DoPT Proposes to Revise Reservation Policy for Persons with Disabilities: seeks suggestions

Dear colleagues,

Ever since the enactment of the Rights of Persons with Disabilities Act 2016, particularly after it was brought in to effect on 19th April, 2017, lot of concerns have been raised by the stakeholders, various High Courts and the Supreme Court of India as to how the existing policy framework will be tuned to the requirements of the new Act. The pace has been very slow warranting the courts to issue directives. 

After the new Act, several new disabilities have been added in to the list who could now claim rights of reservations in jobs and reasonable accommodations for them to be able to perform jobs on an equal basis with others. The DoPT, which is cadre controlling authority for central civil services and other allied services has put out a notice dated 20 June 2017 seeking suggestions on the comprehensive memorandum on implementing reservations for persons with disabilities.

The notification and the draft memorandum on the subject are pasted below in accessible format for general information. It can also be directly accessed in PDF format from the link: Notification seeking suggestions dt 20.06.2017

No.36035/02/2017-Estt (Res) 

Government of India 

Ministry of Personnel, Public Grievances & Pensions 

Department of Personnel & Training

North Block, New Delhi

Dated : 20.06.2017

OFFICE MEMORANDUM

Sub: Reservation for Persons with Benchmark Disabilities – Suggestions; if any, from all concerned including general public.

The undersigned is directed to enclose a copy of draft instructions bringing them in line with THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016' with regard to reservation for Persons with Benchmark Disabilities in the posts/services Under the Central Government.

2. The issue of reservation in promotion for persons with Disabilities is sub-judice in various cases in the Hon’ble Supreme Court including Civil Appeal No.1567/2017 titled Siddaraju Vs State of. Karnataka & Ors and Review Petition (C) No.36/2017 tagged with it.

3.It is requested that the draft instructions may be examined and suggestions, if any, may be sent to this Department within 15 days of the issue of this Office Memorandum through e-mail only at q.sreenivasannic.in and debabrata.d13nic.in

(Raju Sarawat)

Under Secretary to the Govt.of India.

Tel No : 011-23040279

011-23093074

---------------------

No.36035/02/2017-Estt (Res) 

GOVERNMENT OF INDIA 

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS 

DEPARTMENT OF PERSONNEL & TRAINING

North Block, New Delhi

Dated  the June,2017

DRAFT OFFICE MEMORANDUM

Subject: Reservation for the Persons with Benchmark Disabilities – reg.

With the notification of ‘THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016’ on 28th December, 2016, which took effect from 19th day of April, 2017, the following instructions are issued in line with the provisions made in this Act regarding reservation for Persons with Benchmark Disabilities in the posts/services of the Central Government. Notwithstanding anything contained in the earlier instructions issued so far on the subject, the following instructions shall prevail in case of any contradiction with previous instructions issued so far.

2. QUANTUM OF RESERVATION

(i)  In case of direct recruitment, four per cent of the total number of vacancies in the cadre strength in each group of posts i.e A, B, C and D shall be reserved for persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent, for persons with benchmark disabilities under clauses (d) to (e), namely:-

• blindness and low vision;
• deaf and hard of hearing;
• locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attacks victims and muscular dystrophy;
• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness, 

in the posts identified for each disabilities.

(ii)  In case of promotion, four per cent of total number of vacancies in the cadre strength in each group of posts i.e Group D and C posts, in which the element of direct  recruitment if any, does not exceed 75%, shall be reserved for Persons with Benchmark Disabilities of which one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one  per cent, for persons with benchmark disabilities under clauses (d) to (e), namely:-

• blindness and low vision;
• deaf and hard of hearing;
• locomotor disability including cerebral palsy, leprosy cured,dwarfism, acid attacks victims and muscular dystrophy;
• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness,

in the posts identified for each disabilities.

3. EXEMPTION FROM RESERVATION:

If any Department/Ministry in the Central Government considers it necessary to exempt any establishment partly or fully from the provisions of reservation for persons with benchmark disabilities, it shall make a reference to the Department of Empowerment of Persons with Disabilities giving full justification for the proposal, who having regard to the type of work carried out in any Government establishment by notification and subject to such condition, if any, as may be specified in the notification, in consultation with the Chief Commissioner of Persons with Disabilities (CCPD) may exempt any Establishment from the provisions of reservation for persons with benchmark disabilities.

4. IDENTIFICATION OF JOBS /POSTS: The Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with benchmark disabilities and the physical requirement for all such jobs/posts vide their Notification No.16-15/2010-DD-III dated 29th July, 2013. The jobs /posts given in Annexure C of the said notification to be amended from time to time shall be used to give effect to four per cent reservation to the persons with benchmark disabilities. It may, however, be noted that:

• The nomenclature used for any job/ post shall mean and include nomenclature used for other comparable jobs/posts having identical functions.
• The list of jobs/posts notified by the Department of Empowerment of. Persons with Disabilities is not exhaustive. The concerned Ministries/ Departments shall have the discretion to identify jobs / posts in addition to the jobs/ posts already identified by Department of Empowerment of Persons with -Disabilities. However, no Ministry/Department/Establishment shall exclude any identified job/post from the purview of reservation at its own discretion.
• If a job/ post identified for persons with benchmark disabilities is shifted from one group or grade to another group or grade due to change in the pay-scale or otherwise, the job/ post shall remain identified.

5. RESERVATION IN POSTS IDENTIFIED FOR ONE OR TWO OR MORE CATEGORIES:

If a post is identified suitable only for one category of benchmark disability, reservation in that post shall be given to that category of persons with that benchmark disability only. Reservation of 4% shall not be reduced in such cases and total reservation in the post will be given to persons suffering from that benchmark disability for which it has been identified. Likewise in case the post is identified suitable for two or more categories of benchmark disabilities, —reservation shall be distributed between persons with those categories of benchmark disabilities equally, as far as possible. It shall, however, be ensured that reservation in different posts in the establishment is distributed in such a way that the persons of all categories of benchmark disabilities, as far as possible, get representation to the posts identified for them.

6. APPOINTMENT AGAINST UNRESERVED VACANCIES:

In the posts which are identified suitable for persons with disabilities, a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy, Thus a person with disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with disability of the relevant category.

7. ADJUSTMENT OF CANDIDATES SELECTED ON THEIR OWN MERIT:

In the posts which are identified suitable for persons with benchmark disabilities, a person with benchmark disability cannot be denied the right to compete for appointment against an unreserved vacancy. Thus a person with benchmark disability can be appointed against an unreserved vacancy, provided the post is identified suitable for persons with benchmark disability of the relevant category.

Persons with benchmark disabilities selected on their own merit without relaxed standards along with other candidates, will not be adjusted against the reserved share of vacancies. The reserved vacancies will be filled up separately from amongst the eligible candidates with benchmark disabilities which will thus comprise persons with benchmark disability candidates who are lower in merit than the last candidate in merit list but otherwise found suitable for appointment, if necessary, by relaxed standards. It will apply in case of direct recruitment as well as promotion, wherever reservation for persons with benchmark disabilities is admissible.

