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----- Original Message -----
From: DISABILITY INTERNATIONAL FRIENDLY
To: [email protected]
Sent: Saturday, October 20, 2012 1:28 AM
Subject: PROMOTION RESERVATION - JUSTIFICATION FOR INCLUSION IN PWD BILL 2012
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.
ANNEXURE%20-%20IX%20SUPREME%20COURT%20JUDGEMENT.pdf
ANNEXURE%20-%20X%28a%29%20CCPD%20JUDGEMENT%20ON%20POSTAL%20DEPARTMENT.doc
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