Showing posts with label 3% reservation for disabled. Show all posts
Showing posts with label 3% reservation for disabled. Show all posts

Friday, October 10, 2014

SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well

Dear Colleagues,
The observations of a 3 member bench comprising Hon'ble Chief Justice R.M Lodha,  Mr. Justice Kurian Joseph and Mr. Justice Rohinton Fali Nariman on 12 September 2014 while hearing a fresh appeal titled Union of India and Others Versus National Confederation for Development of Disabled and Anr speak volumes about the attitude of the bureaucracy towards implementing reservation in jobs for persons with disabilities. The matter was widely reported in media. Appended towards the end of the posts are the two major coverage by PTI and Indian Express on the subject for your ready information.

I have been receiving several requests from several Government officials including State Commissioners for Persons with Disabilities, Stakeholders and friends in the NGOs to write a brief on the judgement, hence this post. 

For some strange reasons, the bench though dismissed this appeal arising out of a Bombay High Court judgement dated 04 Dec 2013 in PIL No. 106/2010, but did not record their reasons for dismissing the appeal perhaps to save the Union Government from further embarrassment. What appeared in the media was thus obiter dicta. i.e. what the Hon'ble Chief Justice commented during the hearing in the court. This did not come in the formal written order. For benefit of readers, you may see the Order dated 12.09.14 by clicking here (Word Format /  PDF Format)

In the instant case at Bombay High Court, the  petitioners National Confederation for Development of Disabled had prayed for writ of mandamus to direct the respondents to appoint the disabled persons in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) in Indian Administrative Services posts to be filled up either by promotion from the State Civil Services or by selection from persons who hold gazetted posts in connection with the affairs of a state but are not members of the State Civil Services, as per their entitlement retrospectively from 1996 and to comply with the said provisions hereafter.

In this regard please refer to my earlier blog entry titled Physically challenged versus Logically Challenged dated  10 Dec 2013 wherein I had also posted the Judgement for ready reference. The same can be accessed by clicking link below:

Judgement of Mumbai High Court in PIL 106/2010 titled National Confederation for Development of Disabled and Anr Versus Union of India and Ors. (PDF file that will open in a new window). Also available on High Court website.

Thus in nutshell, the Hon'ble Supreme Court has upheld the above Judgement of the Bombay High Court meaning thereby that the reservation provisions of Section 33 will extend to all appointments in all groups i.e. A,B,C and D and appointment is not restricted to direct recruitment only. It would also include promotion, deputation etc. 

I had in my research work carried out in 2008-09 for HRLN  which later became a part of a book titled "Harmonizing Indian Domestic Laws with UNCRPD"  I had indicated that the reservation for persons with disabilities is to extend to all form of appointments however, the babus of the DoPT and MSJE continue to force upon the limited interpretation of the provisions. I am glad that the Hon'ble court subsequently upheld it in this above matter. I hope this broad interpretation - the will of the legislature while enacting the disabilities Act 1995  - will be preserved in the new draft Disabilities Act as well.

Subhash Chandra Vashishth

News Coverage

SC clears 3% reservation for disabled in jobs, promotions  (Indian Express)

Written by Utkarsh Anand | New Delhi | Posted: September 12, 2014 5:44 pm | Updated: September 12, 2014 9:59 pm

The Supreme Court on Friday ruled in favour of three per cent reservation for differently-abled candidates in civil services, not only at the stage of their  appointments but also for departmental promotions.

Giving a level-playing field to more than four crore people with disabilities in India, the apex court held that the Centre, states and Union Territories were obligated to implement the rules of reservation for this class in the matters of appointment, selection, direct recruitment, deputation and also for promotions. It asked the Centre to show a big heart and give the differently-abled people their due in all central and state government jobs.

A bench led by Chief Justice of India R M Lodha reiterated its earlier verdict that the principle of not exceeding 50 per cent reservation would not be applicable while granting quota for differently-abled people.

The bench expressed its displeasure at the government seeking to adopt a hyper-technical approach, as its counsel pressed that three per cent reservation could be given only at the stage of appointment but not for promotion. The Persons With Disabilities Act provides for three per cent quota for the differently-abled people.

“Appointment will include promotion. You are frustrating the very reservation policy for the disabled — the class for which this beneficial piece of legislation was enacted, by arguing against it,” the bench, also comprising Justices Kurian Joseph and Rohinton F Nariman, told Additional Solicitor General Pinky Anand.
Anand sought to point out that the reservation at the stage of promotion may lead to huge resentment, especially among employees in Group A and Group B categories, since many beneficiaries may get ahead of their seniors.

She was placing an appeal against the Bombay High Court order, directing the government to implement three per cent reservation for the differently-abled in civil services recruitment, besides granting the benefit in the matter of promotion too. This order was issued on a PIL filed by the National Confederation for Development of Disabled, which was represented by senior advocate R S Suri and Arpit Bhargava in the apex court.

The bench, however, told the Additional Solicitor General that the objective of the reservation policy, as envisaged by Parliament, was unequivocal that the differently-abled people must get the benefits without technical impediments.

“Once Parliament prescribes for reservation in appointments, it will cover direct recruitment, promotion and even deputation. Our experience tells us that it is one legislation that has never been effectively implemented. In any case, it is a beneficial legislation and you should interpret in a manner so that they get the benefits,” said the bench.

At this, the Additional Solicitor General agreed with the bench and conceded not to press the appeal any further. The court then dismissed the appeal. The three per cent reservation, as clarified by the apex court in its last year’s judgment, is to the extent of one per cent each for the blind, hearing and speech impaired, and persons suffering from locomotor disability or cerebral palsy. The Supreme Court had in October last ruled in favour of a minimum three per cent reservation for them in all central and state government jobs. Regretting the denial of opportunities to the differently-abled people in the country, the court had quashed the Centre’s 2005 office memorandum and the government’s claim that the reservation policy not only had to be different for Group A, B C and D posts but the quota had to confine to “identified” posts. 

Source: Indian Express

3% quota must for disabled people in all govt jobs including IAS: Supreme Court
PTI | Sep 12, 2014, 06.17PM IST

NEW DELHI: The Supreme Court on Friday held that three per cent reservation for disabled people be given in all categories of government jobs including in appointments and promotions to IAS, while pulling up the Centre for "blocking" the very purpose of this empowering legislation by opposing it.

A bench headed by Chief Justice R M Lodha said that people with disabilities have not got their due in the last 19 years despite the framing of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which was passed in 1995.

Additional solicitor general Pinky Anand, appearing for the Centre, contended that reservation cannot be given in case of promotion to Group A and Group B officers category as it is not a case of appointment. The bench, however, observed that appointment is a broader concept and the Centre is giving a narrow interpretation of it.

"You are frustrating the very reservation policy and cause of class for which Parliament passed the law," the bench said.

"For the last 19 years it is not being implemented and the class, for which the legislation was made, had not got benefited as it should have," the bench said.

The court dismissed the petition of the Centre challenging an order of Bombay high court which had directed the Centre and the Union Public Service Commission to implement 3 per cent quota in direct recruitment and promotions for the disabled in the IAS.