8. SPECIFIED DISABILITY:

Following are the specified disabilities for the purpose of applicability of reservation for Persons with Benchmark Disabilities:

1. Physical disability:-

A. Visual impairment-

(a) “blindness” means a condition where a person has any of the following conditions, after best correction-

(i)   total absence of sight; or

(ii)  visual acuity le.ss than 3/60 or less than 10/200 (Suellen} in the better eye with best possible correction; or

(iii)    limitation of the field of vision subtending an angle of less than 10 degree,

(b) “low-vision” means a condition where a person has any of the following conditions, namely:-

(i)  visual acuity not exceeding 6/18 or less than 20/60 upto 3/60 or upto 10/200 (Snellen) in the better eye with best possible corrections; or

(ii)    limitation of the field of vision subtending an angle of less than 40 degree up to 10 degree.

B. Hearing impairment-

• “deaf” means persons having 70 DB hearing loss in speech frequencies in both ears;
• “hard of hearing” means person having 60 DB to 70 DB hearing loss in speech frequencies in both ears;

C. Locomotor disability (a person’s inability to execute distinctive activities associated with movement of self and objects resulting from affliction of musculoskeletal or nervous system or both), including-

(a) “leprosy cured person” means a person who has been cured of leprosy but is suffering from-

(i) loss of sensation in hands or feet as well as loss of sensation and paresis in the eye and eye-lid but with no manifest deformity;

(ii) manifest deformity and paresis but having sufficient mobility in their hands and feet to enable them to engage in normal economic activity;

(iii) extreme physical deformity as well as advanced age which prevents him/her from undertaking any gainful occupation,and the expression “leprosy cured” shall construed accordingly;

(b) “cerebral palsy” means a Group of non-progressive neurological condition affecting body movements and muscle coordination, caused by damage to one or more specific areas of the brain, usually occurring before, during or shortly after birth;

(c) “dwarfism” means a medical or genetic condition resulting in an adult height of 4 feet 10 inches (147 centimeters) or less;

(d) “muscular dystrophy” means a group of hereditary genetic muscle disease that weakens the muscles that move the human body and persons with multiple dystrophy have incorrect and missing information in their genes, which prevents them from making the proteins they need for healthy muscles. It is characterised by progressive skeletal muscle weakness, defects in muscle proteins, and the death of muscle cells and tissue;

(e)  “acid attack victims”  means a person disfigured due to violent assaults by throwing of acid or similar corrosive substance.

D. Intellectual disability, a condition characterised by significant limitation both in intellectual functioning (rasoning, learning, problem solving) and in adaptive behaviour which covers a range of every day, social and practical skills, including-

(a) “specific learning disabilities” means a heterogeneous group of  conditions wherein there is a deficit in processing language, spoken or written, that may manifest itself as a difficulty to comprehend, speak, read, write, spell, or to do mathematical calculations and includes such conditions as perceptual disabilities, dyslexia, dysgraphia, dyscalculia, dyspraxia and developmental aphasia;

(b)”autism spectrum disorder” means a neuro-developmental condition typically appearing in the first three years of life that significantly affects a person’s ability to communicate, understand relationships and relate to others, and is frequently associated with unusual or stereotypical rituals or behaviours.

Mental behaviour-

“mental illness” means a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment,behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but does not include retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence.

E. Multiple Disabilities (more than one of the above specified disabilities) including deaf blindness which means a condition in which a person may have combination of hearing and visual impairments causing severe communication, developmental, and educational problems.

9. DEGREE OF DISABILITY FOR RESERVATION: Only “person with benchmark disability” would be eligible for reservation in posts/services with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. A person who wants to avail of benefit of reservation will have to submit a Disability Certificate issued by a Competent Authority.

10. Application for disability certificate

(1) Any person with specified disability may apply in FORM–I for a disability certificate either online through Unique Disability Identity Portal (www.swavlambancard.gov.in) or submit the physical application to –

(a) a medical authority or any other notified competent authority to  issue such a certificate in the district of the applicant’s residence as mentioned in the proof of residence in the application; or

(b) the concerned medical authority in a government hospital where he may be undergoing or may have undergone treatment in connection with his disability:

Provided that where a person with disability is a minor or suffering from intellectual disability or any other disability which renders him unfit or unable to make such an application himself, the application on his behalf may be made by his legal guardian.

(2) The application shall be accompanied by-

• proof of residence;
• two recent passport size photographs; and
• aadhar number or aadhar enrolment number, if any
• No other proof of residence shall be required from the applicant who has aadhar enrolment number.

11. Issue of disability certificate

(i)   On receipt of an online application as mentioned above, the medical authority shall, verify the information as provided by the applicant and shall assess the disability in terms of the relevant guidelines issued by the Central Government and after satisfying himself that the applicant is a person with disability, issue a disability certificate in his favour through the UDID portal.

Provided that the State Governments or UT Administration shall continue to issue certificate of disability manually for a period of six months.

(ii)For applications other than online mode, the medical authority shall ensure that application is converted to the online mode and shall follow the same procedure as mentioned above for issuing of disability certificate.

(iii) The disability certificate shall be issued within a month from the date of receipt of the application by the medical authority.

(iv) The medical authority shall, after due examination –

(a) Issue a permanent disability certificate in cases where there are  no chances of variation over time in the degree of disability; or

(b) give a temporary disability certificate and indicate the period  of validity in the certificate, in cases where there is any chance of variation over time in the degree of disability.

(v) If an applicant is found ineligible for issue of disability certificate, the medical authority shall convey the reasons to him in writing under FORM–II within a period of one month from the date of receipt of the application.

12. At the time of initial appointment and promotion against a vacancy reserved for persons with benchmark disabilities, the appointing authority shall ensure that the candidate is eligible to get the benefit of reservation.

13. COMPUTATION OF RESERVATION:

Reservation for persons with benchmark disabilities in case of Group C and Group D posts shall- be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group ‘C’ posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group ‘C’ posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group ‘D` posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group ‘C’ and Group ‘D’ posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it is possible that number of persons appointed by reservation in an identified post may exceed four per cent.

14. Reservation for persons with benchmark disabilities in Group ‘A’ or Group ‘B’ posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in the cadre in all the Group A posts or Group ‘B’ posts respectively, and the computation of total vacancies shall include vacancies arising in the identified and non-identified posts.

15 EFFECTING RESERVATION – MAINTENANCE OF ROSTERS:

(a) Every Government establishment shall maintain separate 100 point vacancy based reservation roster registers in the format given in Annexure A for determining/effecting reservation for the Persons with Benchmark Disabilities – one each for Group ‘A’ posts filled by direct recruitment, Group ‘B’ posts filled by direct recruitment, Group ‘C’ posts filled by direct recruitment, Group ‘C’ posts filled by promotion, Group ‘D’ posts filled by direct recruitment and Group ‘D’ posts filled by promotion.

