Adjustment of employees acquiring disability against the reserved quota for PWD

Dear Colleagues,

A disturbing trend has come to our notice. Many government departments are trying to dodge the mandate of The Persons with Disabilities (Equal opportunity, protection of rights and full participation) Act 1995 by adjusting the employees who acquire the disability while in service (and remain protected by virtue of Section 47 of the Persons with Disabilities Act) against the minimum 3% reserved quota of persons with disabilities.

This has been practiced silently in the Indian Railways and several other departments. This nullifies the overall objective of 3% reservation as per Section 33 of the Persons with Disabilities Act 1995. 

Earlier, the government departments were reluctant to give the benefit of reservation in promotion or new appointment to those who became disabled while in service. However, the DOPT vide its Memo F.No.36035/3/2009-Estt.(Res.) dated 10th June, 2009 sought to curb this discrimination with the employees with disabilities. But the department has started using this memo now to silently adjust the Section 47 protected employees against the reserved vacancies sought to be filled by other candidates.

The Memo is reproduced below for your information. The same is also available at the link: http://circulars.nic.in/WriteReadData/CircularPortal/D2/D02adm/36035_3_2009-Estt.(Res).pdf

F.No.3603 5/3/2009-Estt.(Res.)

Government of India

Ministry of Personnel, Public Grievances & Pensions

Department of Personnel & Training

North Block

New Delhi, dated loth June, 2009

Subject: Benefit of reservation to persons with disability who acquire disability after entering into Govt. service.

The undersigned is directed to say that various Ministries/Departments have been seeking clarification whether a person who acquires disability after entering into Govt. service shall get the benefit of reservation in services as provided in this Department's OM No.36035/3/2004-Estt.(Res.) dated 29.12.2005.

2. It is hereby clarified that the OM dated 29.12.2005 does not make any distinction between persons acquiring disability before or after entering into service. An employee who acquires disability after entering into service will be entitled to get the benefit of reservation as a person with disability as provided in the instructions contained in the above referred OM from the date he produces a valid certificate of disability.

3. All Ministries/Departments etc. are requested to bring it to the notice of all establishments under their control.

Sd/-

(Krishan Gopal Verma)

Director

The language is ambiguous in the Memo and doesn't clarify that the section 47 protected employees can not be adjusted against the reserved vacancies for the disabled unless such a person is also an applicant for recruitment to the reserved vacancies (higher in rank than their present rank).

The departments have been adjusting such employees against the reserved quota of persons with disabilities from the date they produce their disability certificate. The information is never leaked out. The employee being adjusted do not raise voice for it doesn't affect them. Those who get affected are outside the system in the open market hence would never come to know about it.

I have also learnt that the Railways have been adjusting "Compassionate Ground Appointees" (disabled son/daughter/dependent family member appointed in case of death of serving/retired railway employee) against the quota of reserved posts for persons with disabilities.

This practice is wrong, unethical and should be stopped. The DoPT must clarify this issue and direct the concerned ministries and departments to implement the mandate of The Persons with Disabilities Act in right earnest.

regards

Subhash Chandra Vashishth

Advocate