Tamil Nadu Rights of Persons with Disabilities Rules 2017 [Draft]

Tamil Nadu Rights of Persons with Disabilities Rules 2017 [Draft]

WELFARE OF DIFFERENTLY ABLED PERSONS DEPARTMENT
ROC NO.7015/DAW II-2/2017

The following draft of Tamil Nadu Rights of Persons with Disabilities Rules, which the State Government proposes to make, in exercise of the powers conferred by sub-sections (1) and (2) of Sections 101 of the Rights of Persons with Disabilities Act, 2016 (49 of 2016) is hereby published for the information of all persons likely to be affected thereby.

Objections and suggestions, if any may either be addressed by post to State Commissioner for Differently Abled, No.5, Kamarajar Salai, Lady Willington College Campus, Chennai – 600005 or by e-mail: scd.tn@nic.in on or before 22.06.2017.

The objections and suggestions which may be received from any person with respect to the said draft rules before the expiry of the period specified above alone will be considered by the State Government.

Download : Tamil Nadu Rights of Persons with Disabilities Rules 2017 [Draft] – 179KB, PDF

DRAFT RULES

CHAPTER I

1. Short title and commencement:-

(i) This rules may be called the Tamil Nadu Rights of Differently Abled Persons Rules, 2017.
(ii) This shall come into force on date of their publication in the Official Gazette.

2. Definitions:-

(1) In these rules, unless the context otherwise require,-

(a) “Act” means the Rights of Persons with Disabilities Act , 2016 (49 of 2016);
(b)”Certificate” means a certificate of disability issued under section 57 of the Act;
(c) “Form” means a form appended to these rules.

(2) Words and expressions used herein and not defined but defined in the Act shall have the meanings respectively assigned to them in the Act.

CHAPTER II

RIGHTS AND ENTITLEMENTS

3. Establishment not to discriminate on the ground of disability.

(1) The head of the establishment shall ensure that the provisions of sub-section (3) of section 3 of the Act are not misused to deny any right and benefit to differently abled persons covered under the Act.
(2) No establishment shall compel a person with disability to partly or fully pay any of the costs incurred to provide reasonable accommodation.
(3) The aggrieved person with disability may submit a representation before the State Commissioner, as the case may be, who shall dispose of the representation within a period of sixty days:
Provided that in emergency cases, the State Commissioner may dispose of such complaint as soon as possible.

4. Committee for Research on Disability:-
The State Government shall constitute a Committee for Research on Disability for the purpose of section 6(2)(ii) of the Act.

5. Procedure to be followed by Executive Magistrates:-
For the purpose of dealing with the complaints under section 7 of the Act, the Executive Magistrate shall follow the procedure laid down under sections 133 to 143 of the Code of Criminal Procedure, 1973 (2 of 1974).

6. Protection and Safety:-

(1) The Differently Abled Persons shall have equal protection and safety in situations of risk, armed conflict, humanitarian emergencies and natural disasters.
(2) The State Disaster Management Authority shall take appropriate measures to ensure inclusion of Differently Abled Persons in its disaster management activities as defined under clause (e) of section 2 of the Disaster Management Act, 2005 for the safety and protection of Differently Abled Persons.
(3) The District Disaster Management Authority constituted under section 25 of the Disaster Management Act, 2005 shall maintain record of details of Differently Abled Persons in the district and take suitable measures to inform such persons of any situations of risk so as to enhance disaster preparedness.
(4) The authorities engaged in reconstruction activities subsequent to any situation of risk, armed conflict or natural disasters shall undertake such activities, in consultation with the concerned State Commissioner, in accordance with the accessibility requirements of Differently Abled Persons.

7. Accessibility in voting:

The State Election Commission shall ensure that all polling stations are accessible to differently abled persons and all materials related to the electoral process are easily understandable by and accessible to them.
8. Provision for guardianship:
The State Government shall notify the following:

(i) Local Level Committee constituted under National Trust Act as designated authority for
the purpose of section 14(1) of the Act &
(ii) the State Commissioner as appellate authority for the purpose of section 14(3) of the Act, 2016.

