dear accessindians good evining to all of you. i am forwarding this mail
because the subject is very important
----- Original Message -----
From: A. KUMARESAN
To: [email protected]
Sent: Thursday, October 18, 2012 5:16 AM
Subject: DRAFT BILL 2012
Sir,
Recently Government of India have undertaken the process to
bring about the extensive amendments to the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995. This
decision is a welcome measure. It is deeply appreciated that the decision of
the Government of India ratifying the UN Convention on Rights of Persons with
Disabilities. However, the concern is much deeper.
Prior to the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995 coming into force,
Government of India had, by administrative instructions, like DOPT OM dated
04.09.1985 and 20.11.1989, provided reservation for disabled persons in Group
“C” & “D” posts. This is somewhat similar to what the SCs/STs employees
enjoying in Government Service with an unique feature that reservation is
provided in identified posts
After the Disability Act came into force, such a reservation
was permissible even for Group “A” & “B” posts. This led the DOPT to issue OM
dated 18.02.1997 (Annexures – I and IA). As per this OM, for Group “A” & “B”
posts, the reservation was only at induction level. Significant corrigendum was
issued by the DOPT vide OM dated 04.07.1997 (Annexure- II), which extended the
point number 1, 34 and 67 in cycle of 100 vacancies in the 100 point register
and marked for reservation for disabled employees.
It is clear from the above that point No.1, 34 and 67 in the
cycle of 100 are now earmarked for reservation for disabled employees and thus
reservation is admissible even for Group “A” & “B” posts in promotion category
also and not only at the induction level. This OM is brought in tune with the
letter and spirit of Section 33 of the above Act which stipulates not less than
3% reservation in an establishment in the post identified for each disability.
Vide O.M. dated 16.01.1998 (Annexure –III), sub-para (ii) of
OM dated 18.02.1997 (Annexure – I) was replaced as under:- (ii) The existing
policy of reservation for SCs/STs, including for the physically handicapped in
promotion in all Groups is applicable to all grades and services, where the
element of direct recruitment does not exceed 75%. Hence, it is not in dispute
that reservation exists for disabled employees in promotion for the post in
respect whereof the element of direct recruitment does not exceed 75%. From
the above, it is very clear that reservation to disabled exists not only at
induction level but also for promotion.
All these DOPT OMs referred to above have been issued after
enactment of the above Act and in some OMs the said Act has been referred to.
However, in suppression of all the above OMs, the DOPT vide its OM dated
29.12.2005 (Annexure – IV), has restricted reservations only in induction level
to all cadres and in promotions to Group “C” and “D” cadres only. It is also
appropriate to mention here that most of the posts of Group ”C” have now become
Group “B”, without providing any safety clause of reservation and relaxation to
disabled employees, which they have been enjoying before it’s up-gradation as
Group ‘B’ posts and Group “D” posts have been abolished now in response to the
recommendations of VI Pay Commission.
The DOPT OM dated 29.12.2005 was issued with a
view to consolidating the existing instructions, purportedly bringing them in
line with the Persons with Disabilities (Equal Opportunities, Protection of
Rights & Full Participation) Act, 1995 and clarifying certain issues including
procedural matters with regard to reservation for persons with disabilities in
posts and services under the Government of India and this OM is said to have
superseded all previous instructions issued on the subject so far. But,
“consolidate” means, as per dictionary meaning, “merge”, “combine”, “unite”,
“join”, “strengthen”, “secure” etc and not “disregard” or “ignore” which means
the existing OMs can be clubbed / joined together and no OM can be ignored or
disregarded. But the DOPT has disregarded all the DOPT OMs cited in the
preceding paragraphs which allowed reservation not only for direct recruitment
but also for promotion in all cadres of Group ‘A’, ‘B’, ‘C’ & ‘D’ and blatantly
stated to have issued with a view to consolidating the existing instructions on
the matter. It is not known why DOPT has made such a betrayal to disabled
people. It is a well noted principle that the Parliament has made the above
Act for the benefits of the disabled and it is mandatory to amend the Act
through parliament only if Government decided to remove the above benefit. It
is not known whether the procedure has been followed by DOPT. Moreover Section
72 of the above Act says that the provisions of this Act, or the rules made
there under shall be in addition to, and not in derogation of any other law for
the time being in force or any rules, order or any instructions issued there
under, enacted or issued for the benefit of persons with disabilities.
