Supreme Court on filling up of backlog Disability quota (in promotion?)

A unique example of how selected media reporting can create grapevines.  I have learnt that the proceedings in the court were completely different from what has been reported here by the TNN.

The Hon'ble Supreme Court was actually hearing a contempt petition filed by the National Federation of the Blind against the Central Govt for complying with the court's October 8, 2013, regarding filling up of 15000 vacant posts. SC dismissed the plea saying that implementation is under way and accepted Center's response that it will be completed by 31st March 2016.

In this context, While disposing of the plea, SC clarified that since the Govt. of India has committed itself to fill up the entire backlog of vacancies numbering about over 15,000 by way of a special recruitment drive in terms of office memorandum dt. 22.5.15, the contempt proceedings will not be initiated. 

The court said the question of reservation in promotion was not there for adjudication since its October 2013 judgment was only in respect of filling up the vacancies reserved for physically disabled people at the entry point, and could not be read into promotion. The story made out thus is unnecessary reading between the lines.

The bench of Justices Ranjan Gogoi and N V Ramana said this while giving clarification on its October 2013 judgment by which the court had held that the 3 percent reservation for physically challenged people would depend on the total number of vacancies in the cadre strength.

The court said its order has to read in the context of two questions it had framed and addressed in its October 8 judgment. And these two questions were:

(a) First was about the manner of computing 3 percent reservation for people with disabilities as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act.

(b) The second question that the court had answered in the October 8 judgment was whether the reservation should be post-based or vacancy-based.

I feel the Hon'ble Bench  thus did not sit to review or clarify its earlier order on the issue of reservation in promotion for persons with disabilities. In fact after the said judgement of October 08, 2013,  the Hon'ble SC upheld the orders of Bombay High court, High court of Delhi and High court of Allahabad laying down that Section 33 includes reservation in promotion as well by way of various judgments particularly judgments dt. 10.12.13 in Civil Appeal No. 9473/2011 titled as Municipal Corporation of Delhi Vs. Manoj Gupta, judgment dt. 12.9.14 in C.C. No.13344/2014 and judgment dt. 27.2.15 in civil Appeal No.5914/2015 titled as Union of India Vs. National Confederation for Development of Disabled and Ors and judgment dt. 20.3.15 in Civil Appeal No.4641/2015 titled as State of U.P. Ors. Vs. Sanjeev Kumar Jain and Ors. dismissing the civil Appeals/ SLPs both of Govt. of India as well as respective State Govts.

Therefore, it is to be clearly understood that if  SC /ST are given the quota in direct recruitment as well as in promotion, the disabled category should not be left out from this benefit under the benevolent legislation whose mandate is equal opportunities, protection of rights and full participation of those living with disabilities.  The govt should bring out appropriate revised DoPT memo to implement this long pending issue of reservation in promotion for government employees with disabilities.

Here is the TNN reported version that sought to create confusion among the stakeholders :

SC: Differently abled can’t claim quota in promotion

Amit Anand Choudhary,TNN | Sep 2, 2015, 05.36 AM IST

NEW DELHI: Differently abled persons can claim benefit of reservation in government jobs only at the time of appointment and cannot get the benefit of the affirmative policy in promotion, the Supreme Court said on Tuesday while clarifying its earlier verdict.

A bench of Justices Ranjan Gogoi and N V Ramana said the apex court's 2013 verdict did not hold that the reservation policy could also be extended to promotion in jobs and stressed that the disabled could claim benefits only at the time of recruitment.

The SC had in 2013 directed the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act which came into force in 1995.

The Centre submitted that the court had not, while passing order for three percent reservation, dealt with the issue of reservation in promotion and the disabled could not be allowed to claim the benefits.

Although the Court had directed that all vacancies under 3% reservation be filled up within three months, the governments failed to comply with the order in the last two years and there are still 10,000 vacant posts in central government. Solicitor General Ranjit Kumar assured the court that all vacancies would be filled up by the end of this financial year.