(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into four blocks, comprising the following points:

1st Block – point No.1 to point No.25

2nd Block – point No. 26 to point No.50

3rd Block – point No.51 to point No. 75

4th Block – point No.76 to point No.100

(c) Points 1, 26, 51. and 76 of the roster shall be earmarked reserved for persons with benchmark disabilities – one point for each of the four categories of disabilities. The Head of the establishment shall ensure that vacancies identified at SI. No.1, 26, 51 and 76 are earmarked for the respective categories of the persons with benchmark disabilities. However, the Head of the establishment shall decide the placement of the selected candidate in the roster register.

(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the vacancy falling at point no. 1 is not identified for the Person with Benchmark Disability or the Head of the establishment considers it desirable not to fill it up by Persons with Benchmark Disabilities a disabled person or it is not possible to fill up that post by the Persons with Benchmark Disabilities for any other reason, one of the vacancies falling at any of the points from 2 to 25 shall be treated as reserved for the disabled and filled as such.

Likewise, a vacancy falling at any of the points from 26 to 50 or from 51 to 75 or from 76 to 100 shall have to be filled by the Persons with Benchmark Disabilities. The purpose of keeping points 1, 26, 51 and 76 as reserved is to fill up the first available suitable vacancy from 1 to 25, first available suitable vacancy from 26 to 50, first available suitable vacancy from 51 to 75 and first available suitable vacancy from 76 to 100 by persons with benchmark disabilities.

(e)There is a possibility that none of the vacancies from 1 to 25 is suitable for any category of the Person with Disability. In that case two vacancies from 26 to 50 shall be filled as reserved for persons with disabilities. If the vacancies from 26 to 50 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 51 to 75. This means that if no vacancy can be reserved in a particular block, it shall be carried over into the next block

(f)After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.

(g) If the number of vacancies in a year is such as to cover only one block (say 25 vacancies) or two (say 50 vacancies), the category of the disabled should be accommodated as per the roster points. However, in case the said vacancy is not identified for the respective category, the Head of the establishment shall decide the category on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc.

(h)A separate roster shall be maintained for group C posts – one for the posts filled by direct recruitment and another for posts filled by promotion. Likewise, two separate rosters shall be maintained for Group D posts.

(I) Reservation for persons with disabilities 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, and the computation of total vacancies shall include vacancies arising in the identified and non-identified posts in the cadre. Separate rosters for Group ‘A’ posts and Group ‘B’ posts in the establishment shall be maintained.”

16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT:

(a) Reservation for each of the categories of persons with benchmark disabilities identified for reservation shall be made separately. If the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the categories identified for reservation. However, the Head of the establishment shall ensure that the reasons for interchange may be recorded in writing before effecting the same.

(b)Where tn any recruitment year any vacancy cannot be filled up due to non availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the identified categories for reservation purpose and only when there is no person with disability available for the post in that year, the ’employer shall fill up the vacancy by appointment of a person, other than a person with disability. The Government establishment shall interchange vacancies only if due process of recruitment to fill up the vacancies meant for persons with benchmark disabilities has been complied with.

(c) If any vacancy reserved for any category of benchmark disability cannot be filled due to non-availability of a suitable person with that benchmark disability or, for any other sufficient reason, such vacancy shall be carried forward as a ‘backlog reserved vacancy’ to the subsequent recruitment year.

In the subsequent recruitment year the ‘backlog reserved vacancy’ shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that benchmark disability is not available, it may be filled by interchange among the categories of benchmark disabilities identified for reservation. In case no suitable person with benchmark disability is available for filling up the vacancy in the succeeding year also, the employer may fill up the vacancy by a person other than a person with benchmark disability. If the vacancy is filled by a person with benchmark disability of the category for which it was reserved or by a person of other category of benchmark disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with benchmark disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year.

17. In order to ensure that cases of lapse of reservation are kept to the minimum, any recruitment of the disabled candidates shall first be counted against the additional quota brought forward from previous years, if any, in their chronological order. If candidates are not available for all the vacancies, the older carried forward reservation would be filled first and the current vacancies would be carried forward if not filled up.

18. CONSIDERATION ZONE, INTERSE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF PROMOTION

(a)  While filling up the reserved vacancies in Group C or Group D by promotion by selection, if any, the candidates with benchmark disabilities, who are within the normal zone of consideration, shall be considered for promotion. Where adequate numbers of the candidates with benchmark disabilities of the appropriate category of disability are not available within the normal zone, the zone of consideration may be extended to five times the number of vacancies and the candidates with Benchmark disabilities falling within the extended zone may be considered. In the event of non-availability of candidates even in the extended zone, the reservation can be exchanged so that vacancy can be filled by a person with other category of benchmark disability, if possible. If it is not possible to fill up the post by reservation, the vacancy in the post may be filled by a person other than a Person with Benchmark disability and the reservation shall be carried forward for upto three subsequent recruitment years, whereafter it shall lapse.

(b) In posts filled by promotion by non-selection in Group C or Group D, the eligible candidates with benchmark disabilities shall be considered for promotion against the reserved vacancies and in case no eligible candidate of the appropriate category of disability is available, the vacancy can be exchanged with other categories of benchmark disabilities identified for it. If it is not possible to fill up the post by reservation even by exchange, the reservation shall be carried forward for upto three subsequent recruitment years, whereafter it shall lapse.

19. HORIZONTALITY OF RESERVATION FOR PERSONS WITH BENCHMARK DISABILITIES:

Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with benchmark disabilities and ex-servicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and persons selected against the quota for persons with benchmark disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with benchmark disabilities and out of two persons with benchmark disabilities appointed, one belongs to a Scheduled Caste and the other to general category, then the benchmark disabilities SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate with benchmark disability against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the benchmark disability candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs.

20. Since the persons with benchmark disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General in the roster meant for reservation of SCs/STs/OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with benchmark disabilities to indicate whether they belong to SC/ST/OBC or General category.

21. RELAXATION IN AGE LIMIT:

(i)  Upper age limit for persons with benchmark disabilities shall be relaxable (a) by ten years (15 years for SCs/STs and 13 years for OBCs) in case of direct recruitment to Group ‘C’ and Group ‘D’ posts; (b) by 5 years (10 years for SCs/STs and 8 years for OBCs) in case of direct recruitment to Group ‘A’ and Group ‘B’ posts where recruitment is made otherwise than through open competitive examination; and (c) by 10 years (15 years for SCs/STs and 13 years for OBCs) in case of direct recruitment to Group A and Group B posts through open competitive examination.

(ii)  Relaxation in age limit shall be applicable irrespective of the fact whether the post is reserved or not, provided the post is identified suitable for persons with benchmark disabilities.