CHAPTER III – EDUCATION

9. Nodal Officer in the District Education Office.—
There shall be nodal officers in the District to be designated by the District Collector representing all boards of examination including District Differently Abled Welfare officer for Special Education to deal with all matters relating to admission of children with disabilities and the facilities to be provided to them in the schools in accordance with the provisions of sections 16 and 31 of the Act.
10. Specific measures to promote and facilitate inclusive education:
The State Government shall direct concerned departments to implement the provisions given in the Section 17(a) of the above Act and also to complete the first survey within the period of 2 years from the date of commencement of the Act i.e 19.04.2019 and to send the report to the State Commissioner. The school going children should be screened for specified disabilities as defined in 2z(c) of the Act.

CHAPTER IV – SKILL DEVELOPMENT AND EMPLOYMENT

11. Manner of publication of equal opportunity policy.—
(1) Every establishment shall publish equal opportunity policy for differently abled persons.
(2) The establishments shall display the equal opportunity policy preferably on their website or at conspicuous places in their premises.
(3) The equal opportunity policy of the private establishments having twenty employees or more and the Government establishments shall, inter-alia, contain the following, namely:-

(a) facilities and amenities to be provided to the differently abled persons to enable them to effectively discharge their duties in the establishment;
(b) list of posts identified suitable for differently abled persons in the establishment;
(c) the manner of selection of differently abled persons for various posts, post-recruitment and pre-promotion training, preference in transfer and posting, special leave, preference in allotment of residential accommodation if any, and other facilities;
(d) provisions for assistive devices, barrier-free accessibility and other provisions for persons with disabilities;
(e) appointment of liaison officer by the establishment to look after the recruitment of differently abled persons and provisions of facilities and amenities for such employees: Provided that such liaison officer shall be imparted training on disability equality and etiquettes.

(4) The equal opportunity policy of the private establishments having less than twenty employees shall contain facilities and amenities to be provided to the differently abled persons to enable them to effectively discharge their duties in the establishment.

12. Form and manner of maintaining records by the establishments.—
(1) Every establishment shall maintain records in hard and soft copies which include the records maintained in the form of books or stored in a computer or tapes or discs or in any other electronic form or transcribed information of any type whether expressed in ordinary or machine language and such other documents as may be useful for the purposes of these rules.
(2) The records shall show the following particulars, namely:-

(a) the number of differently abled persons who are employed and the date from when they are employed;
(b) the name, gender and address of such person who are employed;
(c) the kind of disability of such persons employed;
(d) the nature of work being rendered by such employed differently abled persons ; and
(e) the kinds of facilities being provided to such differently abled persons .

(3) Every establishment shall produce for inspection on demand records maintained under these rules to the authorities under this Act and shall supply such information as sought which it may require for the purpose of ascertaining whether the provisions have been complied with.
(4) Every establishment shall at the time of asking by the authorized person, verify the records which are being complied with.

13. Manner of maintenance of register of complaints by the Government establishments.
(1) Every Government establishment shall appoint an officer not below the rank of a Gazetted Officer as Grievance Redressal Officer: Provided that where it is not possible to appoint any Gazetted officer, an officer of reasonable seniority shall be appointed as a Grievance Redressal Officer.
(2) The grievance redressal officer shall maintain a register of complaints and soft copy specifically maintained for the purpose and separate page shall be allotted for each complaint.
(3) The grievance redressal officer shall record the following particulars in the register, namely

(a) date of complaint;
(b) name of complainant;
(c) name of the person who is enquiring the complaint;
(d) place of incident;
(e) the name the establishment or person against whom the complaint is made;
(f) gist of the complaint;
(g) any additional information;
(h) documentary evidence, if any;
(i) date of disposal by the grievance redressal officer;
(j) details of disposal of the appeal by the district level committee; and
(k) any other information.

