Dear friends: I am forwarding this mail witch I received from another list. Please examine the letter and send the same or with some modifications to the authorities concerned on be half of your respective organizations.
Thanking you all. k. srinivas Secretary DWAB Nalgonda AP. ----- Original Message ----- From: kalaivani GA To: [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] ; [email protected] Sent: Thursday, November 08, 2012 12:43 AM Subject: Fwd: Reservation & Concession ---------- Forwarded message ---------- From: kalaivani GA <[email protected]> Date: Thu, Nov 8, 2012 at 2:07 PM Subject: Reservation & Concession To: [email protected] Cc: [email protected], [email protected], [email protected] To Shri K.V.S. Rao, Director (DD-III & National Awards) Ministry of Social Justice & Empowerment, Room No.602-A, ‘A’ Wing, Shashtri Bhavan, New Delhi – 110 001. E-mail ID: [email protected] Sir, I would like to discuss the following in the SAMARTH which was scheduled to be held on 16.11.2012 and postponed. It is highly appreciated that recently Government of India have undertaken a process of bringing about 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 also 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. 1) DOPT OMs issued on the subject of “Reservation in promotion to disabled employees to Group ‘A’ and ‘B’ Cadres”: 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 some what similar to what the SCs/STs employees enjoy 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. As per this OM, for Group “A” & “B” posts, the reservation was only at induction level. Vide O.M. dated 16.01.1998, sub-para (ii) of OM dated 18.02.1997 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 not only in direct recruitment but also in promotion for the post in respect whereof the element of direct recruitment does not exceed 75%. 2) DOPT OM dated 29.12.2005: However, in suppression of all the above OMs, the DOPT vide its OM dated 29.12.2005, 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 slowly become Group “B”, without providing any safety clause of reservation and relaxation to disabled employees, which they had been enjoying before it’s up-gradation as Group ‘B’ posts consequent to the recommendations of 5th and 6th Pay Commissions and Group “D” posts have been abolished now in response to the recommendations of 6th Pay Commission. The reservation to disabled employees in promotion in Group ‘C’ cadre has also virtually been lost as in most of the Direct Recruitment cadres the element of direct recruitment exceeds 75% and reservation orders do not applicable automatically in these cadres, which means the disabled employees are not provided reservation in promotion in any of the cadres. Thus, the motto of PWD Act such as Equal opportunities, Protection of Rights and Full Participation are confined only to papers, the spirit of which is not evident in practice, though section 33 of the Act provides for reservation in both promotion and direct recruitment. 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’. The DOPT, after enactment of the above Act issued OMs in pursuance to the above Act and it is mandatory to get the concern of parliament if Government decided to remove the above benefit of reservation in promotion which was done in DOPT OM dated 29.12.2005. It is not known whether such procedure was 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. Further, any executive orders / instructions / rules issued against the law of the land is void. Due to the removal of reservation in promotion 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 across the country 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). 3) Relaxed standard for promotion in departmental promotion examination: Similarly, in the following instances, relaxation of standards has been extended to disabled on par with SCs/STs employees. While relaxation in standards is allowed to 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. (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. (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) and on the matter of Postal Department (Case No: 3810/2007 dated 17.08.2007). (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. 4) Justification for providing reservation and concession to disabled employees and repealing DOPT OM dated 29.12.2005: Government agencies and NGOs have a good number of statistics and data on the status of disabled persons in India. But it is not by furnishing various statistical figures and data but by common sense and common sight all over the country that the conditions of disabled are very poor comparing to other sections of the socially and economically weaker sections of the people particularly the SCs/STs. It is also a common scene that many of the disabled persons are abandoned even by their own family members and become beggars as they have no other options for their livelihood. There is no appropriate word to narrate the story of difficulties of the disabled persons in the society. Hence, in order to obviate their difficulties and lead a dignified life, reservation to disabled persons in Government service is required not only for Direct Recruitment but also for promotion for the welfare and empowerment of the persons with disabilities. The present social and political trends are very much becoming benevolent even to provide 33% reservation for non-disabled, like women. Accordingly, there is a greater justification for provision of reservation in both Direct Recruitment and promotion and other safe guards to the persons with disabilities than any other socially and economically backward classes like SCs, STs and Women who have amble chances, they are, atleast, physically and mentally fit. 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 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 orders issued on the subject, Government should consider repealing the para 2 of the above OM dated 29.12.2005 and restore earlier orders issued cited above for promotion to all the cadres from the date of effect of the above Act and suitably include 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. Repealing of the DOPT OM is necessitated due to the reasons not only to the reasons stated above but also 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 evident from the beginning para of the DOPT OM dated 29.12.2005 wherein even the spelling of the word ‘supersede’ is misspelled as ‘supercede’. Therefore, the DOPT OM dated 29.12.2005 should not be treated as superseded the earlier OMs issued on the subject and allow reservation in promotion in all the cadres in Government Service to disabled employees as in DOPT OM dated 16.01.1998. 5) Draft Disability Bill 2012: Meanwhile, the Department of Disability Affairs a newly carved out Department of Ministry of Social Justice and Empowerment has released “Draft Rights of Persons with Disabilities Bill, 2012 in their website. In the light of the above observations, adding fuel to the fire, the proposed law which seeks to repeal the Persons with Disabilities Act of 1995 and to replace it with a comprehensive rights based law in accordance with the provisions of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), claims to be submitted to the Parliament during the coming winter session, has gone not only against the interest of the disabled and Sudha Kaul’s Committees recommendations, with regard to employment despite existence of above justifications, but also against the purpose for which the Ministry of Social Justice & Empowerment was established. The Draft Bill 2012 has provided reservation only in Direct Recruitment instead of both Direct Recruitment and Promotion as against the provision of the present Act and recommendations of the Sudha Kaul Comittee. The following aspects which have been proposed in the Draft Disability Bill 2012 have gone against the interest of the disabled employees: i) Reservation in Government Service: The recommendations of Sudha Kaul Committee vide Section 57 of the Draft Bill 2011 recommended that all establishments shall reserve not less than 7% of all posts and in promotions for persons with disabilities. In contrast, Section 39(1) of the Draft Bill 2012 as published by the M/o SJ&E provides that 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. There is greater justification for provision of reservation both in direct recruitment and promotion to persons with disabilities than socially and economically backward class like SC, ST and Women who have amble chances they are atleast physically and mentally fit. While the present social and political trends are very much becoming benevolent even to provide 33% reservation for non-disabled, like women, it is not justifiable to deny reservation in promotion to disabled. The Sudha Kaul Committee taking into account the plight of the disabled employees, recommended reservation in promotion, after having deep and prolong discussion with various stakeholders all over the country. Several Hon’ble High Courts across the country have pronounced judgements favouring reservation in promotion to disabled employees in promotion. Hence, the recommendations of the Sudha Kaul Committee should be implemented in total. ii) Carry forward of reserved posts: The Sudha Kaul Committee vide Section 57(3), in all the probabilities, has not permitted to allow a reserved post to lapse for want of disabled man power. It recommended the establishment to identify, train and then induct persons with disabilities on the post recommended. In contrast, Section 39(2) of the Draft Bill 2012 as published by the M/o SJ&E provides that 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 recommendations of the Sudha Kaul Committee 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. (iii) Relaxed standard: Government of India provide for relaxed standard to disabled in case of recruitment and admission to educational on par with SCs/STs. The Sudha Kaul Committee has also recommended vide Section 49(2) relaxed standard for admission to educational institution. But the Draft Bill 2012 as published by the M/o SJ&E provides for no scope for the same. Relaxation of qualifying marks / standards has been allowed to SC/ST candidates in Departmental Promotion Examinations. While the physically challenged employees of the SCs/STs communities enjoy this benefit, the same is denied to other physically challenged employees. A greater justification exists as provided in para 3 above. Hence, an enabling provision should be made available in the Draft Disability Bill 2012. (iv) Provision against retrenchment of disabled employees: Section 56(2) and (3) of the Sudha Kaul Committee’s recommendations provide no scope for retrenchment of disabled employees including the Defence Forces to formulate a more beneficial employment retention and rehabilitation scheme for persons employed with the defense forces. In contrast, Section 25(3) of the Draft Bill 2012 as published by the M/o SJ&E provides the appropriate Government having regard to the type of work carried on in any establishment exempt any establishment from retention. 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. (v) Transfer: Section 56(6) of the Sudha Kaul Committee’s recommendations provides that 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. But the Draft Bill 2012 as published by the M/o SJ&E provides for no scope for the same. Statutory provisions 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. (vi) Taxes: Sudha Kaul Committee vide Section 131 recommended various tax exemptions to National Disability Rights Authority and State Disability Rights Authority. Draft Bill 2012 as published by the M/o SJ&E recommended for various tax exemptions in favour of Trusts. No individual with physical deformity has been recommended any kind of tax exemptions in both the bills. 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 their 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 persons 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. (vii) Political participation: The Sudha Kaul Committee vide Section 32 and the Draft Bill 2012 as proposed by the M/o SJ&E vide Section 19 speak about casting of votes by disabled persons. The disabled people want a political participation in real spirit in order to safeguard their interest stated in proceeding paragraphs. For these purpose, the following safeguards to be provided in the Draft Bill 2012. (i) 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. (ii) 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. The present social and political trends are very much becoming benevolent even to provide 33% reservation for non-disabled, like women. Accordingly, the persons with disabilities required reservation in the Bodies like Grama Panchayathi to Indian Parliament level. Since, the provisions made by the Ministry of Social Justice & Empowerment (whose purpose of establishing is empowering the persons with disabilities and other weaker sections of the society), in the Draft Disability Bill 2012 with regard to reservation in promotion and other related issues cited above are against empowerment of persons with disabilities, against the interest of the thousands of disabled employees across the country, 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 your goodselves, in the larger interest and welfare of the disabled community, to take up the matter personally so as to enable the thousands of disabled employees across the country not to loose their entitlements and rights but get their due rights, dignity and benefits but not mere mercy by suitably including the provision of reservation in both Direct Recruitment and Promotion and other concessions to disabled in the Draft Bill 2012. Yours sincerely, Sd/- Smt. G.A. KALAIVANI, Chennai. Copy to [email protected] [email protected] [email protected] Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
