Wednesday, December 28, 2016

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

Dear Colleagues,

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


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


Extracts from PWD Act of 1995


32. Appropriate Governments shall--

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

33. Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from-

(i) Blindness or low vision;
(ii) Bearing impairment;
(iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: 
Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.'

Extract from RPWD Bill 2016



'33. The appropriate Government shall—
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years

34. (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—

(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including 35 deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.'

The problem areas

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

Despite clear writing on the wall on the issue of reservation in promotion for persons with disabilities after the Supreme Court's clarification, the bill negates the judgement. It relegates the right to reservation in promotion to a provisio  where it is left with 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.


13 comments:

Sandeep Goyal said...

@SC Vashist : What is expected of Union Govt wrt to dopt letter on reservation in promotion in group A and B.
sir, 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.

Dhirendra parashar said...

What will be happened now ?

Dhirendra parashar said...

Disabled right bill 2016 is in favour of reservation in promotion or not ?

Subhash Chandra Vashishth said...

@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!

A.RAMESH said...

Department of disability affairs sought suggestions regarding framing of rules in conformity with the rights of pwd act 2016.plz post ur views defending reservation in promotion in all groups.

sajayism said...

sir, 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.

A.RAMESH said...

Department of Empowerment of Persons with Disabilities has framed draft for rights of Person with disabilities rules, 2017 .Rule 09 of draft for rights of Person with disabilities rules 2017 is totally unconstitutional and it is not in accordance with the section 34 of THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016 as appropriate government (here Ministry of Social Justice which is the nodal ministry for protection of rights of PWDs ) is supposed to issue rules /instructions for providing reservation in promotion for Person with disabilities however in the draft rules same contents (as mentioned in the section 34 of the act regarding reservation in promotion ) have been reproduced without clarifying the intention of the Government for providing reservation in promotion for Person with disabilities .
Rule 09 of draft rules does not mention or provide anything clearly about reservation in promotion for person with disabilities .Taking this loop hole, the authorities of DoPT and other organization may clearly deny reservation in promotion for Person with disabilities in all Groups of posts including Gr ‘A’ and ‘B’ as were done in past. We have fought a long legal battle with DoPT and Other organization and finally the Hon’ble Supreme Court in the case Rajiv Kumar Gupta Vs UOI in writ petition no 521/2008, has directed the Central Government to provide reservation in promotion for person with disabilities in Gr ‘A’ and Gr ‘B’ post also .However when time came-up for implementation of Hon’ble Supreme Court’s order for providing reservation in promotion in Gr ‘A’ & Gr ‘B’ post for person with disabilities , the Govt has enacted the new law putting the issue of reservation in promotion for person with disabilities in silent mode .
Sir we have been battling for providing reservation in promotion for person with disabilities in all Groups of posts (A,B,C &D) since decades so as to have equal representation of every section of people at all levels of posts. Sir in case provision of reservation in promotion for person with disabilities in all Groups is not clearly spelled-out, following implications may come-up in future :-
(i) There is no direct recruitment element in Group ‘B’ posts of Assistant Personnel Officer , Assistant Accounts officer etc in Indian Railways and these posts are filled-up through departmental selections amongst suitable Group ‘C’ employees, if provision of reservation in promotion for PWDs is not clearly spelled-out in the rules ,some central Govt organization may deny reservation in promotion for PWDs in these posts consequently it is unlikely to fill-up four percent of total number of vacancies in the Group ‘B’ cadre where there is no element of direct recruitment thereby the representation of Person with Disabilities in these Group ‘B’ may be NIL/ZERO ,hence it may likely to infringe fundamental right of Equal Opportunities and Equal representation of PWDs guaranteed by the Indian Constitution & Act of 2016.
(ii)The Hon’ble Supreme Court in the case of Rajiv Kumar Gupta Vs UOI, has clearly mentioned that the basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to the PWD.The objective behind the Act is to integrate PWD into the society and to ensure their economic progress .The intent is to turn PWD into ‘agents of their own destiny’, hence ambiguous provision of rule 09 of draft rule for reservation may defeat the vary purpose.

Hon’ble Minister of Social Justice Shri Tawar Chand Gahlot have publically said that Government is keen for the welfare of Person with disabilities , they why Government is not making clear provision for providing reservation in promotion for Person with Disability

Padmanabhan Govindarajan said...

Any legal remedy sought in this aspect (Rule 09 of draft for rights of Person with disabilities rules 2017)

Subhash Chandra Vashishth said...

@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.

sarvar khan said...

Sir we need some guidance
As 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

Subhash Chandra Vashishth said...

@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.

The 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.

A.RAMESH said...

@Subhash Sir - Sir Should we file PIL before the Hon'ble Supreme Court of India against the unconstitutional provisions made in the draft rules on rights of Person with Disabilities; with a pray to direct Government of India to frame rules duly providing reservation in Promotion for PWD

Subhash Chandra Vashishth said...

@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.