(4) If the aggrieved person is not satisfied with the action taken on his or her complaint, he or she may approach the District-Level Committee on disability to be constituted by the State Government under section 72 of the Act.
14. Vocational Training and Self Employment: The State Government shall formulate schemes and programmes including provision of loans at concessional rates to facilitate and support employment of Differently Abled Persons especially for their vocational training and self-employment in accordance with the provisions given in the section 19 of the Act.

CHAPTER V – SOCIAL SECURITY, HEALTH, REHABILITATION AND RECREATION

15. Social Security: The State Government shall ensure that quantum of assistance to differently abled persons under schemes formulated to safeguard and promote the right of differently abled persons shall be at least 25% higher than that available to others under similar schemes in compliance with Section 24 of the above Act.

16. Health Care: The State Government and the local authorities shall take necessary measures for the Differently Abled Persons to provide provisions given in the section 25 of the Act.

17. Insurance Schemes: The State Government shall, by notification, make insurance schemes for their employees with disabilities and also for other differently abled persons.

18. Rehabilitation: The State Government and the local authorities shall within their economic capacity and development, undertake or cause to be undertaken services and programmes of rehabilitation, particularly in the areas of health, education and employment for all Differently Abled Persons.

(2) For the purposes of sub-section (1), the State Government and the local authorities may grant financial assistance to non-Governmental Organisations.
(3) The State Government and the local authorities, while formulating rehabilitation policies shall consult the non-Governmental Organisations working for the cause of Differently Abled Persons.

19. Research and development: The State Government shall initiate or cause to be initiated research and development through individuals and institutions on issues which shall enhance habilitation and rehabilitation and on such other issues which are necessary for the empowerment of Differently Abled Persons.

20. Culture and recreation: The State Government and the local authorities shall take measures to promote and protect the rights of all Differently Abled Persons to have a cultural life and to participate in recreational activities equally with others as per the provisions given in the section 29 of the Act.

21. Sporting activities: The State Government shall take measures to ensure effective participation in sporting activities of the Differently Abled Persons and to measures for provisions given in the section 30 of the Act.

CHAPTER VI – SPECIAL PROVISION FOR PERSONS WITH BENCHMARK DISABILITIES

22. Free education for children with benchmark disabilities: The State Government shall ensure that every child with benchmark disability has access to free education in a neighborhood school or in a special school, of his choice, in an appropriate environment till he attains the age of eighteen years in compliance with Section 31 (1) & (2) of the Act and to send the report to the State Commissioner for the
Differently abled.

23. Reservation in higher educational institutions: The State Government shall ensure that Institutions of higher education and other higher education institutions receiving aid from Government shall reserve not less than 5% seats for persons with benchmark disabilities in compliance with Section 32(1) of the Act and to send the report to the State Commissioner for the Differently abled. The persons with benchmark disabilities shall be given an upper age relaxation of five years for admission in institutions of higher education.

24. Identification of posts for reservation: The State Government shall-
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

25. Reservation: The State Government shall appoint in every State Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark
disabilities under clauses (d) and (e), namely:—

(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack
victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d ) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the State Government from time to time: Provided further that the State Government, in consultation with the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled up due to non availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no Differently Abled Persons available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a Differently Abled Persons: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the State Government.
(3) The State Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.

26. Computation of vacancies.—
(1) For the purposes of computation of vacancies, four percent of the total number of vacancies including vacancies arising in the identified and non-identified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities: Provided that the reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time.
(2) Every Government establishment shall maintain a vacancy based roster for the purpose of calculation of vacancies for persons with benchmark disabilities in the cadre strength as per the instructions issued by the Government from time to time.
(3) While issuing advertisement to fill up vacancies every Government establishment shall indicate the number of reserved vacancies for each class of persons with benchmark disabilities in accordance with the provisions of section 34 of the Act.
(4) The reservation for differently abled persons in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.