Source: Times of India 

Friday, March 28, 2014

Not providing reservation for disabled in Higher Judicial Service amounts to Discrimination - rules Delhi HC

A Division bench of Delhi High Court presided by Justice S. Ravindra Bhat and Justice R.V. Easwar observed that arbitrary denial of 3% reservation for persons with disabilities in terms of The Persons with Disabilities Act 1995,  would amount to discrimination.

Writing judgement in this case titled Nishant S. Diwan Versus High Court of Delhi, W.P.(C) 983/2014 on 25th March 2014, the bench observed that the Disabilities Act made it mandatory for all government organisations to reserve at least 3 per cent vacancies for the disabled and that the decision of the High Court administration to not include the disability quota in the upcoming direct recruitment process for the Delhi Higher Judicial Services was “arbitrary and discriminatory”.

The bench also struck down the argument that a five-judge committee on 09.03.2007, made no recommendation in respect of DHJS while making recommendation about the DJS (comprising of civil judges and magistrates only) saying that the Committee had considered the proposal in the background of whether to provide for reservations in DJS and there was no explicit reference to DHJS.

Click here to access the Supreme Court Judgement in Civil Apeal No. 9096/2013 (Arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr  Versus National Federation of Blind and others.

The court has also directed the establishment to carry out a review of the remaining number of vacancies in the DHJS that can be “appropriately earmarked for those with disabilities according to the total number of sanctioned posts”, following which it could recruit the appropriate number of persons in the next round of recruitment.

The court has directed the administration to carry out a “special recruitment procedure” for only the earmarked vacancies falling to the share of those entitled to be considered under the 3 per cent quota under the Disabilities Act, within a year of the date of declaration of results in the current recruitment process.

DHJS refers to appellate courts, which exercise appellate authority over the lowest level of judiciary. Direct recruitment to DHJS is done through an examination held by the High Court Establishment (HCE).

The HCE had issued an advertisement for recruitment to 14 posts in December last year, setting aside four seats for SC/ST candidates and 10 for general category. The examination for these seats is scheduled to be held on April 6.

The order was given on a plea filed by an advocate who is a person with locomotor disability, who had alleged that non-inclusion of disability quota in the DHJS recruitment was “contrary to the express provisions of the Disabilities Act”.

Advocate Nishant S Diwan, who has been practicing as an advocate since 1998, had also argued that the HCE was “under a duty to set-apart appropriate number of posts having regard to the total cadre strength of 224 posts in DHJS”.

The HCE had taken the decision that the disability quota would not apply to the DHJS recruitments and would only apply to the magistrates and civil Judges, since the notification issued by the Ministry of Social Justice and Empowerment had mentioned only “magistrates of the subordinate judiciary”. The HCE had also taken the plea that since the examination was scheduled for April 6, imposition of any quota at this late stage would “upset the entire timeline and delay the recruitment process”.

The court held that “there can be no difference for reservation under the Disabilities Act” between the DJS and the DHJS since the DHJS officers perform duties and functions similar to those in DJS.

The court directed the administration to set aside one of the 14 posts for persons eligible under the disability quota, but has directed that the seat should be kept vacant and should be clubbed with the next round of recruitment.

Since as per the Supreme Court judgement in UOI Versus National Federation of Blind, it is clarified that the section 33 is independent of Section 32 for making reservation, the Hon'ble Court should have also passed directions to calculate the backlog of the total vacancies since 01 Jan 1996 and not reserving one seat in the present recruitment process.

Also the list of identified posts makes a mention that posts with different nomenclature but with similar functions out to be reserved. Also since posts of DHJS are also promotional posts for the lower judiciary, these can not remain beyond the purview of reservation  in both direct recruitment as well as promotional reservation envisaged by the judgement of the Hon'ble Supreme Court ibid.

Download the Judgements:

Wednesday, February 12, 2014

Failure to implement Disabilities Act makes Madras High Court initiates Contempt Proceedings against Chief Secretary


Here is a news coming from Madras High Court. Though the notices of the contempt have been delayed at the request of Advocate General but it indicates the seriousness with which the Court is looking at the continued defiance.

Times of India and The Hindu have covered the stories as below. More soon....

Times of India

A Subramani,TNN | Feb 11, 2014, 01.06 PM IST

CHENNAI: Lambasting top bureaucrats of Tamil Nadu for their failure to furnish data relating to backlog of vacancies for disabled persons in various government departments, the Madras high court has initiated contempt of court proceedings against chief secretary Sheela Balakrishnan and two other officers.

According to the statute, there shall be reservation of 3% of all available vacancies for disabled persons. While the court had passed necessary orders nearly two years ago, the issue gained importance after last month's Supreme Court ruling directing all state governments to set apart 3% of all available vacancies for disabled persons.

Justice S Manikumar, pointing out that at least 23 government departments have not furnished required details of backlog vacancies despite several adjournments and directives, said: "Though repeatedly, this court has issued orders to identify the posts in 'A', 'B', 'C' and 'D' categories and consequently, to fill up the posts as expeditiously as possible, the process is on and on and from the materials produced before this court, out of 34 secretarial heads, 140 Heads of Departments, 102 government undertakings, including universities and 54 companies owned and controlled by the government, only 70 HoDs have furnished the details of 'A', 'B', 'C' and 'D' categories."

"So far, 50 out of 102 government undertakings and boards, etc., have furnished the details. No clear details have been furnished by about the 54 companies owned and controlled by the government," Justice Manikumar said.

He then said: "This court is constrained to issue contempt notices to Sheela Balakrishnan, chief secretary of Tamil Nadu and head of Monitoring Committee for Differently Abled, P Sivasankaran, secretary of Welfare of Differently Abled department and Manivasan, commissioner for the differently abled, to explain as to why further course of action should not be taken under the Contempt of Courts Act. Registry is directed to issue necessary statutory notices to the above said persons."

However, after advocate-general A L Somayaji requested the court to postpone the issuance of the statutory notice, which would require the personal appearance of the officers concerned, the judge said the officers could make necessary applications if they complied with directions of the high court and the Supreme Court.

The Hindu

CHENNAI, February 12, 2014


Observing that the differently-abled have been taken for a ride by the State government, the Madras High Court has ordered issue of contempt notices to three top officials, including the Chief Secretary, for violating the orders of the High Court and the Supreme Court in the matter of filling up vacancies in ‘A’, ‘B’, ‘C’ and ‘D’ categories by differently-abled persons.

Besides the Chief Secretary, Sheela Balakrishnan, notices were ordered to be issued against the Secretary, Welfare of Differently-Abled Persons Department, P.Sivasankaran and the State Commissioner for the Differently-Abled, Manivasan.

Following the Advocate-General, A.L.Somayaji’s request to postpone the issue of the notice, Justice S.Manikumar ordered that if the officials concerned comply with the Court directions in letter and spirit, they could file necessary applications.

Passing an interim order on three writ petitions filed in 2004, the Judge said the Court had, in April 2012, directed the authorities to identify ‘A’ and ‘B’ posts in government departments, boards, public sector undertakings, corporations, companies owned by the government and educational institutions. Subsequently, the government had issued a G.O. on January 29 last year directing the establishments to identify the posts and to implement the three per cent reservation for the differently-abled.

