioner > has also contended > that the respondent inspite of numerous opportunities has failed to place > any data before this Court to demonstrate that life expectancy of a person > with disability is less than that of a non-disabled person. He has also > placed on record a plethora of other material in this regard. 14. Per > contra, the counsel for the respondents has argued that the higher premium > charged from the persons with disability is owing to assessment of their > life status and not on account of disability and thus it is wrong to contend > that there is any discrimination on account of disability. 15. However, a > perusal of the Post Office Life Insurance Rules, 2011 notified on 28.04.2011 > shows that Rules 14 & 15 thereof expressly exclude handicapped persons; > Rule 17 thereof provides for "Scheme of PLI for Physically Handicapped > Persons"; such persons are required to undergo a special medical examination > to determine the exact nature and extent of their handicap and its > bearing on the life being insured. Premium in respect of such policies is > to be "determined by the accepting authority".<BR>>> <BR>>> 16. > The "physically handicapped persons" are thus indeed being treated > separately by the respondents and the respondents have in affidavits > (supra)<BR>>> <BR>>> already admitted to charging higher premium > from them justifying the same on the higher risk being insured. 17. The > question which thus arises is whether in the matter of life insurance, such > classification of persons with physical disability can be said to be > discriminatory. 18. The Disabilities Act though in the Preamble thereof > proclaims to have been enacted to ensure equality the people with > disabilities but in Chapter VIII thereof titled "Non-Discrimination" only > deals with non-discrimination in transport, non-discrimination on the road, > non-discrimination in the built environment and non-discrimination in > Government > employment and does not provide for non-discrimination in the matter of > insurance. 19. The counsel for the petitioner has referred to:- (a) State of > Orissa v. Dr. Binapani Dei AIR 1967 SC 1269 - to contend that not only the > judicial authorities but also the quasi judicial and administrative > authorities are obliged to follow the requisites of Article 14 of the > Constitution;<BR>>> <BR>>> (b) Govind A. Mane v. State of > Maharashtra (2000) 4 SCC 200<BR>>> <BR>>> and Satyawati Sharma > v. UOI AIR 2008 SC 3148 to contend that though Article 14 does not prohibit > classification, the same must be founded on an intelligible differentia > having a rational nexus to the object sought to be achieved - that the > classification based on employees" / person"s disability is neither > reasonable nor has any rational nexus to the object sought to be achieved by > the Policy; (c) Dr. K.R. Lakshmanan v. State of Tamil Nadu AIR 1996 SC 1153 > where the > legislation was struck down for being violative of Article 14 of the > Constitution; (d) Transport Corporation of India v. Employees' State > Insurance Corporation AIR 2000 SC 238 where the notification issued under > the Employees" State Insurance Act, 1948 covering the main establishments in > Andhra Pradesh was held to be applicable also to employees of the branch > offices situated in Bombay; (e) Zee Telefilms Ltd. v. UOI AIR 2005 SC 2677 > to contend that the classification under the policy is not based on hard > facts and is based on mere surmises; and<BR>>> <BR>>> > <BR>>> <BR>>> (f) Superintendent, Central Prison, Fatehgarh v. > Dr. Ram Manohar Lohia AIR 1960 SC 633 to contend that the instant policy is > invalid in so far as it contravenes Article 14 by classifying the > beneficiaries of the scheme based on physical disability.<BR>>> > <BR>>> 20. We find that in the matter of insurance, the Apex Court in > LIC of India v. Consumer > Education and Research Centre (1995) 5 SCC 482 observed that authorities in > the field of insurance owe a public duty to evolve their policies subject to > such reasonable, just and fair terms and conditions accessible to all the > segments of the society for insuring the lives of eligible persons. It was > further held that the eligibility conditions must be conformable to the > Preamble, Fundamental Rights and the Directive Principles of the > Constitution. The Supreme Court observed that, the Preamble, the arch of the > Constitution, assures socio-economic justice to all the Indian citizens in > matters of equality of status and of opportunity with assurance to dignity > of the individual; Article 14 provides equality before law and its equal > protection; Article 19 assures freedom with right to residence and > settlement in any part of the country and Article 21 by receiving expansive > interpretation of right to life extends to right to livelihood; Article 38 > in the > Chapter of Directive Principles enjoins the State to promote the welfare of > the people by securing and protecting effective social order in which > socio-economic justice shall inform all the institutions of national life - > it enjoins to eliminate inequality in status, to provide