It is learnt that the Draft Rights of Persons with Disabilities Bill, 2011 has been passed by the Cabinet and is to be introduced in Parliament. Section 39 of the said bill states 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 disabilities.
Recently, the Hon'ble Supreme Court in its judgment dated 08.10.2013 in Union of India &Anr. Vs. National Federation of Blind & Ors in the matter of Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil) No.7541 of 2009) has directed that the computation of reservation for persons with disabilities has to be computed in case of Group ‘A’, ‘B’, ‘C’ and ‘D’ posts in an identical manner viz., computing 3% reservation on total number of vacancies in the cadre strength which is the intention of the legislatures and accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are directed to be struck down and issue new Office Memorandum(s) in consistent with the decision rendered by the Court.
But, Government of India, Department of Personnel and Training (DOPT) wrongly interpreted the judgement of the Hon’ble Supreme Court and modified Para 14 of its OM dated 29.12.2005 vide its OM dated 03.12.2013 as follows:
"Reservation for PWD in Group 'A' or Group 'B' posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group A posts or Group 'B' posts respectively, in the cadre."
This is not in line with the directions rendered by Hon’ble Supreme Court of India as per the judgement cited. It can be seen from the fact that Hon’ble Supreme Court in its another judgement dated 10.12.2013 in SLP(C) 9473 in M.C.D. Vs. Shri Manoj Gupta has stated as follows:
“The controversy raised in the present special leave petition stands concluded by a recent decision of this Court in Union of India & Anr. Vs. National Federation of the Blind & Ors., 2013 (12) SCALE 588. Special leave petition is dismissed”.
Shri Manoj Gupta, a person with disability employed as an Assistant Engineer, a Group ‘B’ post, sought reservation to the promotional post.
The directions of Hon’ble Supreme Court have not been implemented correctly. As per the directions in Supreme Court judgements dated 08.10.2013 and sufficed in Supreme Court judgement rendered in Shri Manoj Gupta’s case dated 10.12.2013, the computation of reservation for persons with disabilities has to be computed in case of Group ‘A’, ‘B’, ‘C’ and ‘D’ posts not only in Direct Recruitment but also in promotion also. Citing the decision of the Supreme Court judgement dated 08.10.2013, the Bombay High court in its judgement dated 04.12.2013 stated that reservation has to be computed with reference to total number of vacancies in the cadre strength and therefore no distinction can be made between the posts to be filled in by direct recruitment and by promotion. Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion, the court further observed. Providing reservation only in the cadre of Direct Recruitment would not meet the spirit of the judgement dated 08.10.2013 and statutory requirement of 3% reservation as some of the cadres have the method of recruitment as promotion only which would result in shortfall of 3% reservation of a cadre. As such, the OM issued by DOPT dated 03.12.2013 has to be further modified accordingly incorporating that reservations for Persons with Disabilities be computed in both Direct Recruitment and in promotions in all Groups i.e., ‘A’, ‘B’, ‘C’ & ‘D’.
Further, it will thus be observed from the directions of the Hon’ble Supreme Court of India that Section 39 of the Rights of Persons with Disability Bill, 2012 should be suitably amended in such a manner that the directions of the Hon’ble Supreme Court are properly brought in the new Bill, 2012. It is worth mentioning here that the above directions have been delivered after almost 18 years of passing of the Persons with Disability Act, 1995. It is a very sad state of affairs that Persons with Disabilities had to undergo unnecessary hardships and seek justice through the Judiciary inspite of existence of necessary Office Memorandums issued by DOPT, GoI and statutory provisions.
Keeping in mind the existence of Office Memorandums issued by DOPT subsequent to enactment of the Persons with Disability Act, 1995 and directions issued by the Hon’ble Supreme Court and other Hon’ble High Courts, it would be highly unconstitutional and untenable if both the judgements are not taken into consideration for being incorporated in Section 39 of the new RIGHTS OF PERSONS WITH DISABILITIES BILL, 2012 before being placed in both the houses of Parliament AT THE TIME OF INTRODUCING THE NEW RIGHTS OF PERSONS WITH DISABILITIES BILL, 2012 IN THE PARLIAMENT OF INDIA.
It is, therefore, requested TO SUGGEST APPROPRIATE LEGAL ACTION TO PRESS THE M/O SJ&E FOR THE INCLUSION OF RESERVATION IN PROMOTION TO DISABLED GOVERNMENT EMPLOYEES IN THE NEW BILL, 2012 PROPOSED TO BE INTRODUCED IN PARLIAMENT.