Mr. Justice Manikumar said no details had been furnished, as to whether the Secretaries had implemented the instructions given.

Though repeatedly the Court issued orders to identify the posts under the four categories and fill up the posts as expeditiously as possible, the process was getting delayed.

Only 50 out of the 102 government undertakings, boards, etc., had furnished the details. No clear details had been furnished about 54 government-owned companies. He said the authorities were seeking adjournments time and again.

During the last hearing, the State Commissioner for the Differently-Abled filed an affidavit taking a different stand altogether and submitted that the whole process should be reworked considering the Tamil Nadu Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules.

Wednesday, September 25, 2013

Visually Impaired Civil Service aspirants await appointments

The focus of the write-up by Mr. Subhash Ghatage ( is the plight of four candidates – all of them visually challenged – who had cleared the UPSC (Union Public Service Commission) examinations way back in 2008, scored more marks than many ‘normal’ students and were still waiting for appointment letters. The Commission as everybody knows is India’s central agency authorised to conduct civil services and other important examinations.

The caller said that he was one among the four and shared with me the long struggle he along with others were engaged in to get their due. Apathy exhibited by people in the higher echelons of the Commission as far as visually challenged persons are concerned is really disturbing. And it was not for the first time that it had failed to give appointment letters to such candidates. Merely three years back Ravi Prakash Gupta had to approach the highest courts of the country namely the Supreme Court to get his appointment letter. Last February it was the Prime Minister’s Office  which had to intervene so that seven candidates from similar category could join their duty.

A recap of the appointments done between the period 1996 to 2008 tells us that only 15 visually challenged candidates have been recommended by UPSC, while almost 6900 vacancies were filled during this period. Among 15, 12 candidates have been recommended or upgraded after court orders.

While officially nothing is said about the inordinate delay by the commission in this particular case, it is evident in their action that candidates from this category are unwelcome. In fact, there seems to be a deliberate attempt to restrict the entry of such candidates, at times even by, glossing over the provisions of the Persons with Disabilities Act, 1995. e.g. A petition by the caller ( Mr Pankaj Srivastava) tells us how in the year 2008

‘[t]otal 891 candidates were declared succesful but only four candidates from visualy challenged category were recommended by the commission, whereas it should be 9 according to the PWD act 1995.’

Despite the fact that Central Administrative Tribunal (CAT) gave a favourable decision, the Commission is still engaged in delaying tactics. It even refused to calculate the backlog according to the necessary provisions of the act since 1996 when the Tribunal specifically asked it to do so. As a report in a leading national daily tells us (Times of India, 16 th Sep 2013) “

Between the four of them, they have filed two applications and one contempt petition against their non-appointment in the Central Administrative Tribunal. The tribunal ruled in their favour each time. There is a High Court stay order on one CAT order of May 2012 directing the authorities to appoint the four candidates, which is to be heard on September 24.”

It was late 70 s when Frank Bowe, a disability rights activist from US had written a monograph ‘Handicapping America’ (1978) in which he tried to explain how the key issue in any debate around disability is the societal response to it. For Bowe, the main point was not the status of physical or mental impairment of a particular person, but the way society develops strategies to cope with it.

One does not know when the obdurate bureaucracy at the Commission would become more aware and sensitive to the fact that there is a sea change in the perception about disability now. If earlier dominant trend in the disability discourse revolved around adoption of ‘social welfare measures’ and the world was bit far away from taking it up as a ‘human rights issue’with the adoption of an international convention in 2006 welfare and charity have been replaced by new rights and freedoms and there is growing recognition that a change of attitude is vital if disabled people are to achieve equal status.

We are told that the commission annually submits a report of its work to the President of India which is also sent to each house of the Parliament for discussion. One just expects that honourable members of the parliament – who have enough lung power left to point out acts of omission and commission on part of the government or the treasury benches ever contemplating strategies to strike back, would at least find time to go through the reports and see for oneself the great hiatus which exists between rosy picture about disability welfare which is presented through the ‘official’ reports and the actual situation on the ground.

.......continue to read from source: No country for Visually Challenged by Subhash Ghatade

Monday, August 19, 2013

SC directs the Govt. to give suitable jobs to employees with Mental Illness

Dear Colleagues,

In a path-breaking development, the Supreme Court while quoting Section 47 has set aside the Order of Compulsory retirement of the 1977 batch IAS officer and directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Though, the Supreme Court has done some justice with the case, but it is loo late and too less. The said has been suffering at the hands of whimsical department who not only suffered at the hands of inquiry committee instituted in 1993 that took 11 years to give its finding declaring him insane. The officer was compulsorily retired thereafter.

There are various candidates who, having lived with mental illness and rehabilitated after a regular course of medication are not given any benefit of reservation or of preference in appointment in the civil services or any other service under the government. The draft of new Act though includes mental illness as one of the condition eligible for reservation in jobs under the disability quota however, one never know how long will this process take for the law to take shape and extend benefits to those living with disabilities not included in the existing Act. The act itself is discriminatory towards many other conditions since it is based on a medical model and goes strictly by the medical conditions, hence in effect renders many others excluded though equally or more marginalized and disabled.

Here is the news coverage from Hindustan Times.

Bhadra Sinha, Hindustan Times  New Delhi, August 19, 2013

State administration cannot dispense with ore reduce rank of a government servant if he or she acquires disability including mental illness or retardation during service, the Supreme Court has ruled.

Quoting the provisions of The Persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 a bench of Justice GS Singhvi and Justice SJ Mukopadhyaya held that if a person is found unsuitable for the post he or she holds on account of acquired disability during service, he or she should be moved to another post suitable to his or her state.

The bench further held that under section 47 of the Act if it wasn't possible to adjust such a person against any post, the government authority ought to keep him or her on a supernumerary post until a suitable one is available until the employee attains the age of superannuation.

With these observations the court recently directed the Union Ministry of Department of Personnel and Training (DoPT) to pay consequential benefits to a 1977 batch IAS officer, Anil Kumar Mahajan, who was compulsorily retired from service on October 15 2007 after a disciplinary inquiry declared him insane. The inquiry report came 11 years after it was instituted in 1993 when he worked with the Bihar government.

At the time of inquiry the officer was placed under suspension twice. His representation for a voluntary retirement was turned down by the DoPT on the ground he hadn't completed the minimum service of 20 years. Later, however, the ministry compulsorily retired him.

Mahajan later challenged the findings of the disciplinary proceedings before the Central Administrative Tribunal, which turned down his plea.

However, on his appeal the SC set aside the order of compulsory retirement and said: "The appellant was appointed in the service of respondents as an IAS officer and joined in the year 1977. He served for 30 years till the order of his compulsory retirement was issued on October 15, 2007. It is not the case of the respondents (DoPT) that the appellant was insane and in spite of that he was appointed as an IAS Officer in 1977."

Observing "some problem was going on between the appellant and authorities of the state (Bihar)," the court said: "In view of the aforesaid finding, we are of the view that it was not open to the authorities to dispense with the service of  appellant or to compulsory retire him from service."

