This article has been written by Karleen De Mello.

Introduction

Historically, society has viewed disability through a negative lens. A person with such a condition was considered a “patient” subject to a cure or persistent medical care. The condition was seen as disabling; the social reactions to it were justified, and the barriers inevitable. This describes what came to be known as the medical model of disability. A competing position has emerged during the last 20 years called the social model of disability. Rather than a medical reality, this model views disability primarily as a social construct; the physical and attitudinal barriers prevalent in society. An individual has an impairing condition requiring daily adaptation, but these barriers in essence are the bulk of her/his problem. Both models agree, to some degree, that opportunities and facilities should be as accessible as possible to those who require them.

What are the frequently encountered barriers to equal participation in the job market?

A person with a disability is likely to face multiple barriers on a day to day basis. These barriers are more than just physical roadblocks. Some of the commonly identified barriers to the inclusion and full participation of a person with such a condition may include, but are not limited to, attitudinal, communication, policy, programmatic, social, transportation, as well as physical barriers^[1]. A barrier may be described as a factor in an individual’s surroundings that curtails functioning and creates disability on account of its presence or lack thereof. This could range from:

• A physical environment that is not accessible: A person in a wheelchair faced with a flight of stairs and no provision for a ramp is commonplace in most countries. Inaccessibility of educational institutions, workplaces, government buildings, public transportation and other spaces reduces participation and negatively impacts the personal, family, economic and social well-being of a person dealing with a disability.

• Lack of appropriate assistive technology: Hearing aids, prostheses, communication aids and screen reading software are just a few examples. These devices are rehabilitative and adaptive in nature, reducing or eliminating the need for support and assistance. They promote independent living and facilitate participation in education, the labour market, and civic life. Only one out of ten persons in need has access to assistive technology^[2]probably on account of a host of reasons including their cost, a lack of awareness, issues with availability, a dearth of trained personnel, and absence of a national assistive technology policy in most countries.
• Policies and systems that are absent or that pose obstacles to the involvement of persons with disabilities (PWD): Examples of such barriers are denying service animal users service, or web pages and apps that are inaccessible. A well-defined policy of non-discrimination is lacking in most countries and this hinders participation significantly.
• Negative attitudes of people towards disability: This manifests itself in employers deciding against hiring persons with disabilities for a variety of reasons such as a common lack of knowledge about persons with disabilities in general but also owing to not knowing how best to accommodate their needs^[3]. The stereotypes and attitudes held by co-workers and supervisors can also be a barrier in this regard. This fosters a degree of social distance between the disabled person and the general population, and results in a biased view of the capacity of employees with disabilities.^[4]

While these barriers are an obvious impediment to someone looking to join the workforce, the extent of the issue is hard to discern due to the lack of data and statistics on PWD in general but specifically on their employment status. The unemployment rate of PWD in the working age group is twice that of those without a disability in developed countries. In developing countries, 80%-90% of PWD are unemployed, whereas in industrialized countries the numbers are between 50%-70%.^[5] In India, 36% of all PWD are employed – 23% and 47% among females and males respectively.^[6]

A detailed guide to the RPWD Act, 2016

What are the disabilities covered?

Under Indian law, the concept of disability has evolved significantly. The RPWD Act defines PWD to mean someone with an impairment whose participation in society is hindered when faced with barriers^[7]. A disability certified to be 40% or more is called a “benchmark disability”^[8]. The Act recognises twenty-one kinds of disability in contrast to the prior law that recognised only seven. Further, the Central Government is empowered to add more kinds to the list of disabilities. “Specified Disabilities” recognised under the Act are as follows^[9]:

Blindness, Low vision, Leprosy-cured, Hearing impairment (deaf and hard of hearing), Locomotor Disabilities, Dwarfism, Cerebral Palsy, Muscular Dystrophy, Intellectual disabilities, Specific Learning Disabilities, Mental Illness, Autism Spectrum Disorder, Chronic Neurological Conditions, Multiple Sclerosis, Speech and Language Disabilities, Thalassemia, Haemophilia, Sickle Cell Disease, Parkinson’s Disease, Acid Attack Victims, and Multiple disabilities including deaf-blindness

The term ‘mental retardation’ has been replaced by ‘intellectual disability’. It is characterised by substantial limitations in intellectual functioning including learning, reasoning, problem-solving and adaptive behaviour covering a host of everyday practical skills and social interactions. This could include specific learning disabilities and the autism spectrum as well. Most pieces of legislation across various jurisdictions are in consonance with international norms and define these terms uniformly.

Rights and entitlements

An individual with a disability is recognised to possess rights and legal capacity, on an equal footing with others, in terms of recognition under the law, acquisition and inheritance of property, financial affairs, Etc.^[10] Under Chapter II of this Act, the Appropriate Government must guarantee the following rights to PWD:

• Equality and non-discrimination [Section 3]
• Provision of an adequate environment for the utilization of an individual’s capacities [Section 3(2)]
• Protection from discrimination based on disablement except if the act in question is commensurate with the goal sought to be achieved [Section 3(3)]
• Protection from deprivation of liberty [Section 3(4)]
• Ensuring reasonable accommodation [Section 3(5)
• Equal enjoyment of rights for women and children with disabilities [Section 4]
• Right to community life [Section 5]
• Protection from inhuman treatment and cruelty [Section 6]
• Protection from being forced to participate in research, unless the individual gives his/her  informed consent, and a committee constituted for that purpose approves the same [Section 6(2)]
• Protection from exploitation, violence and abuse [Section 7]
• Safety and protection in the event of natural disasters, armed conflicts, humanitarian emergencies, and other situations of risk [Section 8]
• Right to home and family [Section 9]
• Reproductive rights, including the right to access information concerning reproduction and family planning [Section 10(1)]
• Protection from medical procedures resulting in infertility without the individual’s informed consent [Section 10(2)]
• Barrier-free voting in terms of accessible polling stations and materials concerning the electoral process (Section 11]
• Provision of limited guardianship if so determined by the designated authority or the District Court (Section 14]

The RPWD Act, under Section 12, provides that the appropriate government must ensure that PWD are able to access any court or other forum, without disability based discrimination, while accessing justice in any such forum.

