People with disabilities are entitled to reservation in promotion for government jobs, the Supreme Court has ruled, clearing a major hurdle for millions who face difficulties and discrimination in professional and personal life.
The top court decision breaks away from a string of recent judgments – the latest in March -- that said the government wasn’t bound to give reservation in job promotions to scheduled castes and tribes. Under a 1995 law, the government identifies 3% jobs as suitable for persons with disabilities (PWD) but doesn’t enforce the same quota in promotions. This meant disabled people could not be appointed to government posts that are meant to be filled up by promotion only.
But last Thursday, a bench of justice J Chelameswar and Justice AM Sapre said that once a position was identified as PWD-suitable, it meant disabled people were capable of discharging the functions of the post and must be given 3% quotas as mandated under the 1995 Persons with Disabilities Act. “It (the post) must be reserved for PWD irrespective of the mode of recruitment (direct or promotion) adopted by the state for filling up of the said post,” the court said. The ruling came on a petition filed by Prasar Bharti employees Rajiv Kumar Gupta and others who were denied promotion to Group A and Group B posts under the disabled category.
“Wherever posts are identified to be suitable for disabled persons, 3% reservation must be given in direct recruitment and promotion,” said petitioners’ advocate Rajan Mani. The government had contended that these posts were to be filled by promotion alone and there couldn’t be any reservation in promotion as ruled by the Supreme Court in the Indra Sawhney case in 1992.
But the top court said PWDs were different from backward classes, for whom reservation has to follow the criteria laid down in Article 16(1) of the Constitution that mandates equality in employment opportunities in government jobs. “The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has no application to the PWD,” the bench.
The 2011 census reported 2.2% of India’s population comprises persons with disabilities but hostile social attitudes and poor implementation of legal benefits has meant PWDs struggle to access public spaces and are rarely seen in senior professional positions. The top court rued this fact, saying it was “disheartening” to note the low numbers of PWDs in government employment two decades after the 1995 act.
“Barriers to their(PWD) entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act.” The court pointed out that the 1995 Act was enacted to fulfil India’s obligations under the ‘Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region’.
It said the objective behind the 1995 Act was to integrate PWD into the society and to ensure their economic progress. “The intent is to turn PWD into ‘agents of their own destiny’. PWD are not and cannot be equated with backward classes. May be certain factors are common to both backward classes and PWD such as social attitudes and historical neglect etc,” the SC noted.