Due to removal of promotional benefits to Group ‘A’ and ‘B’
posts to disabled employees vide DOPT OM dated 29.12.2005, they have no other
option except to redress their grievances through courts by spending huge
amounts. Several Hon’ble High Courts (Annexure – V, V.A, VI and VI.A) have also
given favourable judgements to disabled employees. It is learnt that some of
these cases are pending in Hon’ble Supreme Court on appeal by Government
thereby denying the benefit of reservation in promotion to disabled employees
for the past 17 years (PWD Act came into existence from the year 1996).
Similarly, I furnish the following instances
where the relaxation of standard has been extended to physically challenged
employees on par with SCs/STs employees. While relaxation in standards is
allowed disabled in Direct Recruitment, the same is denied to Departmental
Promotion Examination.
(i) DOPT vide OM dated 04.09.1985 issued instructions on
relaxation of standards to physically challenged employees on par with SCs/STs
(Annexures – VIII, VIII(i) and VIII(ii)).
(ii) The Hon’ble Supreme Court of India pronounced a
ruling on 19.03.2002 in W.P.No.115/1998 and Hon’ble Delhi High Court in W.P.(C)
No.4853 of 2012 dated 06.09.2012 allowing all physically challenged candidates
to treat them on par with SCs/STs in the matter of providing relaxation in
qualifying marks (Annexures – IX & IX(a)).
(iii) The Chief Commissioner for Persons with
Disabilities of India has also pronounced a similar ruling on the above matter
in favour of disabled candidates of IIT aspirants (Case No: 1/1011-5471/2008
dated 07.08.2008) (Annexure - X).
(iv) BSNL, vide their letters dated 12.10.2004 and
20.01.2005, has provided relaxation in qualifying marks on par with SCs/STs in
the departmental promotion examinations for JAOs (Annexure XI and XII).
Government agencies and NGOs have a good number of statistics
and data about the plight of disabled persons. But it is not by furnishing
various statistical figures and data but by common sense and common scene all
over the country that the conditions of disabled are very poor comparing to
other sections of the society particularly the SCs/STs. Hence, reservation to
disabled persons in Government service is required not only for Direct
Recruitment but also for promotion for the welfare and empowering the persons
with disabilities. Nobody is against providing reservation to SCs/STs. While
the government of India have gone to the extend of amending the Constitution of
India in favour of SCs/STs, the same benefit is denied to disabled whose
conditions are worst than the SCs/STs in the society who require the benefits
and schemes on par with SCs/STs if not provided more than SCs/STs.
The states like Andhra Pradesh and Goa, taking into account
the right spirit of the Section 33 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 (Annexure
– VII) have extended the benefit of reservation to disabled employees to the
cadre of Group ‘A’ and ‘B’ posts in promotion also. Since, DoPT OM dated
29.12.2005 is not in consistency with the Sections 33 and 72 of the said Act
and earlier order issued on the subject by DOPT, Government should consider
repealing the above OM dated 29.12.2005, by suitably including DOPT OM dated
04.09.1985 in para 22 of the OM dated 29.12.2005 treating the disabled
employees on par with SCs/STs with regard to qualifying standard in both direct
recruitment and promotion and make applicable reservation in promotion also to
Group ‘A’ and ‘B’ cadres under Government of India from the year 1996 i.e. from
the date of effect of the above Act.
Repealing of the DOPT OM is necessitated due to the reasons
that the DOPT while compiling / consolidating the OM dated 29.12.2005 has
disregarded / ignored / neglected not only the earlier OM issued on the subject
but also the welfare and empowerment of persons with disabilities. The same is
witnessed from the beginning para of the DOPT OM dated 29.12.2005 which even
misspelled the spelling of the word ‘supersede’ as ‘supercede’.
In the light of the above observations, adding fuel to the
fire, it is distressing to note that the Ministry of Social Justice &
Empowerment has issued a Draft Disability Bill 2012, claimed to be submitted to
the Parliament during the coming winter session, has gone entirely against the
interest of the disabled and Sudha Kaul’s Committees recommendations with
regard to employment despite existence of above justification.