22. RELAXATION OF STANDARD OF SUITABILITY:

If sufficient number of person with benchmark disabilities candidates is not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to this category may be selected on relaxed standard to fill up the remaining vacancies reserved for them provided they are not found unfit for such post or posts. Thus, to the extent the number of vacancies reserved for persons with benchmark disabilities cannot be filled on the basis of general standards, candidates belonging to this category may be taken by relaxing the standards to make up the deficiency in the reserved quota subject, to the fitness of these candidates for appointment to the post/posts in question.

23. MEDICAL EXAMINATION:

As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of fitness issued by a competent authority. In case of medical examination of a person with benchmark disabilities for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with benchmark disabilities of the relevant category and the candidate shall then be examined medically keeping this fact in view.

24. EXEMPTION FROM PAYMENT OF EXAMINATION FEE AND APPLICATION FEE:

Persons with benchmark disabilities shall be exempted from payment of application fee and examination fee, prescribed in respect of competitive examinations held by the Staff Selection Commission, the Union Public Service Commission etc. for recruitment to various posts. This exemption shall be available only to such persons who would otherwise be eligible for appointment to the post on the basis of standards of medical fitness prescribed for that post (including any concession specifically extended to the persons with benchmark disabilities) and who enclose disability certificate from a competent authority with the application form in support of their claim of disability.

25. NOTICE OF VACANCIES:

In order to ensure that persons with benchmark disabilities get a fair opportunity in consideration for appointment to a vacancy in an identified post, the following points shall be kept in view while sending the requisition notice to the SSC, the UPSC etc. and while advertising the vacancies:-

(i) Number of vacancies reserved for SC/ST/OBC/Ex-servicemen/Persons with Benchmark Disabilities should be indicated clearly. As regards Persons with Benchmark Disabilities, the vacancies shall be further reported separately for the following four categories of benchmark disabilities.

First category

• blindness and low vision;

Second category.

• deaf and hard of hearing;

Third category

• locomotor disability including cerebral palsy, leprosy cured,
• dwarfism, acid attacks victims and muscular dystrophy;

Fourth category

• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness,

in the posts identified for each disabilities.

(ii)      In case of vacancies in posts identified suitable to be held by persons with benchmark disabilities, it shall be indicated that the post is identified for: –

First category

• blindness and low vision;

Second category

• deaf and hard of hearing;

Third category

• locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attacks victims and muscular dystrophy;

Fourth category

• autism, intellectual disability, specific learning disability and mental illness;
• multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness,

in the posts identified for each disabilities, as the case may be, and that the persons with benchmark disabilities belonging to the category/categories for which the vacancy in the post is identified shall be allowed to apply even if no vacancies are reserved for them. Such candidates will be considered for selection for appointment to the post by general standards of merit, if the post identified suitable for them.

(iii) In case of vacancies in posts identified suitable for persons with benchmark disabilities, irrespective of whether any vacancies are reserved or not, the categories of disabilities viz

• blindness and low vision;
• deaf and hard of hearing;
• locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attacks victims and muscular dystrophy;
• autism, intellectual disability, specific learning disability and mental illness;
• multiple disability from amongst persons under clauses (a) to (d) including deaf-blindness,

for which the post is identified suitable alongwith functional classification and physical requirements for performing the duties attached to the post shall be indicated clearly.

(iv) It shall also be indicated that the above-mentioned four categories of persons with benchmark disabilities shall alone be eligible for the benefit of reservation under the category of persons with benchmark disabilities. Persons with benchmark disabilities means a person with not less than forty percent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.

26. Notification of vacancies to the Special Employment Exchange:–

(i) The following vacancies shall be notified by the establishments to the special employment exchange namely:-

(a) vacancies in posts of a technical and scientific nature carrying a basic pay in Level 6 or more per month occurring in Central Government establishments; and

(b)  vacancies which the employer of the Central Government establishment may circulate to the special employment exchange outside the State or Union territory in which the establishment is situated, as may be notified in the Official Gazette.

(ii) The Government establishment shall send the copy of the notification of vacancies to the concerned Vocational Rehabilitation Centre for persons with disabilities.

(iii) The vacancies other than those specified in sub-rule (1) shall be notified to the local special employment exchange concerned and the Government establishment shall send a copy of the notification of vacancies to the concerned Vocational Rehabilitation Centre for persons with disabilities.

27. Form and manner of notification of vacancies to the Special Employment Exchange:-

(1) The Government establishment shall notify the vacancies in writing to the concerned special employment exchange, and furnish the following particulars in respect of each type of vacancy, namely:-

(a) Name and address of the employer;

(b) Telephone number of the employer;

(c)   Nature of vacancy, namely;-

(i)  Designation of workers required;

(ii)  Description of duties

(iii)   Physical requirements for the job, namely, visual accuracy, frequent movement or walking, continuous long hours sitting and other physical requirements;

(iv)  Qualification requirements, namely:-

i. essential;

ii. desirable;

(v)   Age limit, if any;

(vi)  Whether women are eligible?

(d)  number of vacancies reserved for persons with disabilities, that is, persons with physical, visual, hearing, intellectual and mental illness-

(i)  regular;

(ii) temporary;

(e)   pay and allowances;

(f)  place of work, that is, name of town and village and district in which it is situated;

(g)  probable date by which the vacancy will be filled;

(h)  particulars regarding interview/test of applicants, namely;-

(i)   date of interview or test;

(ii) time of interview or test;

(iii) place of interview or test;

(iv) designation and address of the person to whom applicants should report;

(v) any other relevant information,

(2) The appropriate Government shall re-notify the vacancies to the concerned special employment exchange, if there is any change in the particulars already furnished to the special employment exchange and vocational rehabilitation centre for persons with disabilities under this rules.

28. Time limit for the notification of vacancies:–

(i) The vacancies, required to be notified to the local special employment exchange, shall be notified at least thirty days before the date on which the applicants are to be interviewed or tested, where interview or test held, or the date on which vacancies are intended to be filled, if no interview or test is held.

(ii) An employer of the Government establishment shall furnish to the concerned special employment exchange, the result of the selection within fifteen days from the date of selection.

29. Submission of Returns:–

(i) An employer of the Government establishment shall furnish to the local special employment exchange returns once in every three months in Form PDER-I and once in every two months in Form PDER­- II.

(ii) The return shall be furnished within thirty days of the respective dates that is, 31st March, 30th June, 30th September and 31st December.

(iii)The two months return shall be furnished within thirty days of the due date as may be notified by the appropriate Government in the Official

30. Form in which record to kept by en employer:–

Every employer of the Government establishment shall maintain the record of employees with disabilities in Form PDER III.