The court further said: "The High Court also failed to notice the relevant fact and without going into the merit allowed the counsel to withdraw the writ petition merely on the basis of the finding of Inquiry Officer."

Since in normal course Mahajan would have retired from service on July 31, 2012, the SC directed DoPT to pay him the full salary, except the subsistence allowance already received, for the period from the date of initiation of departmental proceeding till his date of superannuation.

Monday, August 5, 2013

Delhi HC questions MSJE why disabled can't function as surgeon

Court questions 3% reservation for differently-abled MBBS degree holders

Sunday, Jul 28, 2013, 12:59 IST | Place: Delhi | Agency: DNA

Ayesha Arvind

The Delhi High Court has questioned the 3% reservation for differently-abled persons holding MBBS degree only in non-surgical posts. While hearing a plea pertaining to such an appointment, the Court asked, "Does the Centre feel that differently-abled persons with valid MBBS degrees are unfit to perform their duties as doctors in surgical procedures?" The Court has sought a clarification from the ministry of social justice and empowerment in this regard.

A bench of Justices Pradip Nandrajog and V Kameswar Rao has also directed the chief commissioner for persons with disabilities to appear in the Court on Monday. The Court order follows a plea in which an ENT surgeon has challenged the appointment of an orthopedically-handicapped (OPH) candidate for the same post in AIIMS for which he too had applied.

The surgeon, Dilip Samal, had applied for the post of senior resident/demonstrator at AIIMS in July last year under the OBC category. He challenged the appointment of an OPH candidate after his RTI query revealed that the selected candidate had scored less than the qualifying marks in written test. Samal was later informed by the AIIMS authorities that as per procedure those who qualify under the OPH category are adjusted in the respective category, irrespective of the marks and merits in the entrance exam.

Samal then approached the Central Administrative Tribunal (CAT) for relief. In January this year, the CAT had set aside the selection of the OPH candidate Mohammad Mubashshirul Haq. It had ruled that the AIIMS had not notified any relaxed standards of suitability for the OPH candidates while inviting applications or any time thereafter. AIIMS, in turn, challenged CAT’s ruling before the High Court.

The Court took note of the fact that Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the DoPT guidelines mandate that authorities first identify posts to be reserved in medical facilities for persons with disabilities and specifically earmark them.

And that these seats cannot be adjusted with vacancies under other categories.

“Two issues arise out of the plea. The first being whether it is mandatory in law to identify seats reserved for differently-abled persons in medical specialities when applicants are invited from eligible candidates. The other issue which arises is a directive issued by the ministry of social justice and empowerment, government of India, requiring reservation in the medical field only in non-surgical posts,” the Court said.

“It is the second issue which troubles us more than the first. Prima facie, we find it strange that the ministry of social justice and empowerment would be of the opinion that differently-abled persons per se would be unfit to perform duties as a doctor in a discipline which requires surgical procedures to be performed,” it said.

Wednesday, May 16, 2012

Madrash High Court questions Commissioner Disability on unfilled backlogs and shoddy implementation of PWD Act

Dear Colleagues,

I am very pleased to inform you that Hon'ble Justice S. Manikumar of  Madras High Court has taken the State Government and even the Commissioner Disabilities to task for not implementing reservations in employment and not clearing the backlog in employment of Persons with Disabilities. Hon'ble Justice has further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

One wonderful intitiative on the part of the Hon'ble Justice! And mind you, almost all dailies today are singing about what Ms. Jaylalita's Government has done for the disabled, to name a few:

(a) 20 early intervention centres for Visually Impaired childrein in age group of 0-6 years in 20 districts at 2 crores rupees cost
(b) Age limit of 45 reduced to 18 years to avail pension.
(c) Free vocational training in all 32 districts benefiting 2400 disabled
(d) Cash awad to pursue high education to Hearing impaired students
(e) Monthly maintennace allowance from Rs. 500 to 1000 to severally disabled

 You will appreciate there is nothing about employment for the disabled and filling up the backlog vacancies reserved for them under the Persons with Disabilities Act 1995. The Government seems only wanted to keep the disabled alive on some paltry sum of pensions an some vocational training. The education grants of no use if the Government is not serious in including them in the employment which is evident from the records.

I welcome this step and congratulate the residents with disabilities of Tamilnadu to have such a progressive Justice in the High Court of Madras.

Here is the media coverage from the Hindu:

Court takes on the role of messiah


Thousands of physically challenged people awaiting government jobs could heave a sigh of relief now as the Madras High Court has taken upon itself the task of making every State Government department, undertaking, university and other such organisations follow the statutory reservation of 3 per cent in letter and spirit.

Passing interim orders in a batch of writ petitions, Justice S. Manikumar has directed the Commissioner for Differently Abled to submit in court by June 9 an exhaustive list of details including the backlog vacancies that need to be filled up in every government institution ever since the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in February 1996.

The judge also wanted the Commissioner to explain why the reservations for the physically challenged had not been implemented uniformly across all government controlled institutions even after 16 years since the Central enactment was passed.

He further sought for details of the action taken against institutions which had failed to employ physically challenged on one pretext or the other.

Expressing deep concern over this attitude of the government officials, the judge said: “If some vacancies meant for Scheduled Castes or Scheduled Tribes or Most Backward Classes are left unfilled, many organisations, associations and even political parties would raise their voice, protest and agitate. But it is not so in the case of the differently abled. May be because, they do not command such a position in politics.”

He pointed out that as of March 31, 2011, a whopping number of 98,295 physically challenged people were in the ‘live register' of Employment Exchanges awaiting their chance for a government job. But unfortunately, they have been denied of their statutory right despite many court orders including the one passed by the First Bench of the High Court in a public interest litigation petition on February 17, 2011.

Mr. Justice Manikumar pointed out that the State Government had taken 10 years, since the legislation was enacted, even to begin identifying the posts meant for the physically challenged in Group A and B categories in the State Civil Services. The work began only in 2005 though it should have been kick started in 1996 itself and reviewed at periodic intervals not exceeding three years.

Thereafter, a series of meetings were held by the Union Ministry of Social Welfare and details were called from heads of various departments and boards, corporations and companies owned and controlled by the government. But many of them evaded from submitting the details.

It was also found that certain universities and educational institutions, in particular, had not followed the reservation policy.

“Right to live with dignity is a human right. Many of the disabled in India live in poverty and without employment, though educationally qualified. Delayed implementation of the statute is a deprivation of their statutory and Constitutional rights… Let us not forget that even a differently abled person would earnestly believe and expect that the words spoken and written be honoured,” the judge said.

He concluded by quoting Hellen Keller who said: “Science may have found a cure for most evils; but it has found no remedy for the worst of them all — the apathy of human beings.”

Though the present batch of writ petitions related to approval of three teachers appointed in C.S.I. High School for the Deaf at Kottaram in Kanyakumari district, the judge went beyond the scope of the case in order to ensure strict implementation of the 1996 Act.

Source: The Hindu

Saturday, May 5, 2012

Karnataka HC orders 3 pc quota in PG for disabled doctors in pre-clinical, para-clinical and clinical courses

Bangalore, May 2 2012, DHNS:

The High Court of Karnataka on Wednesday directed the State government to complete the formalities regarding the seat matrix for the Postgraduate Common Entrance Test within three days.