My critique on the Disability Bill, 2012 is attached
captioned as “Critiques on Draft PWD Bill 2012 on Reservation and Concession to
disabled”. Since, the action of the Ministry of Social Justice & Empowerment
is against the interest of the thousands of disabled employees across the
country, against empowerment of persons with disabilities, against welfare of
the persons with disabilities, against UNCRPD for which India is a signatory
and against National Policy of Persons with Disabilities, I request you to take
the matter at the appropriate forum so as to enable the thousands of disabled
employees across the country not to loose their entitlements and rights but get
their due rights and benefits.
With regards,
A. KUMARESAN
CHENNAI
[email protected]
CRITIQUES ON DRAFT PWD BILL 2012 ON RESERVATION AND CONCESSION TO
DISBLED WORKING IN GOVERNMENT/PSUs/AUTONOMOUS BODIES ETC.
S. No.
Matter
Disability Bill 2011 as recommended by Sudha Kaul Committee
Disability Bill 2012 as published by M/o Social Justice and
Empowerment
Remarks
1
Transfer
Section 56(6)
An establishment shall not ordinarily post and transfer a
person with disability in a place other than his or her native place or within
the vicinity of such place unless such transfer becomes necessary due to
exigencies of the job and expertise possessed by the person with disabilities.
No provisions found.
Statutory provision for posting / transfer of disabled
employees to or near their native places are required as DOPT OM issued on the
subject are not implemented by Government in earnest sprit.
2
Reservation in government jobs.
57. Reservations
All establishments shall reserve not less than seven percent
of all posts and in promotions for persons with disabilities
Section 39(1)
Every appropriate government shall reserve, in every
establishment under them, not less than 5% of the vacancies meant to be filled
by direct recruitment, for persons or class of persons with benchmark
disability.
Several Hon’ble `High Courts have given favourable judgement
to provide reservation in direct recruitment as well as in promotion.
For empowering persons with disabilities, providing stable
economic conditions, improving the quality of life style and bring up the
children of disabled employees on par with other people of the society,
reservation in promotion is a must. Further, restricting reservation only at
induction level will lead the disabled towards starvation and unemployment.
While the government of India have gone to the extend of
amending the Constitution of India in favour of SCs/STs, the same benefit is
denied to disabled whose conditions are worst than the SCs/STs in the society
who require the benefits and schemes on par with SCs/STs if not provided more
than SCs/STs.
Further, Sudha Kaual Committee recommended 7% of all posts.
But the ministry recommended 5% of vacancies. From the above one can easily
judge the intention of the ministry as to whether the ministry, who is supposed
to be the nodal ministry for the welfare of the disabled, is for the welfare of
the disabled or they want to wipe out the disabled community who want to be
always under somebody’s mercy without dignity.
3
Lapse of reserved posts
Section 57(3)
If sufficient number of qualified persons with disabilities
are not available in a particular year, then the reservation may be carried
forward to the subsequent year, and if in the subsequent recruitment year also
a suitable person with disability is not available, then the post may be first
filled by interchange among the categories, and if the vacancy is still not
filled then the establishment shall identify, train and then induct persons
with disabilities on the post. In no case shall a post to which a person with
disability is entitled to be appointed be allowed to lapse.
Section 39(2)
If sufficient number of qualified persons with benchmark
disabilities are not available in a particular year, then the reservation may
be carried forward for upto the next three recruitment years, and if in such
succeeding recruitment years also a suitable person with benchmark disability
is not available, then the post in the fourth year may be first filled by
interchange among the categories of disabilities; and only when there is no
person with any benchmark disability available for the post in that year, the
vacancy may be filled by appointment of a person, other than a person with
benchmark disability.
The Sudha Kaul Committee’s recommendations in this regard
should be implemented in total. Providing reservation for a post and allowing
the reservation to lapse for want of candidates, makes the reservation a
meaningless exercise. Even the concept of ‘zone of consideration’ and
‘extended zone of consideration’ in case of promotion should go away and posts
in question should be filled on the basis of available disabled man power.