Source: Times of India 

Frame rules for appointing Disability Commissioner- Ktk HC

Frame rules to appoint commissioner for disabled, HC tells govt
Bengaluru, Aug 04, 2015, DHNS:

The High Court on Monday directed the State government to frame rules and guidelines for appointing the Commissioner for Persons with Disabilities in four months and to appoint a new commissioner by following the new rules.

Hearing a petition by the All India Physically Handicapped Welfare Association, challenging the appointment of K S Rajanna as the Commissioner for Persons with Disabilities, a division bench comprising acting Chief Justice S K Mukherjee and Justice B V Nagarathna disposed of the petition. The bench passed an order stating that Rajanna can remain the commissioner till the new rules are framed and a new commissioner is appointed. The petitioners had contended that Rajanna - who himself is a disabled person - is not eligible enough to hold the position of Commissioner for Persons with Disabilities. The petitioner had challenged his appointment as the commissioner.

Source: Deccan Herald 

Trial Court takes offence to lack of dignified mobility & human rights of an accused with disabilities

Disabled accused made to crawl to fifth-floor court
Sana Shakil,TNN | Aug 6, 2015, 02.17 AM IST

NEW DELHI: A trial court here was left shocked when a disabled person, an accused in a criminal case, had to crawl on his hands to the fifth-floor courtroom because police did not think of arranging a wheelchair for him.

The accused, Yameen Malik, whose legs appeared to be deformed, was being produced in court on Monday for custody proceedings in a rape case.

When additional sessions judge Sanjay Sharma found Malik crawling in the courtroom, he questioned the investigating officer whether there were wheelchair facilities in the jail lock-up for production of disabled persons in court. The IO failed to give any answer.

"The court was shocked to see that the accused, who somehow managed to crawl on his hands, was produced before the court without a wheelchair. It means he has crawled all the way from the jail to this courtroom on the fifth floor of the complex. This is quite painful," the judge observed.

The judge has sought a detailed report from the Delhi Police commissioner and director general of prisons on what the existing provisions were for accused persons with disabilities.

The court said it appears that Malik was being produced in court in the same manner since he was arrested on July 27, 2015.

"This court is of the opinion that there was no arrangement (of a wheelchair) when he was arrested and lodged in police lock-up, produced before the court the first time and made to board the jail van as well as when he was received in jail lock-up at Karkardooma complex. The case demonstrates total lack of sensitivity and concern for the rights of a disabled person," the judge observed.

The court stated that a person with disabilities was entitled to an equal opportunity to access the justice system and could not be denuded of his basic human rights to be treated with dignity and respect. "...it is the duty of the state to make %the legal system accessible to such a person by making an effort to remove physical barriers," it stated in an order passed on Monday.

The court has asked the police commissioner to state whether wheelchairs are available at all police stations and jail lock-ups. It sought to know if there were any disabled-friendly toilets at police stations. The police chief was also asked if any direction had been issued to police stations for providing wheelchairs.

The judge told the police chief to inform the court about action taken against the IO of the case and lock-up incharge of Karkardooma court complex for violating directions, if any, on movement of disabled persons. Similar questions were put to the DG of Tihar regarding disabled-friendly facilities in the prison complex. Compliance reports from both offices are likely to be filed in court on Thursday.

Malik was arrested on charges of raping a minor girl. The case is at an initial stage.

A police officer told TOI that there were specific directions on how accused persons with disabilities are to be dealt with. Police are duty-bound to provide wheelchairs in such cases, he said. "Generally, we avoid arresting any accused with disability unless it's imperative and may affect investigations. But it's the duty of the investigating officer to arrange for a wheelchair before arresting the accused or producing him before the court," said the officer, who did not wish to be named.

Times View

It is shocking that a disabled person who is an accused should have had to crawl up five floors to be present in the courtroom. His human rights do not cease to exist merely because he is an accused, even if it is for a heinous crime. Indeed, they would not cease to exist even if he were convicted of that crime. Police should have ensured that he was provided a dignified means of getting up there. If for some reason that was not possible—say because the lift was not working—the proceedings should have been shifted to a venue, like the ground floor, more accessible to a disabled person.
http://timesofindia.indiatimes.com/city/delhi/Disabled-accused-made-to-crawl-to-fifth-floor-court/articleshow/48367771.cms