facilities and > opportunities among the individuals and groups of people living in any part > of the country. Reference was also made to Article 39 which assures to > secure the right to livelihood, health and strength of workers, men and > women. It was further held that the material resources of the community are > required to be so distributed as best to sub serve the common good. > Reference was made to Article 41 assuring social security and Article 47 > imposing a positive duty on the State to raise the standard of living and to > improve public health. Reliance was also placed on several Articles of > Universal Declaration of Human Rights to apply the said principles. It was > held that > though a contract of insurance is a bilateral agreement on human life upon > payment of premia but the insurer is not entitled to impose unconstitutional > conditions which deny the right of entering into the contract, limiting only > to a class of persons under a particular policy. It was held that insurance > being a social security measure should be consistent with the constitutional > animation and conscience of socio-economic justice adumbrated in the > Constitution. It was further observed that over-emphasis on classification > would inevitably result in substitution of the doctrine of equality > enshrined in Article 14 with the doctrine of classification. Dealing with > the arguments of the insurer, it was held that though for the insurer, to > successfully operate the life insurance it is necessary to forecast > mortality among insured lives within a relatively narrow margin of error and > to this end the insurer is entitled to scrutinize the medical history of the > lives to be covered under the appropriate policy but it was held that the > insurer cannot adopt a soft and easy course as in that case of restricting > insurance to those in employment of government, semi-government and reputed > commercial firms and thereby excluding lives in vast rural and urban areas > engaged in unorganized or self-employed sectors. Such an action of the > insurer was held amenable to judicial review. The policy, confining > insurance to salaried class from government, semi-government or reputed > commercial firms was thus held to be discriminatory and offending Article 14 > and struck down. In our opinion the aforesaid judgment of the Apex Court > applies on all fours to the facts of the present case also.<BR>>> > <BR>>> 21. Our further research shows:-<BR>>> <BR>>> that > the European Court of Justice (Grand Chamber) in Association belge des > Consommateurs Test-Achats ASBL Vs. Conseil des ministres [2011] 2 CM LR 38 > of the > European Union held differences in insurance premiums on account of gender > to be violative of the prohibition against the discrimination on the basis > of sex. The argument of women being at greater risk on account of pregnancy > and maternity was negatived by observing that "though the costs related to > pregnancy and maternity for obvious biological reasons can arise only in the > case of women but must not result in differences in premiums and that the > fact that male insured persons are enlisted to finance the costs related to > pregnancy and maternity is of course justified by the principle of > causation. It is true that only women can become pregnant, but every > pregnancy also involves a man."<BR>>> <BR>>> b. Literature from > America also shows that though in the past discrimination against persons > suffering from mental illness existed but the tide of discrimination is > starting to turn. Laws like the Americans with Disabilities Act, 1990, the > Mental Health Parity Act, 1996 and other such State laws show an increased > awareness of the problems of discrimination against those with mental > illness and have given the lawyers tools for combating discrimination. The > Americans with Disabilities Act offers strong protections for the disabled > in many areas which have overcome much of the discrimination that occurs > with insurance and has become a foundation for opposing insurance > discrimination based on mental disability. It has been held that > discrimination on the basis of mental disability wrongly deprives full > insurance benefits to the majority of individuals suffering from mental > illness. It has further been held that denial of insurance benefits violates > the principles behind federal and state laws created to eradicate > discrimination based on mental illness. Society has been held to be best > served by an insurance system that gives people suffering from any illness > the chance to return to a healthy > and productive life.