31.CERTIFICATE BY REQUISITIONING AUTHORITY:

In order to ensure proper implementation of the provisions of reservation for persons with benchmark disabilities, the requisitioning authority while sending the requisition to the UPSC, SSC etc. for filling up of posts shall furnish the following certificate to the recruiting agency:-

“It is certified that the requirements of the THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016′ on 28th December, 2016, which took effect from 19th day of April, 2017 and the policy relating to reservation for persons with benchmark disabilities has been taken care of while sending this requisition. The vacancies reported in this requisition fall at points no  of cycle no  of 100 point reservation roster out of which  number of vacancies are reserved for persons with benchmark disabilities.”

32. ANNUAL REPORTS REGARDING REPRESENTATION OF PERSONS WITH BENCHMARK DISABILITIES:

(i) The Ministries/Departments shall continue to upload data on representation of Persons with Benchmark Disabilities along with data on SCs, STs, OBCs in respect of posts/services under the Central Government on the URL i.e, rrcps.nic.in as on 1st January of every year. All Ministries/Departments have been provided respective usercocle and password with guidelines for operating the URL.

(ii)Soon after the 1st January of every year, each appointing authority shall send on-line data relating to Persons with Disabilities along with SCs, STs and OBCs to its administrative Ministry/Department, which shall scrutinize the information received from all appointing authorities under it and upload the same on the URL. Ministry/Department shall consolidate information in respect of all attached and subordinate offices under its administrative control and submit the same through the URL to the Department of Personnel and Training immediately. The hardcopy of data uploaded on the URL need not to be sent to Department of Personnel and Training.

(iii)The following points may be kept in view while uploading the data on the URL:-

(a) The data sent to the DOPT should not include information in respect of public sector undertakings, statutory, semi-Government and autonomous bodies. Statutory, semi-Government and autonomous bodies which shall furnish consolidated information to the administrative Ministry/Department concerned, who may scrutinize, monitor and maintain it at their own level.

(b) The attached/subordinate offices shall send data to their administrative Ministry/Department only through the URL and shall not send it directly to the DOPT.

(c)The figures in respect of Persons with benchmark Disabilities shall include persons appointed by reservation as well as appointed otherwise.

(d)The data relates to persons and not to posts. Therefore, while furnishing data, the posts lying vacant etc. should not be taken into Persons on deputation should be included in the establishment of the borrowing Ministry/Department/Office and not in the parent establishment. Persons permanent in one grade but officiating or holding temporary appointment in the higher grade shall be included in the figures relating to the Class of service to which the higher grade belongs.

33. Grievance Redressal Mechanism:

(1) Every Government establishment shall appoint one or more Grievance Redressal Officer not below the rank of a Gazetted Officer:

Provided that where it is not possible to appoint any Gazetted Officer, an officer of reasonable seniority shall be appointed as a Grievance Redressal Officer.

(2)The grievance redressal officer shall maintain a register of complaints and soft copy specifically maintained for the purpose and separate page shall be allotted for each complaint.

(3)The grievance redressal officer shall record the following particulars in the register, namely:-

• date of complaint;
• name of complainant;
• name of the person who is enquiring the complaint;
• place of incident;
• the name of the establishment or person against whom the complaint is made;
• gist of the complaint;
• any additional information;
• documentary evidence, if any;
• date of disposal of by the grievance redressal officer;
• details of disposal of the appeal by the district level committee; and
• any other information.

34. LIAISON OFFICER FOR PERSONS WITH BENCHMARK DISABILITIES:

Liaison Officers appointed to look after reservation matters for SCs/STs shall also work as Liaison Officers for reservation matters relating to persons with benchmark disabilities and shall ensure compliance of these instructions.

35. All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities under their control.

Sd/-

(G. Srinivasan)

Deputy Secretary to the Govt. of India

Ph.No.23093074

 (i) All Ministries/Departments of the Govt. Of India.

(ii) Department of Financial Service, Ministry of Finance, Jeevan Deep Building, Parliament Street, New Delhi.

(iii)Department of Public Enterprises, CGO Complex, Lodhi Road, New Delhi

(iv) Railway Board, Rail Bhavan, Delhi.

(v)Union Public Service Commission/Supreme Court of India/ Election Commission of     India/     Lok   Sabha      Secretariat/     Rajya     Sabha Secretariat/Cabinet Secretariat/Central Vigilance Commission/President’s Secretariat/ Prime Minister’s Office/Planning Commission.

(vi) Staff Selection Commission, CGO Complex, Lodi Road, New Delhi.

(vii)Office of the Chief Commissioner for Disabilities, Sarojini House, 6, Bhagwan Das Road,New Delhi – 110001

(viii) Office of the Comptroller & Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi.

(ix) All Officers and Sections in the Ministry of Personnel, Public Grievances and Pensions and all attached/subordinate offices of this Ministry.

Rights of Prisoners with Disabilities

The rights of prisoners with disabilities

Kalpana Kannabiran

Where prison facilities are not equipped to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort

We have a slew of cases around prisoners’ rights that emphasise their right to dignity and their right against cruel and degrading punishment, which have been understood to violate the right to life, guaranteed by Article 21 of the Indian Constitution. In complying with the standards set out in constitutional jurisprudence on this matter, the offence for which the person has been apprehended or convicted is immaterial. The standard is clear. No person shall be subjected to degrading, inhuman or cruel punishment that is violative of human dignity; the duty of care to be exercised in this matter during pre-trial custody is of a much higher order. These are standards applicable to all custodial situations and to all persons, irrespective of caste, sex, race, religion, or place of birth.

Treatment in custody

The Veena Sethi case in the early 1980s brought to light the treatment of prisoners with mental illnesses and their prolonged incarceration for periods ranging from 16 to 30 years in custody. This is far in excess of sentences given to them in most of these cases, without bringing them any substantive relief beyond release from illegal custody and transport and food expenses till they reached home. That was long before there was a consciousness or political articulation of the rights of persons with disabilities, which, importantly today, includes civil and political rights for prisoners with disabilities.

We have seen some reports on the arrest of Dr. G.N. Saibaba and the conditions under which he is being held in custody. The fact that needs close and urgent examination here is not whether he has Maoist “links” or whether he is a “sympathiser” or even whether a university professor can be harassed in this manner (although we must separate his troubles in the university from his treatment by the officers of the criminal justice system.) What needs our immediate attention is even more fundamental: as a person with disabilities who requires constant assistance and support, what are the standard minimum rules that must temper the decision to take him into custody, in order that the treatment meted out to him is not construed as cruel, degrading and inhuman?

It would be useful for the authorities who have taken Dr. Saibaba into custody to be informed of India’s commitment to the UN Convention on the Rights of Persons with Disabilities (UNCRPD). Article 4(d) enjoins States Parties “to refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention.” What are the specific protections for persons with disabilities in relation to state custody? Article 15(1) of the UNCRPD is immediately relevant: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Article 15(2) of the Convention places an obligation on the state to protect persons with disabilities from cruel degrading or inhuman treatment and punishment. It says, “States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”

The norm of substantive equality, well established through constitutional jurisprudence in India, speaks of the principle of equality that necessarily includes special treatment for persons who are vulnerable. The denial of special provisions, appropriate assistance and specialised health care access to a person with disabilities in custody, who uses a wheelchair and has special health care needs arising from chronic illness, comes firmly within the meaning of degrading, inhuman and cruel treatment in derogation of the state’s obligation under the UNCRPD.