4
Relaxed standard
Section 49(2)
All appropriate governments and educational authorities may
if they deem fit to promote equality of opportunity relax according to
prescribed procedure the minimum qualification criteria required to be obtained
by persons with disabilities who seek admission to a higher education
institution.
No provisions found.
Relaxation of qualifying marks has been allowed to SC/ST
candidates in Departmental Promotion Examinations. While the physically
challenged employees of the SC/ST communities enjoy this benefit, the same is
denied to other physically challenged employees. The following cases where the
relaxation of standard has been extended to physically challenged employees on
par with SCs/STs candidates are furnished.
(1) DOPT vide OM dated 04.09.1985 issued instructions on
relaxation of standards to physically challenged employees on par with SCs/STs
(2) The Hon’ble Supreme Court of India pronounced a ruling
on 19.03.2002 on the W.P.No.115/1998 allowing all physically challenged
candidates to treat them on par with SCs/STs in the matter of providing 5%
relaxation in qualifying marks.
(3) The Hon’ble Delhi High Court pronounced a similar
ruling on 06.09.2012 on W.P.(C) No.4853 of 2012 in favour of a disabled student
who sought admission Delhi Technological university.
(4) The Chief Commissioner for Persons with Disabilities of
India has also pronounced a similar ruling on the above matter in favour of
disabled candidates of (i) IIT aspirants (Case No: 1/1011-5471/2008 dated
07.08.2008) and (ii) Postal Department (Case No. 3810/07 dated 17.08.2007).
(5) BSNL, vide their letters dated 12.10.2004 and
20.01.2005, has provided relaxation in qualifying marks on par with SCs/STs in
the departmental promotion examinations for JAOs.
Despite existence of all the above justifications, relaxation
in qualifying standard is not provided to disabled employees in Departmental
Promotion Examination while extending the same in Direct Recruitment. The only
way to protect the interest of the disabled is to provide statutory provisions.
5.
Provision against retrenchment of a disabled employee.
Section 56
(2) No establishment shall dispense with, or reduce in rank,
an employee who acquires a disability during service, such employee may if
required by the nature of disability, be shifted to another post with the same
pay scale and service benefits.
Provided further that if it is not possible to adjust the
employee against any post, then such employee may be kept on a supernumerary
post until a suitable post is available or the age of superannuation whichever
is earlier
(3) The protection accorded in sub section (2) shall also be
extended to persons employed with the defense forces;
Provided that this sub section in no way precludes the
defense establishment to formulate a more beneficial employment retention and
rehabilitation scheme for persons employed with the defense forces.
Section 25(3)
(3) No establishment shall dispense with, or reduce in rank,
an employee who
acquires a disability during service,
Provided that such employee may, if required by the nature of
disability, be shifted to another post with the same pay scale and service
benefits;
Provided further that if it is not possible to adjust the
employee against any post, he may be kept on a supernumerary post until a
suitable post is available or
he attains the age of superannuation, whichever is earlier;
Provided that the appropriate Government may, having regard
to the type of work carried on in any establishment, by notification and
subject to such conditions, if any, as may be specified in such notification,
exempt any establishment from the provisions of this section.
Using the safely clause provided in the Bill 2012, Government
may exempt any establishment from the provisions of this section defeating the
purpose of the Section. Hence, the Sudha Kaul Committee’s recommendations in
this regard should be implemented in total.
6.
Tax
Section 131
Notwithstanding anything contained in the Wealth-tax Act,
1957 (27 of 1957), the Income-tax Act, 1961 (43 of 1961), or any other
enactment for the time being in force relating to tax on wealth, income,
profits or gains, the National Disability Rights Authority and State Disability
Rights Authority shall not be liable to pay wealth-tax, income-tax, or any
other tax in respect of their wealth, income, profits or gains derived.
Section 122
Notwithstanding anything contained in the Income-tax Act,
1961, or any other law for the time being in force relating to tax on income,
profits or gains, the Trust shall not be liable to pay income-tax or any other
tax in respect of its income, and profits or gains derived therefrom.
The Bills 2011 and 2012 have not recommended any tax benefits
to the individual disabled persons.
