Statute
- Persons with Disabilities ( Equal Opportunities, Protection of Rights and Full Participation ) Act, 1995 - Replaced with Rights of persons with Disabilities Act 2016
- Adoption of the Proclamation on the Full participation and Equality of People with Disabilities in the Asian and Pacific Region in the meeting of member states of Economic and Social Commission for Asia and Pacific held in Beijing in December 1992 - India was a signatory
- 2007 - India ratified the United Nations Convention on the Rights of Persons with Disabilities ( UNCRPD )
- Parliment enacted - The Rights of Person with Disabilities Act, 2016
Section 34 of 2016 Act
Reservation
- Every appropriate Government SHALL appoint in every Government establishment, NOT less than 4% of the total number of vacancies in the cader strength in each group of post meant to be filled with person with benchmark disabilities of which one per cent, each SHALL be reserved for persons with benchmark disabilities under clause(a), (b) and (c) and 1% for benchmark disabilities under clauses (d) & (e)
- (a) - blindness and low vision;
- (b) - deaf and hard of hearing
- (c) - locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victim and muscular dystrophy;
- (d) autism, intellectual disability, specific learning disability and mental illness;
- (e) multiple disabilities from amongst persons under (a) to (d) including deaf-blindness in post identified for each disabilities
Important Points
- Person with Physical disabilities have Right to Reservation in PROMOTION
- 1995 Act recognizes right to reservation in promotion
- Identification of posts for reservation as per Section 32 of 1995 Act is a prerequisite for appointment, but appointment cannot be frustrated by refusing to identify posts.
- The absence of provision for reservation in the recruitment rules will not defeat the right of PWD as such right flows from legislation.
- Reservation to promotion can be given to a PWD even if the person was not originally appointed in PWD quota.
- Mode of recruitment immaterial for asserting rights under the PWD Act.
- A resistance to such reservation is obvious from the delaying tactics adopted by most of the govt authorities in truly implementing the intent.
- It is shown that sometimes it is easier to bring a legislation into force but far more difficult to change social mind set which would endeavour to find ways and means to defeat the intent of the Act
- Only CAVEAT - if govt is of the view that the posts in the promotional cadre cannot be reserved for PwD category DUE to functional or other reason and that should not be ruse to defeat the reservation in promotion.
Argument against such Reservation- Compassionate Appointment and not PWD quota
- Rejecting this argument : To accept it would be discriminatory and violative of the mandate of the Constitution.
Unique Points
- Person with Physical disabilities have Right to Reservation in PROMOTION
- 1995 Act recognizes right to reservation in promotion
- Identification of posts for reservation as per Section 32 of 1995 Act is a prerequisite for appointment, but appointment cannot be frustrated by refusing to identify posts.
- The absence of provision for reservation in the recruitment rules will not defeat the right of PWD as such right flows from legislation.
- Reservation to promotion can be given to a PWD even if the person was not originally appointed in PWD quota.
- Mode of recruitment immaterial for asserting rights under the PWD Act.
- A resistance to such reservation is obvious from the delaying tactics adopted by most of the govt authorities in truly implementing the intent.
- It is shown that sometimes it is easier to bring a legislation into force but far more difficult to change social mind set which would endeavour to find ways and means to defeat the intent of the Act
- Only CAVEAT - if govt is of the view that the posts in the promotional cadre cannot be reserved for PwD category DUE to functional or other reason and that should not be ruse to defeat the reservation in promotion.
- Compassionate Appointment and not PWD quota
- Rejecting this argument : To accept it would be discriminatory and violative of the mandate of the Constitution.
- OBC - NCL certificate NEED NOT be produced along with submission of the application and can be produced later - [1]
Statute
Cases
- Union of India Vs Abdul Rasheed SLP No 3116/2017
- Indra Sawhney Vs UoI 1992 Supp(3) SCC 217
- Reservation only max upto 50%
- Non Creamy layer for OBC
- Rajeev Kumar Gupta Vs UoI 2016 13 SCC 153
- Effect of Reservation would be applicable even in promotion
- Siddaraja Vs State of Karnataka 2020 3 SCALE 99
- affirmed Rajeev Kumar Gupta ( supra )
- Rule of No reservation in promotion as laid down in Indra Sawhney case has NO APPLICATION to persons with Disability (PWD)
- State of Kerala Vs Leesamma Joseph
- Leesamma Joseph - employed on compassionate grounds - Entry point was NOT of a person with disability under 1995 Act
- National Confederation for Development of Disabled Vs Union of India 2015 SCCOnline Bom 5112
- Directed benefits of reservation in matters of promotion was also examined
- Union of India Vs National Federation of Blind
- Reservation has to be computed with reference to total number of vacancies in cadre strength and no distinction can be made between the post to be filled by direct recruitment and by promotion.
Appendix
- Reservation only max upto 50%
- Non Creamy layer for OBC
- Effect of Reservation would be applicable even in promotion
- affirmed Rajeev Kumar Gupta ( supra )
- Rule of No reservation in promotion as laid down in Indra Sawhney case has NO APPLICATION to persons with Disability (PWD)
- Leesamma Joseph - employed on compassionate grounds - Entry point was NOT of a person with disability under 1995 Act
- Directed benefits of reservation in matters of promotion was also examined
- Reservation has to be computed with reference to total number of vacancies in cadre strength and no distinction can be made between the post to be filled by direct recruitment and by promotion.
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