Justice Bhaktavatsala told the government to announce the seat matrix within three days and asked it to provide three per cent reservation to physically challenged doctors during counselling for allotment of seats to eligible candidates in various disciplines of the postgraduate medical courses of the Rajiv Gandhi University of Health Sciences, as per the guidelines issued by the Medical Council of India.

The court was hearing a petition by physically challenged doctors - Veeresh Hallur and Mahajid Pasha - demanding three per cent reservation in the allotment of seats.

The petitioners said that the government had come up with a separate seat matrix, reserving postgraduate medical seats for doctors with locomotor disability in the range of 50 per cent to 70 per cent. They said such a reservation in seat matrix was only to offer seats in least preferred courses. The petitioners sought directions from the court to the government to provide three per cent horizontal reservation to physically challenged doctors in the pre-clinical, para-clinical and clinical courses.

Source: Deccan Herald

Wednesday, May 2, 2012

High Court rejects the contention that persons with 70% disability only eligible for reservation

The Hindu,  MADURAI, May 2, 2012

Rejects contention that those suffering from over 70 per cent of disability alone were eligible for reservation

The Madras High Court Bench here has disagreed with the contention of the Director of Teacher Education, Research and Training that only those suffering from more than 70 per cent of disability were eligible to claim three per cent reservation meant for the physically challenged in gaining admission into teacher training institutes.

Allowing a writ petition filed by P. Senthil Murugan, a candidate who suffered from orthopaedic disability assessed to be 40 per cent, Justice D. Hariparanthaman wondered how the Director could insist on 70 per cent disability when the officer was not able to substantiate his claim either through a statutory prescription or a government order passed to that effect.

The judge pointed out that Section 2 (t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, described a ‘person with disability' as the one who was suffering from not less than 40 per cent of any kind of disability (including blindness, low vision, leprosy-cured, hearing impairment, loco motor disability, mental retardation and mental illness) as certified by a medical authority.

Further Section 33 of the Act makes it mandatory for the government to reserve not less than three per cent of vacancies under the physically challenged quota. Of the three per cent, one must be reserved for those suffering from blindness or low vision, one for those suffering from hearing impairment, and the third for those suffering from loco motor disability or cerebral palsy.

Therefore, there was no justification in denying admission to the petitioner in the teacher training institute on the ground that he did not suffer 70 per cent disability, the judge said. He also rejected yet another contention raised by the Director that Mr. Senthil Murugan had secured only 44 per cent of marks in the qualifying examinations as against the minimum requirement of 45 per cent.

Mr. Justice Hariparanthaman pointed out that the government in May, 2010, had granted exemption to two physically challenged students who had secured only 41.33 per cent and 44.75 per cent marks in the qualifying examinations. A similar benefit could be given to the present petitioner too, he said and ordered the DTE to approve the petitioner's admission.

The petitioner had initially filed a writ petition in 2005 seeking relaxation of the minimum requirement of 45 per cent marks. That petition was disposed of with a direction to the government to consider his plea. Thereafter, he filed another writ in 2009 with a similar plea and the court passed a similar order once again along with a rider that his plea must be considered within four weeks.

After this, he gained admission in a private teacher training institute at Kalayarkoil in Sivaganga district. But the DTE refused to approve his admission and hence the present writ petition. He had also written the semester examinations on the basis of interim directions issued by the court from time to time in the present case.

Keywords: physically challenged student

Thursday, March 22, 2012

Himachal Pradesh High Court directs the State to find ways to provide equal opportunities for disabled in civil services

Dear Colleagues,

This petition by Mr. Shyam Singh, a disabled school teacher from Himachal Pradesh brings out the systemic inadequacies, which I am sure exists in all states, in providing equitable opportunities to persons with disabilities in their recruitment to the civil posts in the States. only 25% of the total Class- I category posts have been filled that are reserved for persons with disabilities in terms of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act- 1995.  This also indicates that no steps have been taken by the State to fill up the backlog by taking measures suggested in the DoPT Guidelines dated 29 Dec 2005 on effecting the reservation of posts for persons with disabilities.

Such an exercise in needed in most states as we continue to face situations where lack of enabling environment do not allow persons with disabilities to compete with their non-disabled counterparts. Also the state recruitment agencies, public service commissions have not thought of organizing coaching classes for preparing the students for the competitive examinations as is being done to improve representation in civil service of persons from marginalized communities such as scheduled castes / scheduled tribes. NGOs working with persons with disabilities or the self-help groups /DPOs must take up similar initiatives to create a demand for such a need of training and lowering  the selection criteria for persons with disabilities who have been suffering exclusion due to inaccessibility of educational systems as well as attitudinal barriers of the community in reaching their full potential.

Here is the news coverage from Indian Express

Alarmed that only 25 per cent of the posts reserved for the physically-challenged in Class-I category government jobs have been filled up owing to non-availability and non-suitability of candidates, the Himachal High Court on Wednesday directed the state government and Public Service Commission to work on alternatives to provide equal opportunities to the disabled.

A division bench comprising Chief Justice Kurian Joseph and Justice Dharam Chand Chaudhary said the existing mode of selection was not in a position to ensure equal opportunity to the physically-challenged. “In terms of the objectives of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act-1995, we are of the view that it is high time that the state thinks of alternate methods of selection. It should also be thought of as whether such selection should be continued with the HP Public Service Commission.

The court passed the order while disposing off an appeal filed by Shyam Singh — a physically-challenged person who works as a school teacher in Darlaghat. The petitioner, who had appeared for Public Service Commission exam under three per cent reservation, was not selected because he “lacked merit”.

“Even in selection in respect of the reserved quota, there cannot be any compromise on standard of merit as prescribed by the appointing authority. Of course, it is certainly open to the appointing authority to prescribe lesser standard, in respect of the reserved categories to achieve the objects of such reservation,” the court said

Wednesday, March 7, 2012

DHC | All India Confederation Of The Blind Vs Union of India (Min. of Railways) | WP (C) 23132 of 2005 | 07 Mar 2012 [Judgement]

W.P.(C) No.23132 of 2005
Reserved on: 16th January, 2012. 
Pronounced on: 7th March, 2012.



A.K. SIKRI, Acting Chief Justice

1.    The respondent/Railways had issued an advertisement/ Employment Notice No. 1 of 2005   for recruitment of Group "D‟ staff in the Northern Railway.  As many as nine categories of posts of Group B staff were mentioned indicating total posts against each category. Bifurcation of these posts were also given, viz., number of posts which were General Category and those in Scheduled Castes, Scheduled Tribes, Other Backward Classes and ESM categories. The petitioner felt dismayed by reading this advertisement as it did not provide any reservation for Physically Handicapped persons (PH persons for brevity) though the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1955 (hereinafter referred to as ‟the Disabilities Act‟) mandates that 3% reservation is to be given to those persons suffering from disability as defined in Section 2(d) of the Disabilities Act. This prompted the petitioner to file the instant petition, in the nature of Public Interest Litigation questioning the non-provision of reservation to the PH persons.

