Thursday, October 17, 2013

Supreme Court of India allowed Reservation in jobs to persons with disability

Supreme Court directing the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions.


The bench headed by Chief Justice P Sathasivam while clarifying that the principle of not exceeding more than 50 per cent reservation would not be applicable while granting quota for disabled persons, has directed that authorities compile the number of vacancies in all their departments to give jobs to disabled persons under the three per cent reserved quota within three months.


Three per cent reservations in Group 'C' & 'D' posts have been in existence since 1977, even before the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force in 1996. The Act mandates that every appropriate government shall "appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disabilities……………. in posts identified for each disability".


However, this has been wrongly interpreted by governments to mean that these reservations are against "identified posts" only. Only around 10 per cent of the posts have been identified for employment of persons with disabilities.


Section 32 of the Act also mandates that governments "at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology".


However, the list of identified posts for persons with disabilities was last prepared by the Ministry of Social Justice and Empowerment in 2007. The fact that though more than six years have elapsed since the list was last revised, displays the utter callous and insensitive attitude of the government.


Unemployment among the disabled is as high as 66 per cent. Studies indicate that employment of disabled persons even in the government sector is as low as 0.5 per cent and in pubic sector industries it is 0.4 per cent only.


Reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible. (Para 30)


A perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part is "every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability." It is evident from this part that it mandates every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the Section. (Para 31)


It has also been submitted on behalf of the appellants herein that since reservation of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre strength according to the OM dated 29.12.2005 but the actual import of Section 33 is that it has to be computed against identified posts only. This argument is also completely misconceived in view of the plain language of the said Section, as deliberated above. Even, for the sake of arguments, if we accept that the computation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservation between Group A and B posts or Group C and D posts respectively. As such, one statutory provision cannot be interpreted and applied differently for the same subject matter.The Court directed the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default. (Para 38)


The court, however, have not specifically used any terms that this judgement is applicable for promotion. But the Court stated 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" Since the Court directed the Government to compute the number of vacancies available in all the establishments, I feel, if 3% reservation is applied only for Direct Recruitment and not for promotion where there is no mode of Direct Recruitment and only a method of filling up the post is available on promotion basis, the Government will have no option but to provide reservation in promotion also in order to achieve 3% reservation.


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