Particularly where a prisoner with disability requires support and assistance for daily living, placing such a prisoner in solitary confinement and denying the right to accessible facilities for personal care and hygiene is violative of the right to dignity and bodily integrity — both guaranteed under Article 21 of the Constitution, but also under Article 17 of the UNCRPD. The latter simply and pertinently states that “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.”

The Rights of Persons with Disabilities legislation that ought to set out these standards in clear and unequivocal terms has been ever in the making in India. The absence of specific legislation, however, need not deter us from the path of justice. Article 14 of the Constitution that sets out the substantive right to equality before law, and Article 21 that sets out the framework for the right to life (with dignity) — as it specifically applies to prisoners — should at this time be read with the UNCRPD which India has ratified. This is till the time that we put in place policies and national legislation that mandatorily provide for special services and basic needs that prisoners with disabilities might require, and prioritise the conditional and compassionate release of prisoners with high support needs.

Vulnerability of women

Recognising the vulnerability of women in custodial situations, the Criminal Procedure Code (CPC) provides very different standards for their involvement in criminal investigation. There are also special standards for the treatment of women prisoners and pregnant women in custody. The demand for treatment that is sensitive to the rights of persons with disabilities to dignity and physical integrity and to their specific needs is therefore not unprecedented. Where prison and custodial facilities are not equipped at all to deal with the specific needs of persons with disabilities, arrest and detention in custody should be a measure of last resort, clearly not the case where Dr. Saibaba is concerned. The investigating authorities must release him from custody forthwith and carry out any investigations they may require, without infringing on his right to human dignity and fundamental freedoms, and in full compliance with the CPC, the Constitution and the UNCRPD.

(Kalpana Kannabiran is Professor and director, Council for Social Development, Hyderabad.)

Source: The Hindu

How do you make a bad law worse - Amba Salelkar & Rijul Kochhar.

Children of a Lesser Law : Yahoo News

How do you make a bad law worse? Enact it by way of Ordinance, three months before elections.

By Rijul Kochhar, Goutham Shivshankar and Amba Salelkar | Yahoo India – Mon 3 Mar, 2014

If there was any silver lining at all to be spotted in the pepper spray clouds of our Parliament’s abominable February session, it was that the Telangana issue precluded hurried passage of the deeply flawed Rights of Persons with Disabilities Bill 2014 (the “RPD Bill”). 

The Bill had been introduced in the Rajya Sabha on February 7, 2014, amidst immediate calls for its referral to a Parliamentary Committee by Members of Parliament. That silver lining is fast fading, however, with news reports now suggesting that the RPD Bill, along with other important anti-graft legislation, may be pushed through by the ordinance route.

This development is deeply disturbing: not only does it eliminate all possibility of any meaningful legislative debate on several contentious provisions of the Bill which will have far-reaching effects for persons with disabilities if enacted, it is also yet another instance of flagrant abuse of the presidential power to promulgate ordinances. Moreover, the promulgation of this deeply flawed version of the RPD Bill keeps intact the lacunae of the version approved by Cabinet and ends up harming all persons currently living with a disability in India.

The Power

Under the constitutional scheme (Article 123), the President is permitted to promulgate ordinances when the Houses of Parliament are not in session, only if he is satisfied that circumstances exist which render it necessary for him to take immediate action. Unlike other acts of the President which are executive in nature, the promulgation of an ordinance is regarded as a legislative act, and will have the same force and effect as an Act of Parliament. Our constitution places constraints on executive power and certain things, such as the imposition of tax, or providing for a procedure for the deprivation of life or personal liberty, may be done only by legislative acts; the power to promulgate ordinances exists in order to enable the government to quickly respond to a situation requiring urgent legislative action when Parliament is not in session. 

This “immediacy” requirement is however only in theory; what happens in practice, is something entirely different, as law scholar Shubhankar Dam notes in his recent book on the subject of ordinances. Historically, the ordinance-making power has been routinely used as a substitute to the legislative process, with no real regard being paid to whether it is the appropriate route to take as a matter of constitutional propriety. Ordinances have even been passed just a few days before a Parliament session is to commence. This trend has, in part, been encouraged by the reluctance of the Indian Supreme Court to effectively rule on the extent to which the President's legislative powers exist, with the exception of D.C. Wadhwa's Case, where the Supreme Court came down hard upon the executive in Bihar for almost taking over the role of the Legislature in making laws, not for a limited period but for years together in disregard of the constitutional limitations, by ordinances which were being re-promulgated. This was held to be clearly contrary to the constitutional scheme. Viewed from the perspective of such historical abuse of the ordinance power, the resort to the ordinance route to enact the RPD Bill is not unusual. 

The Problems

Nonetheless, enactment of ordinances remain hugely problematic for two reasons: firstly, the ordinance-making process is screened from public view. In case of the RPD Bill, which was already controversial for having been changed drastically from original drafts without release to the public, it will not be known whether the proposed amendments by the Ministry for Social Justice and Empowerment, sought to be introduced during the discussion of the Bill, would be included in the ordinance or not, or whether these amendments would face the same fate of the proposed amendments to the Whistleblowers Bill. Even these amendments are far from being satisfactory to civil society beyond the organizations which had proposed them to the Cabinet. 

Secondly, unlike ordinary legislations passed by Parliament, ordinances are by their very nature temporary, unless ratified subsequently by both Houses of Parliament in the immediate next legislative session after promulgation of the ordinance, or re-promulgated. The potential confusion this temporariness may create is perhaps manageable when an ordinance is brought in a space where there is a legislative vacuum. However, the RPD Bill does much more than fill a legislative vacuum – it repeals the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the “1995 Act”) and in the process, dismantles and re-builds from scratch the bulk of the existing framework of rights and protections afforded to persons with disabilities in India. The RPD Bill, if enacted, would be effectively shutting down existing structures and implementing new ones -  ostensibly to give effective realization of the rights of persons with disabilities. The extent of confusion that will be created in an already inaccessible system needs to be therefore considered seriously. 

Enacting penal legislations like anti-graft laws, or even the earlier instance of the inexplicable “rape law” ordinance post the release of the Justice Verma recommendations, are relatively simpler to implement, even when enacted in this manner. They are effectively notifications of substantive law, all to be largely governed under the existing institutional framework of the common Criminal Procedure Code. In the case of specific fields of law, like disability law, which create their own ecosystem of legislation, the procedure that exists is found within the statutes themselves, from the laying down of rules, notifications etc. which are collectively known as delegated legislation. 