It is a good step that senior citizens are provided with more
tax benefits because with advancing age, older people do need that extra care
and protection. Their expenses on medical care, the need for an attendant, etc.
go up. Therefore, if they are given some relief from taxation, they can use
that extra money to fund their extra needs that develop due to the old/very old
age.
Similarly, it would not require a very long argument to prove
that the needs of a disabled person are much greater than a say 80 or 85 year
old senior citizen. The need for full time carers, the astronomical amounts
spent on medicines and rehabilitation.
Hence, it is expected that people with disabilities are
exempted from paying of all kinds of taxes including income tax. Needless to
say, the same concession should also be available to the parents of a dependent
disabled child or disabled person, especially in the case of parents of
children/people with psychosocial and intellectual and developmental
disabilities.
7.
Political participation
Section 32. Right to Political Participation
(1) Notwithstanding anything contained in the Representation
of the People Act (No. 43 of 1950), the Representation of the People Act (No.
43 of 1951) or any other law for the time being in force, every person with
disability who fulfills all the eligibility requirements shall be entitled to
be registered as a voter and shall not be held disqualified to exercise his or
her right to vote on the ground of disability irrespective of any stipulation
to the contrary in any law for the time being in force18;
(2) Notwithstanding anything contained in the law for the
time being in force, any person with disability who is unable to cast vote in
person due to his or her disability or because of admission in any
establishment maintained wholly or mainly for the reception and treatment of
persons with disabilities at the time the poll is taken shall be entitled to
vote by postal ballot and provisions shall be made, by rules made under the
Representation of the People Act (No. 43 of 1951) to enable such voting;
The Rights of Persons with Disabilities Bill, 2011
(3) The Election Commission shall ensure that all polling
stations are accessible to persons with disabilities and that all materials
related to the electoral process are easily understandable by and accessible to
persons with disabilities;
(4) Without prejudice to the generality of the provisions
contained in sub–section (3), the measures undertaken by the Election
Commission in pursuance of that sub–section shall include:
a. the construction and availability of ramps at all polling
booths;
b. separate queues for persons with disabilities at all
polling booths with clear pictorial signs;
c. the availability of ballot papers and/ or electronic
voting machines with candidates’ information available in Braille and other
accessible formats;
d. the fitting of audio devices to electronic voting
machines;
e. training programs to sensitise polling officers about the
special requirements of persons with disabilities.
(5) If the presiding officer is satisfied that, due to
disability, a person with disability is unable to recognise the symbols or to
record vote without assistance, the presiding officer shall permit the elector
to take a companion of not less than eighteen years of age to the voting
compartment for recording/ casting the vote;
(6) Every person with disability is entitled to form and be a
member of any organization or association in accordance to choice.
Section 19. Right to Political Participation
(1) The Election Commission of India and the State Election
Commissions shall ensure that all polling stations are accessible to persons
with disabilities and that all materials related to the electoral process are
easily understandable by and
accessible to persons with disabilities.
(2) Without prejudice to the generality of the provisions
contained in sub–section (1),
the measures undertaken by an Election Commission in
pursuance of that sub–section shall include:
a. the construction and availability of ramps at all polling
booths;
b. separate queues for persons with disabilities at all
polling booths with clear
pictorial signs;
c. the availability of ballot papers and/ or electronic
voting machines with
candidates’ information available in Braille and other
accessible formats;
d. the fitting of audio devices to electronic voting machines;
e. training programs to sensitise polling officers about the
special requirements
of persons with disabilities.
(3) If the Presiding Officer of a polling booth is satisfied
that, due to disability, a person with disability is unable to recognise the
symbols or to record vote without assistance, the presiding officer shall
permit the elector to take a companion of not less than eighteen years of age
to the voting compartment for recording / casting the vote.
1) The Village Local Bodies, State Legislative Councils,
Rajya Sabha etc. should have an appropriate number of nominated members from
disabled community so that they can put forward their suggestions / demands and
fight for their rights.
2) Reservation should also be provided at Village Local
Bodies, State Legislative Assemblies, Lokh Sabha etc. so that they can put
forward their suggestions / demands and fight for their rights.
Prepared by
A. KUMARESAN,
Chennai.
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