27. Interchange of vacancies.—The Government establishment shall interchange vacancies in accordance with the provisions of section 34 of the Act only if due process of recruitment to fill up the vacancies reserved for persons with benchmark disabilities has been complied with.

28. Submission of Returns on Vacancies.—
(1) Every Government establishment shall furnish to the local special employment exchange returns in Form Differently abled persons Employer’s Return (PDER)-I once in every three months and in Form PDER-II once in every year.
(2) The return shall be furnished within thirty days of the respective dates which is, 31st March, June 30th, 30th September and December 31st of every financial year.
(3) The yearly return shall be furnished within thirty days of the closing of every financial year: Provided that the first yearly return shall be furnished for the financial year closing on 31st March, 2018.

29. Form in which record to be kept by an employer.
Every Government establishment shall maintain the record of employees with disabilities in Form PDER III.

30. Incentives to employees in private sector: The State Government and the local authorities shall, within the limit of their economic capacity and development, provide incentives to employer in private sector to ensure that at least five per cent of their work force is composed of persons with benchmark disability.

31. Special schemes and development programmes: The State Government and the local authorities shall, by notification, make schemes in favor of persons with benchmark disabilities, to provide,

(a) five per cent reservation in allotment of agricultural land and housing in all relevant schemes and development programmes, with appropriate priority to women with benchmark disabilities;
(b) five per cent reservation in all poverty alleviation and various developmental schemes with priority to women with benchmark disabilities;
(c) five per cent reservation in allotment of land on concessional rate, where such land is to be used for the purpose of promoting housing, shelter, setting up of occupation, business, enterprise, recreation centers and production centers.

CHAPTER VII – DIFFERENTLY ABLED PERSONS WITH HIGH SUPPORT NEEDS

32. Assessment Board: The State Government shall notify an authority under section 38(1) to receive the application for high support and refer it to “Assessment Board”. The State Government shall follow the guidelines issued by Government of India regarding constitution of Assessment Board and manner of assessment from time to time.

CHAPTER VIII – DUTIES AND RESPONSIBILITIES OF APPROPRIATE GOVERNMENT

33. Rules for Accessibility.—
(1) Every establishment shall comply with the following standards relating to physical environment, transport and information and communication technology, namely:—
(a) standards for public buildings as specified in the “Harmonized Guidelines and Space Standards for Barrier Free Built Environment for Differently abled persons and Elderly Persons” as issued by Ministry of Urban Development, Government of India in March 2016, as amended from time to time;
(b) (i) Standards for Bus Body Code for transportation system as specified in the notification G.S.R. 895(E), dated the 20th September, 2016 issued by Ministry of Road Transport and Highways, Government of India as amended from time to time.
(c) Information and Communication Technology:

(i) website standards as specified in the Guidelines for Indian Government websites, as adopted by Department of Administrative Reforms and Public Grievance (DARPG), Government of India;
(ii) Documents to be placed on websites shall be in ePUB or OCR based pdf format: Provided that the standards of accessibility in respect of other services and facilities as specified by the Central Government/State Government from time to time.

(2) The respective Departments shall ensure compliance of the standards of accessibility specified under this rule through their regulators or otherwise.

34. Review of Accessibility Standards.—The Government shall review from time to time the accessibility standards notified based on the latest scientific knowledge and technology.

35. Mandatory observance of accessibility norms: No establishment shall be granted permission to build any structure if the building plan does not adhere to the rules formulated by the Central Government under section 40 of the Act.

(2) No establishment shall be issued a certificate of completion or allowed to take occupation of a building unless it has adhered to the rules formulated by the Central &State Government.

36. Human Resource Development: Without prejudice to any function and power of Rehabilitation Council of India constituted under the Rehabilitation Council of India Act, 1992, the appropriate Government shall endeavor to develop human resource for the purposes of this Act.