All of the rights which exist under the RPD Bill are to be enforced by various bodies such as the District, State and National Commission for Persons with Disabilities. The constitution of these Commissions depend heavily on the rules to be notified in this regard. It is hard to imagine a circular for applications to these Commissions without rules on terms of service, salaries etc. The procedure for rule making under the RPD Bill requires “previous publication”. For rules which have the mandate of “previous publication”, Chapter 11.2 of the Manual of the Ministry of Parliamentary Affairs explains that the concerned Department must first put out draft rules, place them before the Ministry of Law and Justice, and then publish them for comments. There is thus an elaborate process for these rules, and the concerned Department will have up to six months from the date of closing of comments to finalize them. Bodies appointed for monitoring of the rights of persons with disabilities under the Bill, setting standards with regard to accessibility, etc., are all to be constituted subsequent to the framing of rules, which means that in case of any grievances, there is effectively very little option for redressal under the ordinance. Therefore, with no watchdog, either to enforce provisions or respond to grievances, the question is whether the so called beneficial provisions of the law will come into force at all. At worst however, this would render the ordinance harmless – but this is just the beginning.

The Practice

In the lives of the disabled, the disability certificate is a commanding entity. It is the artefact of government and the state that interprets the experiences of persons dealing with disabilities, translating and transforming those experiences into a public fact. Thus, the disability certificate offers a particular form and definition of disability, with its attendant mathematical percentage, supplanting the shards of experience with bureaucratic rationality and certitude. This transformation of messy lived experience into mathematical and medical certainty, at once also affects that larger lived experience of lives lived with a disability. Given this centrality of certificate to disability—and given the fact that without this certificate, no disability would be publicly recognized by the state—it is surprising that scant attention has been paid to this aspect in the otherwise spirited debate on the merits of the Cabinet approved RPD Bill. 

One important difference between the 1995 Act and the RPD Bill is the inclusion of disabilities which were not recognized under the 1995 Act. The 1995 Act had no definition of disability – instead, it listed blindness, low vision, hearing impairment, leprosy cured, locomotor disability, mental illness and mental retardation, and by implication, multiple disabilities (two or more of the listed impairments). The RPD Bill retains the first 6 categories of impairments, removes “mental retardation”, and includes autism spectrum disorder, cerebral palsy, chronic neurological conditions, deafblindness, multiple sclerosis, hemophilia, intellectual disability, muscular dystrophy, specific learning disability, speech and language disability, thalassemia, sickle cell disease and multiple disabilities as “specified disabilities”.

It is not just the label of the “specified disability” which is of importance. The percentage of the disability becomes crucial – most of the benefits under the Bill which exist, including the increased percentage of reservations in employment and higher education, extend only to persons with the “specified disability” who are certified to have more than 40% of the disability. Persons crossing the 40% threshold are termed as persons with “benchmark disabilities” as certified by the certifying authority under the Bill. These “certifying authorities” are to be notified by the “appropriate Government”, increasing the scope of delegation of legislation to nominate these entities, and uncertainty along with it. 

There are two groups of persons under this proposed ordinance, therefore: those already recognized as persons with disabilities under the 1995 Act, and those who will be recognized as persons with disabilities now. For persons who were earlier certified under the 1995 Act, Section 117 of the RPD Bill states that while the 1995 Act is repealed, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act. However, unlike other statutes which repealed earlier statutes which granted certification, for example, the Motor Vehicles Act 1989 (Section 217 (2) (b)), and the Trademarks Act, 1999 (Section 159),  this “repeals and savings clause” does not explicitly and specifically validate certificates issued under the repealed Act. In absence of this express clarification, bureaucracies and offices will demand certificates from such persons as per the ordinance’s requirements, viz., “as certified by the certifying authority”, rather than accept the certificates that persons already legitimately possess through the existing law from 1995. The effect would be that although accrued rights to persons with disabilities under the 1995 Act cannot be taken away from them, they could be asked to produce certificates under the new Act to get any benefits going forward. A change in law without adequate safeguards and protections for those living under the existing law, brings an emergent scenario where existing rights, recognitions and certificates, would lose their traction; they would become useless. 

Spare a thought also for the unique case of the derecognized certification of “mental retardation” - and the complete lack of clarity as to how this situation is to be addressed under a new law.

- The Illusion of Instant Recognition

One of the reasons for the supposed urgency on the part of the UPA government is the extending of benefit of recognition and reservations to the new categories of disabilities. This recognition is nothing but an illusion. For, without the development of medical protocols which emerge out of the rules following the enactment of legislation—the manuals on the basis of which doctors adjudge one’s disability, its severity, and its mathematical percentage, when one goes to claim one’s disability certificate—none of these newly included categories of disabilities can be judged by the “certifying authority”. It took the government 6 years to come up with the appropriate guidelines for evaluation of disabilities after the 1995 Act was enacted, and Rules reflecting this came into being in 2009. The new categories of disabilities that the RPD Bill envisages for inclusion will involve similar debates and discussions, though ones hopes it takes months, rather than years. This ultimately depends upon when the government, which is in the process of being dissolved, will constitute a mechanism to decide this. Rules and medical protocols, which would ensure recognition and the availability of resources by the state, can emerge only when they are nested in context of fixed, stable and non-arbitrary legislation – an Act of Parliament – and that will take time. The ordinance has no resources or time to devise these rules for enforcement of intent or the medical protocols for certification, simply because the life of the ordinance itself is limited.

What’s more, the certification process is certainly not easy – cumbersome procedure had ensured that only 22% of persons with disabilities had obtained certificates from 1995 to 2007. Thus, to say that the ordinance would, overnight, include heretofore excluded categories of disabilities is, at best, an overestimation, and at worst, a big cruel lie. And since everything hinges upon the certification of “benchmark disabilities” - reservation in government employment, reservation in higher education, reservation in poverty alleviation schemes, social security, reservation in housing schemes, and even the ability to apply for the grant of “high support” - the ordinance amounts to nothing, and in fact goes a step ahead to disenfranchise those who have rights to these by virtue of existing law and judicial precedent.

Temporary Yet Permanent

The Supreme Court's ruling in Bhupendra Kumar Bose's Case has held that everything done or initiated under an ordinance during the period it is in force remains permanently valid, and is considered legal. Even though the ordinance is itself temporary, actions taken under it would have permanent implications. This precedent is terrifying, because as pointed out time and again, the RPD Bill as it now stands creates a regressive regime, even if it will be in existence for a few months. For the limited period of time, pregnant women with disabilities can be forced to undergo abortions against their will, children can be pulled out of neighbourhood schools and forced to go to special schools, no matter how far they are from their residence, persons with disabilities will face fetters on their exercise of legal capacity, and for the first time, persons with disabilities will be allowed to be discriminated against on the basis of disability as long as it is a proportionate means to a legitimate aim – and it will all be perfectly legal, even if a new government lets the ordinance lapse. 