2. The instant petition is filed by Shri M.K. Rastogi, Chairperson, Advocacy & Employment Committee of the petitioner organization of disabled persons. A copy of his attorney is placed as Annexure P-1. The respondent/Department, viz., Railway Recruitment Cell, Northern Railway has issued an advertisement Employment Notice No.1/2005 to fill up thousands of Group "D‟ posts in the Employment News (29 October-04, November, 2005). Disabilities Act is a remarkable piece of legislation for its main aim is to provide for and ensure equal opportunity, protection of rights and full participation of disabled persons in every walk of life. As per Section 33 of the Disabilities Act, the respondent is bound to reserve seats for the PH persons to the extent of 3% out of which 1% each must be reserved for the Locomotor (Orthopedically handicapped), hearing impaired and visually handicapped candidates. It is pointed out that authority the Group "D" posts advertised in the impugned employment notification have also been identified suitable to be held by disabled persons. In this connection, an Expert Committee appointed by the Ministry of Social Justice and Empowerment (hereinafter referred to as "the appropriate Government") had dealt with the matter of identification of posts in Groups - A, B, C and D for reservation. The said Committee in its report notified by the appropriate Government vide their Notification dated 31.5.2001 made the following recommendations:
"(b) The nomenclature used for respective jobs in these recommendations shall also mean and include any nomenclature used for the comparable post with identical function of the identified post. 
(c) The establishments covered under the persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Sec. 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Govt. the establishment under Sec. 33 of PWD Act 1995 can approach the inter departmental committee constituted for the purpose to look in to the matter regarding exemption from Sec. 33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for person with disabilities. 
(d) List of the identified jobs proposed to be notified hereinunder is in addition to an not in derogation of the earlier list published by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, Govt. of India in the year, 1986. This is in accordance with Section 72 of the Persons with Disabilities Act, 1995."
3. It is further specifically stated by the petitioner that the respondent has not obtained any exemption in respect of the said advertised posts for excluding the same from the provisions of reservation to the disabled persons and therefore, 3% posts should have been reserved. Cognizance of this petition was taken by issuing notice on 07.12.2005. On 07.2.2006, an interim order was also made to the effect that the corrigendum to the aforesaid advertisement be issued for the post which are to be filled on account of 3% reservation for the PH persons pursuant to the applicability of Disability Act to all such posts which have been identified by the respondent for which examination is to be held on 12.2.2006, 26.2.2006 and 05.3.2006. Once examination was scheduled on 12.2.2006 and since it was a too near date when the order was passed on 07.2.2006, issuance of corrigendum for this examination was spared. Thereafter, various orders have been passed from time to time impressing upon the respondents to provide 3% reservation for PH persons in the post which are to be filled up by taking into consideration the backlog as well as in the past, no such reservation was made. We would like to reproduce the order dated 10.3.2008:
"2. By an order dated 7th February, 2006, the respondents were directed to issue a corrigendum to the effect that the posts to be filled up shall have a reservation of 3% for physically handicapped candidates. The Railway Board was also directed to inform the Zonal Railways as to which posts fall within the reserved categories for such candidates. The matter was thereafter adjourned from time to time on one ground or the other till 7th November, 2007 when this Court noted the submission made on behalf of the respondent that Ministry of Railways was in the process of identifying suitable posts for the railways for physically handicapped persons. Learned counsel for the respondent was directed to place on record, within 4 weeks, further developments in the matter. Ms. Mohan today submits that she had received from the respondent a letter together with a list of jobs/posts identified in Gr.-C and Gr.-D categories for persons with disabilities. She seeks and is granted permission to place the same on record. A copy of the same has been given to counsel opposite, who argues that even when posts may have been identified for handicapped candidates against which such candidate can claim reservation, yet the benefit of such reservation is not being given to them. He drew our attention to an advertisement notice dated 29th April, 2006 according to which several posts have been advertised for being filled up but the advertisement does not made any provision for reservation for the benefit of the handicapped candidates. He submits that similar other advertisements are being issued all over the country in total disregard of the obligation created by the provisions of the Act. When asked whether the respondents have appointed any handicapped candidate against the reserved quota meant for them and, if so, when and against which cadre, Ms. Mohan was not in a position to provide any satisfactory answer without instructions. She sought 6 weeks time to do the needful. 
3. In the circumstances, therefore, we deem it just and proper to direct that the requisite information in relation to the posts which have been identified by the Government/ Railways for the grant of benefit of reservation to the handicapped candidates and the actual recruitment of handicapped candidates against the quota meant for them shall be furnished by the respondent within 6 weeks from today to the Registrar (Rules) of this Court who shall collate the said information and submit a report after proper consideration whether there is any default in the discharge of the obligation by the Railways/Government and if so the shortfall in the recruitments to be made against the handicapped category. The parties shall, in this regard, appear before the Registrar (Rules) on 13th May, 2008."

4. Thereafter, the information was sought by the Registrar of this Court from time to time. On that basis, Registrar (Vigilance) submitted its report on 06.1.2009. After this report was considered, this Court passed the orders dated 20.1.2009 and the salient features of this report are as under:
"(i) Since there is no direct recruitment to Group „B‟ posts, the provision of PWD Act would not apply to any post in the said category.
(ii) The calculation of posts to be treated as reserved for disabled categories has been worked out taking into account the cadre strength of all categories including "safety" category which is otherwise sought to be treated as exempt from reservation.
(iii) The joint report brings out the shortfall in the recruitment of disabled persons which is to the extent of 66 posts in Group „A‟ (from the year 1996 upto the year 2007) and 2377 & 1811 in Group "C" and Group "D" posts respectively (from the year 1996 upto 31.10.2008).
(iv) The information about Group „C‟ and Group „D‟ categories, as given in Table -I annexed to the joint report, shows that out of the 24 zones/Production Units of the Railways, as many as 11 have not been maintaining the Roster till date. However, there is an assurance held out by respondent/Railways vide heir affidavit dated 26.11.2008 that the Roster System would be adopted within the time indicated by each zone.
(v) The recruitment to Group „A‟ posts being through UPSC, the information on maintenance of roster separately given (in Annexure „A‟ to the affidavit of Mr. Iranius Tirki) shows that UPSC has been maintaining Roster System from the year 2006 onwards, for such category."
5. As per the above order, there was a shortfall of 66 posts in Group „A‟ , 2377 in Group „C‟ and 1811 in Group „D‟. The Court observed that in the case of National Confederation of Blinds Vs. Union of India & Others [W.P.(C) No.15828/2006] orders dated 19.2.2008 were passed directing the Union of India to constitute a Committee consisting of Chief Commissioner for Disabilities; Joint Secretary, Department of Personnel and Training; Secretary, Ministry of Social Justice and Empowerment and Joint Secretary, Staff Section Commission with direction to take steps for recruitment drive in respect of the vacancies for PH persons in Group A, C and D posts by special recruitment drive by organizing centralized recruitment against backlog so as to fill up the vacancies by utilizing at least 50% of the vacancies available and fill up the remaining vacancies by 31.12.2010. Taking note of that order, in this case on 20.1.2009, the Court directed for launching a special recruitment drive to fill up backlog of vacancies so as to fill up 50% of the available posts in the respective Zones/Production Units for this purpose alone. Though there was lukewarm response to this order and reluctance in compliance, with little arm twist (which became inevitable and justified), the respondents came around and started taking steps for filling up the backlog. The respondent also filed the affidavit stipulating the time schedule within which the special recruitment drive to fill up backlog PH persons was to be finalized. The fact remains that this schedule is not adhered to and therefore, one of the submission of the petitioner was that fresh schedule has to be laid down with direction to the respondent to strictly follow the same.