37. Social Audit: The appropriate Government shall undertake social audit of all general schemes and programmes involving the differently abled persons to ensure that the scheme and programmes do not have an adverse impact upon the persons with disabilities and need the requirements and concerns of differently abled persons.

CHAPTER IX – REGISTRATION OF INSTITUTIONS FOR DIFFERENTLY ABLED PERSONS AND GRANTS TO SUCH INSTITUTIONS

38. Competent Authority: The State Government shall appoint an authority as it deems fit to be a competent authority for the purposes of this Chapter.

39. Registration: Save as otherwise provided under this Act, no person shall establish or maintain any institution for differently abled persons except in accordance with a certificate of registration issued in this behalf by the competent authority: Provided that an institution for care of mentally ill persons, which holds a valid license under section 8 of the Mental Health Act, 1987 or any other Act for the time being in force, shall not be required to be registered under this Act.

40. Application and grant of certificate of registration:
(1) Every application for a certificate of registration shall be made to State Commissioner for Differently Abled in form (Appendix III Form I) through District Differently Abled Welfare Officer along with his/her inspection report and specific recommendation.
(2) On receipt of an application under sub-section

(1), the competent authority shall make such enquiries as it may deem fit and on being satisfied that the applicant has complied with the requirements of this Act and the rules made there under, it shall grant a certificate of registration to the applicant within a period of ninety days of receipt of application and if not satisfied, State Commissioner for Differently Abled shall, by order, refuse to grant the certificate applied for: Provided that before making any order refusing to grant a certificate, State Commissioner for Differently Abled shall give the applicant a reasonable opportunity of being heard and every order of refusal to grant a certificate shall be communicated to the applicant in writing.
(3) No certificate of registration shall be granted under sub-section (2) unless the institution with respect to which an application has been made is in a position to provide such facilities and meet such standards as may be prescribed by the State Government.

(4) The certificate of registration granted under sub-section (2) ,—

(a) shall, unless revoked under section 52 remain in force for 3 years;
(b) may be renewed from time to time for 3 years; and
(c) shall be in form (Appendix III Form II) and shall be subject to such conditions specific in form (Appendix III Form II)

(5) An application for renewal of a certificate of registration shall be made in form (Appendix III Form I) not less than sixty days before the expiry of the period of validity.
(6) A copy of the certificate of registration shall be displayed by the institution in a conspicuous place.
(7) Every application made under sub-section (1) or sub-section (5) shall be disposed of by State Commissioner for Differently Abled within 30 days.

41. Revocation of registration:
(1) The State Commissioner for Differently Abled may, if it has reason to believe that the holder of a certificate of registration granted under sub-section (2) of section 51 has,—

(a) made a statement in relation to any application for the issue or renewal of the certificate which is incorrect or false in material particulars; or
(b) committed or has caused to be committed any breach of rules or any conditions subject to which the certificate was granted, it may, after making such inquiry, as it deems fit, by order, revoke the certificate: Provided that no such order shall be made until an opportunity is given to the holder of the certificate to show cause as to why the certificate of registration shall not be revoked.

(2) Where a certificate of registration in respect of an institution has been revoked under sub-section (1), such institution shall cease to function from the date of such revocation: Provided that where an appeal lies under section 53 against the order of revocation, such institution shall cease to function,—

(a) where no appeal has been preferred immediately on the expiry of the period prescribed for the filing of such appeal; or
(b) where such appeal has been preferred, but the order of revocation has been upheld, from the date of the order of appeal.

(3) On the revocation of a certificate of registration in respect of an institution, the State Commissioner for Differently Abled may direct that any person with disability who is an inmate of such Institution on the date of such revocation, shall be—

(a) restored to the custody of his or her parent, spouse or lawful guardian, as the case may be; or
(b) transferred to any other institution specified by the competent authority.

(4) Every institution which holds a certificate of registration which is revoked under this section shall, immediately after such revocation, surrender such certificate to the competent authority.