Reservations in government employment and higher education for persons with disabilities for the coming year would be endangered simply because there is no clarity either on their existing legal status as persons with disabilities, or on the permanence of the law itself. This ambiguity would preclude such persons from all of the avenues of reservations and other benefits—like loans—that the state has on offer, simply because the fate of the legislation and the ordinance itself is uncertain, and there are no rules or protocols to replace what the ordinance will repeal in the 1995 Act. 

Uncertain future

There is no guarantee as to when this nightmare by legislation will end for persons with disabilities. The ruling of the Supreme Court in the D.C. Wadhwa case does allow for re-promulgation in cases where the Legislature may have too much legislative business in a particular session or where the time at the disposal of the Legislature in a particular session is short. Continued re-promulgation of the RPD Bill as an ordinance on such counts is likely, especially if a new government comes to power at the Centre. Disability is not considered to be a political issue, and in that case, there is also the danger of Parliament ratifying the ordinance also without any further debate on the issue. Prior experience with the 1995 Act also suggests that it may be difficult to resolve any flaws in the RPD Bill after its enactment through the amendment process. When the 1995 Act was enacted, a committee was constituted almost immediately to suggest amendments to strengthen the law. The result? None whatsoever – the Act was never amended. The 1995 Act has behind it 20 years of rule-making and judicial precedent, which may all just disappear by the signature of one person behind a closed door. If this is not a violation of the right to life of persons with disabilities, without the due process of law being followed, then what is?

Amba Salelkar is a lawyer working with the Inclusive Planet Centre for Disability Law and Policy, Chennai. Goutham Shivshankar is an Advocate at the Madras High Court. Rijul Kochhar is a Junior Research Fellow in Sociology at the Delhi School of Economics.

Source: in news yahoo dot com

Guidelines for Comments - Facilities for Govt. Employees with Disabilities for efficient performance of duties

Dear Colleagues,

Some of you would know that the Office of Chief Commissioner - Disabilities had organised a workshop titled "Consultative Workshop for framing draft guidelines for creation of non-disabling work environment for Government Employees with Disabilities to enable them to function smoothly in Government service."  on 28 May 2013 at IIC, Delhi. 

After the day long deliberations, wherein delegates from the disability sector, NGOs, government employees, national institutes etc.  participated. I had the opportunity to compile the draft on behalf of the CCPD office which was subsequently sent to the DoPT. Click here for a copy of the said draft hereinafter called CCPD's June 2013 Draft

Now, almost after 8 months, the DoPT has come out with the final version of the document titled "Guidelines for providing certain facilities in respect of persons with disabilities who are already employed in Govt. for efficient performance of their duties" dated 14th Feb 2014 which is also uploaded on their website inviting comments from Ministries/ Departments. Click here for a copy of the said DoPT draft dt 14 Feb 14

I can with reasonable credibility, having been a participant at the CCPD's Workshop on 28 May 2013, and having contributed and compiled the CCPD's draft can safely conclude today that the draft has been diluted to a great extent. Despite that, I believe notification of the guidelines is a good step and it will not only help integrating employees with disabilities at workplace in govt but also and offer guidance to private players. However, here is a brief evaluation of the guideline.

Good things that have been accepted in the DoPT draft:

1. Placing the employee with an experienced employee for at least a month on resuming responsibilities of a post - that will allow him to pick up required skills to perform the job and also explore the adaptations needed in individual cases.
2. Provision of assistive devices/ aids - good quality assistive devices, special chairs, software etc to improve the efficiency has been accepted in principle with a review every three years for upgraded versions. It requires the departments to provide for the cost of equipment or its reimbursement to the employee.
3. Special casual leave of 15 days per annum - mainly for inpatient treatment in CGHS.  I hope this is in addition to the existing sick leaves and all other leaves.
4. Every ministry/department to arrange training in "Disability Equality and Etiquette" for their liaison officers in consultation with CCPD. 

Some glaring issues that are visible on a cursory reading in the DoPT draft are:

1. At the outset, the document doesn't come across as a rights giving document, it looks more like a doles giving document to the employees with disabilities.
2. There are no budgetary provisions made nor there is any system created to evaluate or assess the needs of employees with disabilities. Hence the entire "amenities" are likely to be more subjective.
3. It is seeking comments from ministries and not from general public or associations of employees with disabilities.
4. It gives no legal sanctity to the disabled employee unions to discuss their issues as mandated by the UNCRPD.
5. When compared with the CCPD draft,  you will realise how 21 page draft has been reduced in to 4 pager policy. This has resulted in either things getting  left out or made so vague that it may be difficult to seek its implementation.
6. It misses out the reasonable accommodations needed for employees with disabilities to perform to the fullest.
7. Due to limited applicability, it is feared by some quarters that it may not help employees in Banks etc. though I feel these would be equally applicable to employees in scheduled banks as well as those working under Ministry of Finance. 
8. Also it is not indicated as a guiding document for the State governments who may have a job identification list for persons with disabilities different from the one notified by the Union of India. 
9. The DoPT has sought comments from the ministries and is likely to be finalised without any final involvement of the stakeholders..... which is against the basic theme of UNCRPD - "nothing about us without us". That is what the government had done even with the RPD Bill 2013 when it was quietly pushed in to parliament in utmost secrecy without involving the stakeholders.
10. In the Identification of jobs, there is inherent bias visible in the guidelines when  it says that each ministry ..... should identify the types of jobs which could be easily performed by them specially for group B, C & D...... Why should Group A be excluded? Do they think that disabled employees are not capable of holding Group A post or performing functions of Group A posts?

Conclusion

I am leaving it to you to compare the two drafts available on the links above, and see for yourself how can a well meaning document be turned into a weak policy document nurtured with a charity mindset!

Here is the coverage in The Hindu on the subject today:

Centre’s guidelines moot facilities for disabled government staff

18 Feb 2014, AARTI DHAR

Proposals include preferences in transfers, postings and accommodation, reimbursement for assistive devices and special casual leave

The Central government has come up with a set of draft guidelines on providing certain facilities to its employees with disabilities to help them perform their duties efficiently.

The guidelines, released on Monday, include proposals such as preferences in transfers, postings and accommodation, reimbursement for assistive devices and special casual leave. Additionally, all ministries and departments, subordinate offices, PSUs, government companies, and cantonment boards would also have to identify the type of jobs that such employees may easily perform.

As far as possible, persons with disabilities will be exempted from rotational transfer and will be allowed to continue in the same job where they would have achieved the desired performance. Preference in place of posting at the time of transfer or promotion may be given to the persons with disability.

The induction training — an essential component of an employee’s service requirement — of all employees should take place together. Job-specific post-recruitment and pre- promotion training programmes are required to be organised for persons with disabilities.

The guidelines instruct ministries and departments to provide or reimburse, within a specific time frame, the cost of special assistive devices in accordance with the prices fixed by them in consultation with various national institutes specialising in disability care.