RPWD Bill 2016 & the Right to Reservation in Promotion for Employees with Disabilities

Dear Colleagues,

Please refer to my earlier post dated July 1, 2016 titled 'Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C and D alike'. Subsequently on 15th Dec 2016, the Hon'ble Supreme Court rejected the Review Petition filed by the DoPT against the judgement thereby making the its said judgement final.

Meanwhile, the Rights of Persons with Disabilities Bill 2016 has been passed by the Rajya Sabha (14 Dec 2016) and the Lok Sabha (16 Dec 2016) with over 119 amendment in the 2014 bill. Let me come straight to the concerned section dealing with the employment. I reproduce the concerned sections from 1995 Act and 2016 Bill below which clarifies things:

Extracts from PWD Act of 1995

32. Appropriate Governments shall--
(a) Identify posts, in the establishments, which can be reserved for the persons with disability;
(b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-
(i) Blindness or low vision;
(ii) Bearing impairment;
(iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: 
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.'

Extract from RPWD Bill 2016

'33. The appropriate 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

34. (1) Every appropriate Government shall appoint in every 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 per cent. 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 35 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 appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or 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.'

The problem areas

The interpretation of this section 33 of the Act of 1995 meant that reservation in promotion was available to employees with disabilities in all groups i.e. ABC& D as held by Hon’ble Supreme Court on 09 Oct 2013 in 'Union of India Vs. National Federation of Blind' wherein court directed Govt. of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts as was being done for Gp C & D earlier. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act 1995, provided for reservation in promotion for persons with disabilities in Groups A and B also. Again in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others court held that reservation in promotion has to be given in Gp A & B posts under section 33. 

Despite clear writing on the wall on the issue of reservation in promotion for persons with disabilities after the Supreme Court's clarification, the bill negates the judgement. It relegates the right to reservation in promotion to a provisio  where it is left to the appropriate governments to issue instructions from time to time! I would say this bill takes away reservation in promotion from the PwDs in a clandestine manner and leaves this to the mercy of the states who have never been serious about implementing the benevolent legislation.

A National Consultation on the RPWD Bill on 29-30 Dec 2016 in Delhi

The above is one example, there are host of others that we find are negating the rights of persons with disabilities and also these are not in conformity with the UNCRPD to which this Bill claims to align with. Lawyers, activists, persons with disabilities will put their mind to the Bill and analyse where its goes wrong and how can this be corrected to ensure that rights of persons with disabilities are not taken away under the garb of legislation. We invite you to this consultation that starts tomorrow. For more details please visit the page 'Invitation for National Consultation on RPWD Bill 2016 on 29-30 Dec 2016 at New Delhi'  

Will look forward to meeting and interacting with many of you tomorrow & day after.