Thursday, August 4, 2016

Are meritorious candidates with disabilities pushed into disability quota against the spirit of Section 33?

Dear Colleagues,

The govt. departments, who should be complying with the provisions of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 have been flouting these very provisions under different garbs. This is not a new phenomenon. I remember in April 2005, I had challenged on behalf of All India Confederation of the Blind an advertisement of Govt. of NCT of Delhi and UPSC for filling up 90 posts of Principals without giving 3% reservation for persons with disabilities. In the counter filed by the Delhi Govt. it was suggested that they will adjust all persons with disabilities against reserved quota even if they cleared on their own merit. The Hon'ble Court presided by Justice S. Ravindra Bhat then had given a categorical judgement saying this could not be allowed and issued rule. The Delhi Govt. even went in appeal through LPA No.2042, 2043 and 2044/2005, however, on 21 Dec 2005 vide a common judgement, the double bench headed by the Hon'ble Chief Justice and Justice Madam B Lokur dismissed the said appeals upholding that Article 46 of the Constitution provides that the State shall promote the interests of weaker sections and weaker section would include not just SCs and STs but also persons with disabilities. The court had dismissed the LPAs with directions that a candidate with disabilities who has qualified in the selection and whose merit is so high that if he were a general category candidate he would still have been selected, then his appointment will not be made against the quota of persons with disabilities. Such a candidate would be treated as if in the general category and the reserved seats of the disabled category will be calculated excluding him or be filled up accordingly.

In fact, this fact has been repeatedly held by the Hon'ble Supreme Court that concessions to help / enable a candidate appear in examinations cannot be termed as “reservation benefits“ if she/he qualifies on merit. [PGI Medical Education and Research V. K.L. Narasimham, (1997) 6 SCC 283]

The trend of subverting the laws against the marginalized section continues to be pushed by many employing departments rendering the minimum reservations as maximum reservations. As simple as age relaxations, fee relaxations, lower threshold of qualifying marks and additionally in case of disabled candidates - using a scribe or availing compensatory time during examination is being used as the basis to classify them as "reserved candidates". Using a scribe or compensatory time or fee/ age /qualifying marks relaxation can at best be considered as enabling provisions. These provisions can not be used to push them in to the "reservation quota" thereby defeating the original intent of such beneficial legislation.

The National Commission for SCs is examining this issue and has issued notice to UPSC, DoPT etc. on receipt of complaints from the stakeholders. The Commissioner for Persons with Disabilities on the other hand, has not taken any suo moto notice of several such cases happening right under their nose. This is an alarming situation where the statutory bodies are lagging behind in restoring justice to the most marginalized and have failed to protect their rights and equal participation in the spirit of the Persons with Disabilities Act 1995.

No comments: