The apex court ruled that 3% reservations for persons with disabilities in government jobs are valid irrespective of how the post is filled.
New Delhi: Last week, the Supreme Court gave a judgment that will go a long way in making the senior echelons of our central government offices a bit more representative of persons with disability.
On June 30, the apex court, hearing two petitions, ruled that 3% reservation granted to persons with disabilities as per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 shall extend to all the posts and services under the government of India irrespective of the mode of filling such posts.
What does this ruling mean? The Centre can no longer deny persons with disabilities reservations at the senior level posts (Group A and B) using a 1997 rule that these positions can only be filled through promotion and not reservation as justification. In 2005, the Department of Personnel and Training (DoPT) reinstated a 1997 memorandum making a distinction between posts to be filled through direct recruitment and promotion. These rules meant reservations for persons with disabilities were only applicable to lower level jobs (Group C and D). However, the Supreme Court order has now overturned these rules.
“The DoPT’s distinction led to stagnation of persons with disabilities in their jobs. They could get jobs at the entry level but would remain in the lower levels of organisational hierarchy simply because for promotion to the senior levels, they had to fulfil the general criteria. Fulfilling those criteria were difficult because of their physical disadvantage. This June 30, the SC set aside those memoranda stating that once a post is identified for a person with a disability, it must be reserved for them irrespective of the mode of recruitment adopted by the state for filling up of the said post,” explained lawyer Rajan Mani of the Disability Law Initiative (DLI).
Mani told The Wire, “The ruling is significant because it will now allow persons with disabilities to go up to the senior level in central government jobs.”
Mani, on behalf of the New Delhi-based organisation, along with the Human Rights Law Network (HRLN), represented petitioners Rajiv Kumar Gupta and seven other disabled persons serving as engineers in Prasar Bharti in the case. The petitioners challenged the recruitment rule operative in that central government entity.
According a press note jointly released by DLI and HRLN on the judgement, the government of India defended its decision by citing an earlier ruling given by the apex court – in the 1992 Indira Sawhney case – where the court said reservations should be confined to the recruitment level and not at the stage of promotions.
However, the Supreme Court set aside the contention, stating, “The basis for providing reservations for persons with disabilities is physical disability and not any of the criteria forbidden under article 16(1) such as caste, religion, etc. The objective behind the 1995 Act is to integrate persons with disabilities into the society and to ensure their economic progress…persons with disabilities are not and cannot be equated with backward classes contemplated under article 16(4).” As per article 16, the state can recommend preferential treatment to certain classes in matters of employment.
The June 30 ruling underlined, “It would be a device to defraud PWD (persons with disabilities) of the statutory benefit. Once a post is identified (done as per Section 32 of the Act), it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than 3 per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”
Commenting on the ruling, Supreme Court lawyer S.K. Rung said, “Though persons with disabilities in India got a piece of law to guard their rights way back in 1995, they have been facing conditions thereon where the government itself looks for loopholes in it to refuse them their privileges. It is shameful that the government questioned its own law. I am thankful to the Supreme Court for showing it the right way.”
Rungta, the only visually challenged senior lawyer to practice in the apex court, was the first to knock on the doors of a court to demand implementation of the 3% reservation in government jobs in accordance the Act. “Unhappy with the non-implementation of the provision given to the persons with disabilities by the Act, I (on behalf of the National Federation of the Blind) filed a Public Interest Litigation (PIL) in the Delhi High Court in 2006. The PIL highlighted the discrimination subjected to the blind and people with low vision in the recruitment process for government posts in violation of section 33 of the Act. The high court gave the ruling in our favour. The government of India, however, challenged it in the Supreme Court, which in 2013, upheld the Delhi high court order ruling that there should be 3% reservation for persons with disabilities in both central and state government jobs as per section 33. Subsequently, in 2014, hearing another petition, the Supreme Court yet again ruled in favour of a minimum of 3% reservation for persons with disabilities in all central and state government jobs,” remembers Rungta.
The June 30 ruling, he said, “is a much called for step forward as it brings a lot of clarity on section 33.”
So, does this mean all the creases relating to reservations for persons with disabilities in government jobs have been ironed out?
“Not yet. Yet another petition (by Bhanu Pratap and others against the state of Uttar Pradesh) is awaiting a hearing at the Supreme Court. It will bring more clarity on promotions in state government jobs for the persons with disabilities. I will be arguing the case; hopefully, it should come up by the next week,” he said.