Thursday, April 27, 2017

Supreme Court of India asks compliance report of new RPwDAct 2016 in 12 weeks

Dear Colleagues,

Hon'ble Supreme Court of India has, in a major move to ensure speedy justice to persons with disabilities, has passed directions to implement the Rights of Persons with Disabilities Act 2016 enforced by the Govt. of  India on 19 April 2017. In an interlocutory application filed by the petitioner in Justice Sunanda Bhandare Foundation vs. Union of India and Another, reported as (2014) 14 SCC 383, and on the application filed by intervener "Sambhavana Organisation",  the bench of  Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar passed the directions to all the States and Union Territories to file compliance report within 12 weeks on the Act of 2016.

The Intervener, Sambhavana Organisation - a self help group of persons with disabilities had also filed an application citing examples of over seven Universities that were discriminating against persons with Blindness and Vision Impairments while filing up various teaching and non-teaching posts. The intervener also cited instances that UGC that funds these universities has not taken any action on implementation of the provisions of the Disabilities Act particularly the reservation in employment and successive employment notification systemically failed to give the rightful representation to the stakeholders with visual disabilities.

The bench observed, "The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant."

The bench referred to certain provisions to highlight the salient features of the Act of 2016 and stressed that more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation. 

The Court directed, "When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made. The Bench directed the SC registry to send its order to chief secretaries of all states and directed them to take immediate steps to comply with its direction by 16 Aug 2017.

The Court directed that compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner (Justice Sunanda Bhandare Foundation), learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor (Sambhavana Organisation) so that they can assist the Court.

A copy of the Order Dated 25 April 2017 in matter titled Justice Sunanda Bhandare Foundation vs. Union of India and Another can be accessed here.

20 comments:

Pratibha Bhatnagar said...

Nice direction..hopefully speedy compliance by all d concerned departments n state govts...Pratibha Bhatnagar

Dhirendra parashar said...

New PWD act has reservation in promotion or not ?

Subhash Chandra Vashishth said...

New Act has mentioned the words reservation in promotion. However it has been left to the states to make rules regarding it. For Centre, it should be governed by the Supreme court decisions. This matter has already been referred to a larger bench which is yet to hear it finally.

sanjay said...

But In a historic judgment in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others, the Hon'ble Supreme Court on 30 Jun 2016 has set aside / quashed the two office memorandums No.36035/16/91-Estt. (SCT) dated 18.02.1997 and No.36035/3/2004-Estt. (RES) dated 29.12.2005 issued by the Department of Personnel and Training, Government of India, terming them as illegal and inconsistent with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. And directed the Govt, of India for reservation in promotion for persons with disabilities in Groups A and B.

Is it not a clear Order?? Then why The Supreme Court Order is not implemented till date??

Sandeep Goyal said...

@ Sc Vasisht

Sir, Can Govt appeal in still higher bench then the present one.

Because govt seem to bent upon not giving the benifit to the PWD.

I think SC has rejected the appeal three four times.

Donot think it would end with this hearing, expert opinion please.


Subhash Chandra Vashishth said...

@Sanjay @SandeepGoyal - As I clarified, the matter has been referred to a larger bench which has not yet assembled. And that is why DoPT has not yet issued any Memo. The current case in question is a different one wherein the petitioner had petitioned for implementation of the PWD Act and now RPWD Act through applications. There is also an intervening application by Sambhavana Organisation seeking relief against UGC for not implementing the Act in various affiliated universities. Let us see, what various states say in their affidavits before the SC. Hon'ble Justice Dipak Misra is the second senior most Justice in the Supreme Court after the Chief Justice, therefore, the matter is being taken with its seriousness.

As far as reservation in promotion for persons with disabilities is concerned, the State cannot take away an existing right in the name of implementation of UNCRPD. Therefore, the interpretation of the Hon'ble SC should be respected. Its only matter of time.

ROKHALA CHITTI BABU said...

sir the dopt has passed a draft memorandum on 20th june 2017 wherein it clearly mentioned that no reservation for group A and B categories on promotion though the SC decision clearly direct that 3 % reservation for A
and B on promotion.

sanjay said...