6. The respondent filed affidavit dated 06.7.2011 in which it is mentioned that several notifications to fill up vacancies by the Railways including current as well as backlog vacancies of PH persons have been issued. This affidavit refers to the advertisement in December, 2010 whereby 85068 vacancies are invited out of which 3700 have been reserved for PH persons. It is pointed out that this is in addition to 1058 Group „C‟ and 1367 erstwhile Group „D‟ vacancies already filled up by PH persons.

7. We may note that insofar as backlog of Group "D‟ is concerned, the steps have been taken to fill the same and therefore, filling up Group "D‟ posts does not pose any problem. The reluctance on the part of the respondent is in respect of filling up of 66 posts in Group "A‟ and those Group "C‟ posts which are technical in nature, viz., that of Civil, Electrical and Mechanical. The respondent/Railway is apprehensive of the post that PH persons may not be able to discharge the duties of these posts. It is, thus, stated in affidavit dated 06.7.2011 that the Ministry of Railways has approached the Ministry of Social Justice and Empowerment for grant of exemption from reservation for PH persons in certain posts under Section 33 of Disabilities Act keeping in view the arduous and technical nature of tasks involved in some of the posts in these categories. It is also submitted that even in number of such posts in these categories, the nature of exemption sought is only partial, i.e., for only one of the many sub-categories of disability identified by the appropriate Government. For time being, those posts are lying vacant, identifying the posts which can be meant for PH persons specifying the nature of disabilities as well. It is an admitted case that such an identification has been carried out. It is also an admitted fact that the Railways had approached the appropriate Government for exemption under Section 33 of the Disabilities Act, which was specifically refused.

8. In this backdrop, the question that arises for consideration is as to whether the Railways can stay hands and would not take steps for filling up the posts merely because it has approached the appropriate Government under Section 33 of the Disabilities Act again for exemption.

9. Before we answer this question, we recapitulate the exercise already done and also point out that the request of the Railways for exemption was earlier turned down. The appropriate Government had constituted an Expert Committee on 02.7.1999 in pursuance of the provisions under Section 32 of the Disabilities Act for identifying suitable posts for different kind of disabled persons. The Expert Committee decided that one such Committee should be set up for each of the three categories of the disabilities which was provided reservation under Section 33 of the Act. Accordingly, three sub- Committees were set up:
(i) Sub-Committee for Locomotors Disability or Cerebral Palsy;
(ii) Sub-Committee for Hearing impairment;
(iii) Sub-Committee for persons with blindness or low vision.
10. According to the appropriate Government itself, these Sub- Committees made an in-depth study of the various jobs done in Government offices as well as Public Sector Undertakings, including the jobs already identified by the Expert Committee in 1996. The Expert Committee submitted its report on 03.3.2001. This report was circulated to all the Central Ministries/Departments to obtain their comments on the recommendations/posts identified by the Expert Committee. Based on the comments received, the appropriate Government issued Notification dated 31.5.2001 notifying the report as Annexure-II for information and further necessary action and also clearly stating that the list of jobs identified by the Committee is by no means exhaustive and Ministries/Departments etc. may have to further supplement this. In the said report which was annexed with the Notification, it was inter alia remarked:
"(b) The nomenclature used for respective jobs in these recommendations shall also mean & include any nomenclature used for the comparable post with identical function of the identified post.
(c) The established covered under the Persons with Disabilities Act 1995 will have the discretion to identify post in addition to the posts already identified by the appropriate Government. However, no establishment on its own discretion can exclude any post out of the purview of identified post for effecting reservation under Sec. 33 of the Act. In case any establishment feels that it required exemption from filling up a vacancy against an identified post by the appropriate Govt. the establishment under Sec. 33 of PWD Act. 1995 can approach the inter departmental committee constituted for the purpose to look into the matter regarding exemption from Sec.33 of the PWD Act. Other than this no authority has the jurisdiction to accord exemption from filling up a vacancy against an identified post for persons with disabilities."
(emphasis supplied)
11. It is not in dispute that the posts which the respondents are not willing to fill as of now are included in the report of the Expert Committee. In fact, vide Notification dated 18.1.2007, the appropriate Government based on the recommendations of the three Sub-Committees which were constituted on 28.2.2005 identified some more posts in Group ‟A‟ and Group ‟D‟ to be suitable for PH persons. These included various posts of Civil Engineers, Electrical Engineers as well as Mechanical Engineers. It is clear from the above that no discretion was left with any Ministry or Department to exclude any post under Section 33 of the Act. The only permission which was given was that these establishments who felt that the required exemption of filling up of posts against identified posts by the appropriate Government could approach for exemption under Section 33 of the Act. The respondents herein did approach and sought exemption under Section 33 of the Act. However, this exemption has been refused repeatedly since 2001.

12. We would like to refer to one such rejection vide Office Memorandum dated 09.2.2010, whereby the respondent was informed as under:
"The undersigned is directed to refer to Ministry of Railways D.O. N.2009/E(GR)1/16/3 dated 19.1.2010 addressed to Secretary (SJ&E) on the subject mentioned above and to say that this Ministry has time and against informed Ministry of Railways about the decision taken in this regard, which in brief are as under: 
(a) Ministry of Railways vide our O.M. No.16-
52/2005-DD.III dated 29.12.2005 (Annex.-I) was informed that the Expert Committee in its meeting held on 14.03.2005 under the Chairmanship of Secretary (SJ&E) had decided that all non-technical services examination included in the Civil Services Examination and Engineering Services were suitable for providing reservation to PWDs. 
(b) It was again informed vide our O.M. No.16-
52/2005-DD.III dated 14.02.2006 (Annex- II) that all non-technical services namely Indian Railway Accounts Service & Engineering Services, IRES, IRSEE, IRSME, IRSSEE, IRSS and Assistant Divisional Medical Officer were found suitable for reservation for PWDs. 
(c) Thereafter, Ministry of Railways again and again submitted their proposals to review the matter citing nature of work and work environment of the posts for grant of exemption. 
(d)     It was again informed inter alia, vide our OM No.16-27/2005-dd-III     dated     24.10.2008 (Annex - III) and dated 10.11.2008 (Annex- V) that until exemption is granted for any posts of Engineering Services under Section 33 of PwD Act, it is mandatory for Railways to provide 3% reservation to PwDs (in the matter of Jayanta Kumar Khamri, candidate of Engineering Services Examination 2007, who had obtained a very good position in the merit list.
(emphasis supplied)"
13. We would also like to reproduce a portion of Minutes of the Inter-Departmental Committee (IDC) held on 12.2.2010 regarding exemption of posts/establishments from the purview of Section 33 and 47 of the Persons with Disabilities Act, 1995:
"11. Director NIVH stated that the expert committee while identifying the posts for reservation had gone into all details including nature of the jobs and suitability of PwDs with particular disability. They had examined the posts of Railways also. There were a number of capable PwDs who deserve to get a chance. 
12. Addl. Member, Ministry of Railways informed the Committee that there were 750 categories of posts in Railways and exemption was being sought for a few posts which involved field postings. They were complying with almost 90% of reservation in Group C & D categories. They were seeking reservation in certain Group A and other categories because of functional criticalities. He requested that instead of generalities, the Committee should discuss the merits of each proposal. 
13. Thereafter, the Committee first discussed the request for exempting the posts of Asst. Engineers Civil, Mechanical & Electrical (Group A posts) in the Indian Railway Service of Engineers (IRSE). It was felt that the reasons given for seeking exemption for all these posts was based on a surmise that "an officer with a disability may find that field working not only inconvenient but also unsafe for public and himself as well". It was felt by the other members of the Committee that no effort had made to recruit persons with disabilities in such posts and therefore the assumption could not be made that a person with disabilities who was qualified to be considered for such posts would not be able to meet the demands of the jobs. Moreover, the further assumption that "even if an office with disability is given a specific assignment not involving field/operational posting, this will restrict his exposure to overall railway working and may even affect the promotional prospects due to limited and restricted exposure to railway working causing frustration in such an officer" is also premature. The frustration resulting from denial of opportunity for recruitment to such posts after being suitably qualified, would be much higher. As regards safety of the officer & the public at large is concerned, these aspects can be appropriately considered at the time of recruitment, keeping in view the extent and nature of disability. The committee, thus, did not favour en masse exemption of such posts."