42. Appeal:

(1) Any person aggrieved by the order of the State Commissioner for Differently Abled refusing to grant a certificate of registration or revoking a certificate of registration may, within such period as may be prescribed by the State Government, prefer an appeal to Principal Secretary, Welfare of the Differently Abled Persons department against such refusal or revocation.
(2) The order of the Principal Secretary, Welfare of the Differently Abled Persons on such appeal shall be final.

43. Act not to apply to institutions established by Central or State Government: Nothing contained in this Chapter shall apply to an institution for differently abled persons established or maintained by the Central Government or a State Government.

44. Assistance to registered institutions: The appropriate Government may within the limits of their economic capacity and development, grant financial assistance to registered institutions to provide services and to implement the schemes and programmes in pursuance of the provisions of this Act.

CHAPTER IX – CERTIFICATION OF SPECIFIED DISABILITIES

45. Guidelines for assessment of specified disabilities: The State Government shall follow the guidelines notified by the Government of India from time to time for the purpose of assessing the extent of specified disability in a person.

46. Application for disability certificate and identity card-

(1) Any person with specified disability may apply in Form I for a disability certificate and submit the application to –

(a) a certifying authority or any other notified authority competent to issue such a certificate in the district of the applicant’s residence as mentioned in the proof of residence in the application; or
(b) the concerned notified medical authority or any medical officer in a government hospital where he may be undergoing or may have undergone treatment in connection with his disability; or
(c) District Differently Abled Welfare Officer who in turn shall refer the differently abled person with the application to concerned certifying authority for certifying disability.

Provided that where a differently abled person is a minor or suffering from intellectual disability or any other disability which renders him unfit or unable to make such an application himself, the application on his behalf may be made by his legal guardian or by any organization registered under the Act having the minor under its care.

(2) The application shall be accompanied by –

(a) proof of residence;
(b) two recent passport size photographs; and
(c) aadhaar number or aadhaar enrollment number, if any.

Note:- No other proof of residence shall be required from the applicant who has Aadhaar or Aadhaar enrollment number.

47. Procedure for certification:-

(a) On receipt of an application under this Act, the certifying/Medical Authority shall, verify the information as provided by the applicant and shall assess the disability in terms of the relevant guidelines issued by the Central Government and after satisfying himself that the applicant is a differently abled person certify the disability certificate in his favor in Form II, III and IV, as the case may be. Provided that the certifying/medical authority shall,-

(i) Certify a permanent disability certificate in cases where there are no chances of variation over time in the degree of disability; and
(ii) Certify a disability certificate indicating the period of validity, in cases where there is any chance of variation over time in the degree of disability.

(b) The completed and signed disability certificate shall be sent to the concerned District Differently Abled Welfare Officer within two weeks from the date of receipt of the application by the certifying authority.
(c) In the disability certificate issued by the certifying authority, the District Differently Abled Welfare Officer shall enter the District Registration number, countersign it and issue the certificate to the applicant within 2 weeks from the date of receipt from certifying/medical authority.
(d) If an applicant is found ineligible for issue of disability certificate, the certifying authority shall convey the reasons to him in writing under Form V within a period of one month from the date of receipt of the application.

48. Appeal:
(1) Any person aggrieved with decision of the certifying authority, may appeal against such decision, within such time and in such manner as may be prescribed by the State Government, to such appellate authority as the State Government may designate for the purpose.

(2) On receipt of an appeal, the appellate authority shall decide the appeal in such
manner as may be prescribed by the State Government.

49. Certificate issued under rule 46 to be generally valid for all purposes.—A certificate issued under this Act shall enable a person eligible to apply for facilities, concessions and benefits admissible under schemes of the Government and of non- Governmental organizations funded by the Government, subject to such conditions as may be specified in relevant schemes or instruction of Government as the case may be.
The certificate of disability issued under this section shall be valid across the country.

50. Validity of Certificate of disability issued under the repealed Act.-The certificate of disability issued under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) shall continue to be valid after commencement of the Act till the period mentioned therein.