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
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 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.
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:
The problem areas
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.
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.
@SC Vashist : What is expected of Union Govt wrt to dopt letter on reservation in promotion in group A and B.
ReplyDeletesir, Whether the SC ruling in this regard has now become obsolete, if yes what is the use of fighting for one's rights, if govt can negate efforts in one stroke, that too with thumping chest as if they are all for disables in India.
What will be happened now ?
ReplyDeleteDisabled right bill 2016 is in favour of reservation in promotion or not ?
ReplyDeleteDepending on 3 months community are understood the act 2016 disable bill
Delete@Sandeep Goyal & @Direrendra - The New Act leaves the reservation in promotion issue to the whims of the appropriate government by segregating it from the main section where reservation is provided. However, whether the Govt. can water it down in the rules against the clear mandate of the earlier act/ clarification of the Hon'ble Supreme Court is a debatable and legally challengable proposition!
ReplyDeleteSir we need some guidance
DeleteAs we were appointed as forest gaurds in Maharashtra forest department on the basis of physical handicap qouta.
Some of our counter parts got promotion as foresters on the basis of handicap qouta in 2015/16.
On 23 march 2017 suddenly our cheif conservator of forest gaves order to reversion and made our empolyees forest gaurd again.
My friends have taken stay from Nagpur high court .on 25th march 2017 but our seniors our say that we have relieved u all on 23rd march so they are not taking back us on duty as foresters and telling us to join as forest gaurds
Let's wait for 3 months community decision
Deletesir, last week hon. Kerala High Court disposed of a petition of one Mr. Madhu, a last grade Servant directing TRAVANCORE DEWASWOM BOARD ALLOWING 3% RESERVATION in promotion also.
ReplyDeleteOne suggestion made as follows for Rules under PWD 2016
ReplyDeleteEnsuring Level Playing Field in Annual Performance Appraisals Reports in Govt dept CPSE/PSU:
As per the extant system of evaluation of APARs in Central Government, the performace is measured on a comparative basis and PWD and are treated equal with other 'able bodied' officers for measuring the performance against set targets.
The Outstanding Rating are given to only 20-25% officer on comparative competitive Level. As there is no attemp to equalize result with respect to various group, a LEVEL PLaYING FIELD is DENIED , leading to PWD officers being left behind in APAR thereby in career growth
Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute “equality of opportunity”.”
Suggestion : To ensure Level Playing Field, it is suggested that APAR evaluation should be made independent of other officer , who have no constraint in performance of their duties.
It is separate competition for PWD officers in APAR like we have separate Olympics for PWD
Ensuring Level Playing Field in Annual Performance Appraisals Reports in Govt dept/CPSE/PSU:
ReplyDeleteAs per the extant system of evaluation of APARs in Central Government, the performace is measured on a comparative basis and PWD and are treated equal with other 'able bodied' officers for measuring the performance against set targets.
The Outstanding Rating are given to only 20-25% officer on comparative competitive Level. As there is no attemp to equalize result with respect to various group, a LEVEL PLaYING FIELD is DENIED , leading to PWD officers being left behind in APAR thereby in career growth
Equality of opportunity has two different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action under which the State is obliged to provide a level-playing field to the oppressed classes. Affirmative action in the above sense seeks to move beyond the concept of non-discrimination towards equalizing results with respect to various groups. Both the conceptions constitute “equality of opportunity”.”
Suggestion : To ensure Level Playing Field, it is suggested that APAR evaluation should be made independent of other officer , who have no constraint in performance of their duties.
It is separate competition for PWD officers in APAR like we have separate Olympics for PWD
What is running now?
ReplyDeleteAny legal remedy sought in this aspect (Rule 09 of draft for rights of Person with disabilities rules 2017)
ReplyDelete@A Ramesh & @Padmanabhan - After the consultation with the Law Ministry, the draft Rules referred by you above have been drastically changed. The same have been issued for public comments again vide notification dated 10 March 2017. All debatable things have been removed and a minimum content of some 45 sections has been released as the Govt. wants to release the first set of rules by 14th April 2017 without much fuss to issue enforcement notification for the new Act 2016 and repeal the old Act of 1995.
ReplyDelete@ SC Vasisht Sir, As I understand now the DOPT would be required to issue instruction regarding reservation in Promotion in center govt/PSU if they so desire.
ReplyDeleteI appear logical that rules under PWD 2016 , donot mention reservation in promotion as they could not have overrided the PWD 2016. It is left to the governments, respectively Central and State. Had it been included in the rules it would have become mandatory for State as well as Central government.
@SarvarKhan - If the court has allowed a stay on the action of the respondent dt. 23rd March 17, then the respondent can not refuse to allow you on duty. You should move an application before the court.
ReplyDeleteThe confusion perhaps is also because of the notification of new Act in which reservation in promotion has been altered against the spirit of Article 4 of UNCRPD. The Govt. has been challenging reservation in promotion in group A & B which has been referred to larger bench- that is yet to assemble - meanwhile some employers have also halted the promotional reservation gp C & D. This is against the spirit of the new Act as well as CRPD.
Sir can u plz guide me or any information or court order or any government resolution regarding promotion of forest gaurd to forester on the basis of handicap qouta .plz guide us sir thanx
ReplyDelete@A.Ramesh - PIL at this juncture will be pre-mature. As I said the issue of promotion in group A & B has been referred to larger bench- that is yet to assemble. Lets wait for the bench to assemble to take a call. But one thing is sure - nothing against the spirit of CRPD will stand the judicial scrutiny. The Govt. can't take way from the mandate of Act of 1995 in the name of enacting a new law to implement CRPD. The new law could only add to the existing benefits and not take away existing benefits available under the law.
ReplyDeleteSir, what is the provision for promotion from Group C to Group B post in this Act.
DeleteSickle cell disease added to Rpwd act 2016 but there is no guidelines .
ReplyDeleteAccording to the RPWD 2016 provides reservation in promotion to the Physically handicapped person.please suggest me sir.
ReplyDeleteIt should be reservation in promotion
ReplyDelete@Subhash Sir,what is expected date of hearing of the case
ReplyDeleteWhen will larger bench sit to give us our legitimate rights already more than 2years passed.
ReplyDeleteIn my organisation ofb promotion of jwm to jwm se and AWM no one ph candidate was considered even I asked from rti act my organisation not maintain reservations roster register.
Sapan kumar
JWM/OFC
REGARD
What is the current status
ReplyDelete