Sir ji, there was a draft order No. No. 36035/02/2017-Estt (Res)20/06/2017 is placed at ccc.nic.in, circular portal, for suggestions,or opinions from general public, regarding Reservation for Persons with Benchmark Disabilities. But there, they keep provisions for reservation at promotion of physically disabled persons, but restricted the provision only at the post of Group C and D as they had done before. They clearly neglected and violated the Hon'able Supreme Court order, regarding reservation at promotion at Group A and B posts.

What exactly are they planning to do?? Are they trying to stop the implementation of Supreme Court Order?? What to do in this situation??

Subhash Chandra Vashishth said...

@Sanjay, @Rokhala The draft order is due for revision in light of the new Act which recognizes new disabilities. Therefore, you all need to give your comments on the draft citing SC interpretation, new law and CRPD. The draft contains the old format about the reservation in promotion. However, soon this has to be implemented in light of the SC judgement. Though the new law seems to have weakened the reservation in promotion provision, however, it is certain that the govt. can't takeaway the interpretation of the earlier law in the name of implementing CRPD. So, I believe, it is only a matter of time. The mandate of law must be respected by one and all.

Kandregula venkata apparao said...

All person with disabilities candidates please send email to g.sreenivasan@nic.in,debabrata.d13@nic.in by mentioning Promotion reservation of person with disabilities to include in draft dopt 2017, which is coming in place of supreme Court squashed dopt2005.Draft dopt2017 is replaced 3% to 4% and d,e clauses type pwd candidates. But A,B,C,D groups promotion reservation of pwd was not included and kept as early dopt2005 of C,D groups only promotion reservation. So please send max pwd candidates ti the above mentioned emails immediately.

A.RAMESH said...

I have sent my comments to the DoPT as under :-
Respected Sir,
Most respectfully, it is to mention that I am a physically challenged citizen of India .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 However when time came-up for implementation of Hon’ble Supreme Court’s order in WP(C) No 521/2008 in the case of Rajiv Kumar Gupta Vs UOI 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 in case provision of reservation in promotion for person with disabilities in Group 'A' & 'B" 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 for reservation may defeat the vary purpose.
Here it is pertinent to mention here that the country where we are residing is democratic republic and it is supposed to protect the rights of its disabled citizens without any discrimination .


It is therefore requested to kindly do needful for providing provision for reservation in promotion for Person with disabilities in all identified Group ‘A’ & Group ‘B’posts also .Else we will have no option but to carry out huge demonstration before the Hon'ble PM's House and Parliament

Padmanabhan Govindarajan said...

Dear Ramesh sir,
Demonstration before the HPM house and Parliament is not good since we are less in number. It is better to wait for the report of new RPwD act. Only legal remedy will fetch us dignity, though it is painful to wait endlessly.

krishan kumar said...

Pls say about rpwd in which reservation in promotion of group A and B not given then next step

sanjay said...

Any update regarding reservation at Group "A" and "B" for physically challenged person, at RPWD Act??

Dharmendra Kumar said...

Is there any progress in this case & what is hearing date of review case of Rajeev gupta

Subhash Chandra Vashishth said...

@Dharmendra kumar - The matter has been referred to a 5 judge bench of the Hon'ble Supreme Court of India recently. Lets wait for the judgement!

Kamal Sharma said...

I think if Supreme court judgement can be thrown to dustbin by DOPT ( by non compliance of judgement for reservation in promotion ) , we are left with no option .
BETTER TO UNITE ALL DISABLED AND THEIR FAMILIES AND JOINTLY CALL FOR BOYCOTT THE VOTING IN THE COMING 2019 ELECTION ..... As legally we won in more than five times in supreme court but all in vain .... Govt legislatively snatched our right by implementing disability bill 2016 . In the whole episode only disabled got squeezed in the name of court cases ......

Sandeep Goyal said...


what is the biggest bench in Sc by way of numbers. can the cse go to still higher bench if the decision is against DOPT/CG.

The the plantiff can go to higher bench if the case is in favour of gov

Sandeep Goyal said...

Also whether 5 Judge bench act in time bound manners or many years would be lost once again

In this case justice delayed would be justice denied.

Padmanabhan Govindarajan said...

The hope is lost for us. Wish the gen-next gets it