<BR>>> <BR>>> c. In Thanda Wai v. All State > Insurance Co. reported in 75 F Supp. 2d 1 (D.D.C. 1999) before the United > States District Court, District of Columbia - the mandatory insurance > coverage was denied to the landlords for having let out the house to those > suffering from disability. It was the stand of the United States in that > case that the same was discriminatory and violative of the provisions of > Americans with Disabilities Act, 1990 and the Fair Housing Act, 1968. It was > further stated that such statutes are to be interpreted broadly to further > their underlying purposes. The provision in the statute prohibiting > disability based discrimination was held to cover discrimination in the > matter of insurance policy. Disability based discrimination in the terms and > conditions of insurance policies were argued to constitute an infringement > of the full and equal enjoyment of the insurance company"s goods, services, > privileges & advantages. It was yet further argued that outright > rejection of a person based on their disability plainly constitutes a denial > of full and equal enjoyment of insurance company"s goods and services. The > importance of insurance to individuals with disabilities was described by > observing "there can hardly be a service more central to the day to day life > of a seriously disabled person than insurance - for it is often insurance > coverage that will determine a disabled person"s ability to prevent the > disability from limiting his or her participation in society. The Court held > that although insurance policies are not expressly mentioned in the text of > Fair Housing Act, denial of insurance on the basis of disability was > nevertheless violative of the provisions thereof and would make a dwelling > unavailable to persons with disability. 22. It would thus be seen that > disability per se cannot be the basis of discrimination in the matter of > insurance. This Court is therefore unable to uphold the action of the > respondents and/or the provisions of the Rules (supra) which create persons > with disabilities class unto themselves. The same undoubtedly is a violation > of the Disabilities Act even though not expressly dealing with the matter of > insurance. The persons with disability cannot be grouped together for the > purpose of insurance. They are to be treated similarly as > others/non-disabled persons and just like in the case of non-disabled > persons, the insurance risk is assessed on an individual basis, are liable > to be similarly assessed; while so assessing, depending upon the risk > assured and the risk assessed, premium is to be computed.<BR>>> > <BR>>> <BR>>> <BR>>> We therefore allow this writ petition > and direct the respondents to treat persons with disability at par with the > non-disabled persons in the matter of Postal Life Insurance by providing > them with the same > maximum cover and charging them the same premium as being charged from > non-disabled persons, regard of course being had to the risk, depending on > assessment of individual cases. The petition is disposed of with no order as > to costs. RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE FEBRUARY 15, 2012 > "gsr"/pp<BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> <BR>>> <BR>>> <BR>>> <BR>>> > <BR>>> Search for old postings at:<BR>>> <A > href="http://www.mail-archive.com/[email protected]/"; > target=_blank>http://www.mail-archive.com/[email protected]/</A><BR>>> > <BR>>> To unsubscribe send a message to<BR>>> <A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A><BR>>> > with the subject unsubscribe.<BR>>> <BR>>> To change your > subscription to digest mode or make any other changes, please visit the list > home page at<BR>>> <A > href="http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in"; > target=_blank>http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in</A><BR>>> > <BR>>> <BR>> <BR>> <BR>> <BR>> Search for old postings > at:<BR>> <A > href="http://www.mail-archive.com/[email protected]/"; > target=_blank>http://www.mail-archive.com/[email protected]/</A><BR>> > <BR>> To > unsubscribe send a message to<BR>> <A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A><BR>> > with the subject unsubscribe.<BR>> <BR>> To change your subscription > to digest mode or make any other changes, please visit the list home page > at<BR>> <A > href="http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in"; > target=_blank>http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in</A><BR>> > <BR>> <BR><BR><BR><BR>Search for old postings at:<BR><A > href="http://www.mail-archive.com/[email protected]/"; > target=_blank>http://www.mail-archive.com/[email protected]/</A><BR><BR>To > unsubscribe send a message to<BR><A > href="http://in.mc1925.mail.yahoo.com/mc/[email protected]"; > ymailto="mailto:[email protected]";>[email protected]</A><BR>with > the subject unsubscribe.<BR><BR>To change your subscription to digest mode > or make any other changes, please visit the list home page at<BR><A > href="http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in"; > target=_blank>http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in</A><BR><BR></DIV></BLOCKQUOTE> > > > Search for old postings at: > http://www.mail-archive.com/[email protected]/ > > To unsubscribe send a message to > [email protected] > with the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, please > visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > > -- LL.M candidate at Faculty of Law in University of Delhi Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. 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