14. It is in this backdrop we have to examine as to whether on the special plea that the respondent is approaching the appropriate Government against for exemption - can it delay the process of clearing the backlog by filling up the posts which are meant for PH persons? Answer has to be emphatic "NO". In this the first instance, position that prevails as of now in law has to be taken into account. There is no exemption given to the Railways. The vacancies have arisen; there is a backlog.
Therefore, the Railways are bound to fill those vacancies once they are identified by the appropriate Government as per which these posts can safely and conveniently be meant for PH persons. The respondent is attempting to do what is not only impermissible in law, but even was specifically forbidden vide Notification of 2001 by the appropriate Government. Once the respondent approached for exemption and it was denied, it cannot still show stubborn attitude on nurturing a feeling of "fear of unknown". When the Expert Committee had made in- depth study and had come to the conclusion that the PH persons suffering from specified disabilities are competent to effectively discharge the duties on these posts, the respondent/Railways cannot sit over the judgment. On the contrary, it is bound to accept the same.

15. We may also note here another interesting argument of the learned counsel for the petitioner. Referring to the provisions of Section 33 of the Disabilities Act, he submitted that as per the proviso thereto, only an "establishment" can be exempted and not a particular "post". From reading of this proviso, it appears to be correct, which reads as under:
"33. Reservation of posts. - 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) hearing impairment;
(iii) locomotor 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.
16. We must take note of the rapid advancement in medical science and technology which is progressively ameliorating the hardship faced by the persons suffering from various kinds of disabilities. With the advancement in technology and advent of supports, as may be provided through supported employment, the notion of equating disability with inability to work is erroneous and outmoded. There should be a presumption of ability that a person can achieve employment and other rehabilitation goals regardless of the severity of his or her disability, if appropriate services and supports are made available.

17. Thus, 10 years ago, when the Expert Committee was of the opinion that the persons suffering from a particular kind of disability would still be entitled to be appointed to these posts, with the passage of time, these posts would have become more suitable for these PH persons. This is also an indicator that there is hardly any scope for the respondent to get exemption under Section 33 of the Act, moreso, when it is repeatedly refused on the earlier occasions.

18. It is high time that the concerned persons in the respondent Ministry should change their mindset. It has to be recognized that there is a paradigm shift in the approach that is required to deal with the issue concerning disability. The traditional approaches to disability had depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons were viewed as abnormal, deserving of pity and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalizing the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. However, after emphasis on human dignity in the U.N. Charter or Universal Declaration of Human Rights or several International Covenants as well as provisions in the Constitution of India, in the last 50-60 years the concept has acquired new and wider meaning comprehending in its sweep various facets. It has now been evolved as a human rights issue. The move from the patronizing and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights." (See Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2- 2001).

19. Alas! Notwithstanding the aforesaid shift in approach at international level, mindset of some of the Government functionaries has still not changed. We have to remind ourselves that disabled people no longer see their physical or mental limitations as a source of shame or as something to overcome in order to inspire others. What non-disabled people do not understand is that people with disabilities also have some rights, hopes and aspirations as everyone else. They do not want to depend on others. They want to brave their disabilities. They want to prove to the world at large that notwithstanding their disabilities they can be the master of their own lives. They can be independent. They can be self- reliant. They do not want sympathies of non-disabled. They want to be trusted. They want to be treated as valued member of the society who can contribute to the development and progress of the society. For this they want the proper environment to grow. Our society automatically under- estimates the capabilities of people with disabilities. People with disabilities want this change in the thinking of non- disabled.

20. It is to ensure these very rights that Disability Act was enacted which, in fact, reflects the spirit of Indian Constitution itself. The Disability Act places responsibility on the society to make adjustments for disabled people so that they overcome various practical, psychological and social hurdles created by their disability. The Act places disabled people at par with other citizens of India in respect of education, vocational training and employment. There have been and are a number of programmes, schemes and services for disabled people in India but there was no separate law to protect the rights of disabled people. The Act claims to fill that void. It seeks to establish a coherent and comprehensive framework for the promotion of just and fair policies and their effective implementation. It creates formal procedures, which hasten the process of full and total integration of the disabled in the society. The Act has made education of children with special need a basic focus. The main aim of PWD Act is also to define the responsibilities of the Central and State Governments with regard to the services for disabled persons. The Act aims to ensure full life to a disabled individual so as to enable him to make full contribution in accordance with his disability condition.

21. Employment rights of persons suffering from disability have to be examined in the aforesaid perspective. When Disability Act confers special and preferential rights to persons with disability in Government employment providing 3% reservation of vacancies for them, it has to be taken to its logical conclusion. This right should not be only on papers, but has to be translated into reality. In the present case, when the Competent Authority has itself undertaken the necessary exercise and found that persons suffering from a particular kind of disability are competent to these jobs, then there remains no justification with respondents to deny these benefits.

22. We accordingly allow this writ petition in the following terms:
The respondent shall fill up the backlog of reserved posts of PH persons. For this purpose, special recruitment drive as directed vide orders dated 20.1.2009 shall be undertaken. The revised schedule shall be fixed with two weeks fixing time limit within six months within which all the vacancies in Group - A, C and D shall be filled up. There has to be strict compliance of the aforesaid direction in a time bound manner and no laxity or indiscrimination shall be tolerated in this behalf. We make it clear that since the respondents have already delayed the process, the time schedule should be strictly adhered to and no further extension shall be granted. The petitioner shall also be entitled to cost quantified at `25,000/-.

JUDGE MARCH 07, 2012 pmc