Education

Chapter III of the RPWD Act, 2016 deals with the provisions concerning education of PWD, including adult education. All recognised educational institutions are required to provide inclusive education to a child with a disability. In order to achieve this purpose, Section 16 provides that the educational institution is required to:

1. Admit children with disabilities without discrimination, and provide them with education and opportunities for recreation and sports on an equal footing with others.
2. Ensure that campuses, buildings, and other facilities are accessible.
3. Make reasonable accommodations based on the child’s individual needs.
4. Provide individualised or other necessary support in an environment aimed at the maximisation of social and academic development.
5. Ensure that persons who are deaf or blind or both receive an education in a language that is most appropriate in terms of the means and modes of communication.
6. Identify learning disabilities early on, and adopt suitable measures, pedagogic and otherwise, to overcome the same.
7. Provide transportation to a child with a disability and his/her attendant if the child has high support needs.
8. Monitor the participation and progress of each child with a disability.

In order to implement the above provision, Section 17 lists various measures to be adopted by the appropriate government, including conducting surveys every five years to identify children with disabilities among school-goers; establishing sufficient training institutes for teachers; training and employment of teachers, including those with disabilities, qualified and trained in Braille, sign language, or teaching those with intellectual impairments; establishing sufficient resource centres; providing students with benchmark disabilities with free books, study materials, and adequate assistive tech; providing scholarships to students with benchmark disabilities; modifying the curriculum and system of examination suitably, such as providing a scribe, extra time, etc.

Further, children with benchmark disabilities (a disability degree of 40% or higher) between the age of 6 and 18 are entitled to a free education (Section 31). Institutions providing higher education are required to reserve 5% of all seats for PWD, and relax the upper age limit by a period of 5 years.^[11]

Employment and skill development

Chapter IV contains provisions relating to employment and skill development, while Chapter VI contains additional provisions for those individuals who have benchmark disabilities. Below are the provisions dealing with employment under the RPWD Act, 2016:

A. Programs for self-employment and vocational training [Section 19], including:

• Provision of loans at concessional rates.
• Inclusion of PWD in mainstream programs for skill training.
• Ensuring adequate support to PWD while availing schemes and programs.
• Providing exclusive training programs with active market links for individuals with intellectual and developmental disabilities.
• Marketing products are so made.

B. Non-discrimination in employment [Section 20]. Unless exempted from the application of this provision by a notification to that effect, Government establishments are subject to the following:

• Provision of reasonable accommodation and a barrier-free environment to employees with disabilities.
• Prohibition against denying promotions on the basis of disability.
• Prohibition against dispensation or reduction of an employee’s rank on account of acquisition of a disability while in service.

C. Appointment of a Grievance Redressal Officer by government establishments [Section 23]. The person so appointed is required to:

• Accept complaints for non-compliance of Section 20.
• Maintain a register of complaints.
• Enquire into the matter within a period not exceeding two weeks from the date of registration of the complaint.
• Investigate the matter.
• Take it up with the concerned establishment for the purpose of corrective action.
• In case a complainant is unsatisfied with the action so taken, they are entitled to seek the intervention of the District-Level Committee.

D. Equal opportunity policy to be registered with the Chief or State Commissioner [Section 21]

E. Maintenance of records relating to employment of PWD by establishments and the Employment Exchange [Section 22]

Reservations in employment

Chapter VI contains provisions that are applicable specifically to those persons who have a disability that is categorised as “benchmark”. This refers to a 40% or higher degree of disability. Section 34 provides for reservations or quotas in Government employment. At least 4% of the vacancies in each group of posts shall be filled by PWD, 1% for each of the first three categories, and 1% for both the last two categories, namely:

1. Individuals with low vision or blindness.
2. Individuals who are deaf or hard of hearing.
3. Individuals having locomotor disabilities, including dwarfism, leprosy cured, cerebral palsy, muscular dystrophy, and victims of acid attacks.
4. Individuals with autism, learning disabilities, intellectual disabilities, and mental illness.
5. Individuals with Multiple  disabilities including deaf-blindness.^[12]

In the event of a vacancy remaining unfilled on account of non-availability of a suitable candidate in a recruitment year, the said vacancy is to be carried forward to the following recruitment year. If the same situation persists in the following recruitment year, the vacancy is filled by way of interchange.^[13] Interchange among the above categories of persons is also permissible, if the appropriate government so approves, where the nature of the vacant post is such that a certain category of persons cannot be hired. A government establishment may be exempt from the application of this Section if there is a notification to that effect. The Government is also required to issue instructions for reservation in promotions and upper age relaxations.

The appropriate government is required to identify suitable posts for PWD, constitute an expert committee for that purpose, and review the identification periodically (Section 33). The Act also provides for incentives to private sector employers in order to encourage representation of PWD in private employment.^[14]

Accessibility

The central government is the authority responsible for the formulation of accessibility standards under Section 40 of this Act. It frames rules on accessibility for PWD in consultation with the Chief Commissioner for PWD. The accessibility standards thus framed relate to accessibility of transportation, Information and Communication Technology (ICT), services and facilities provided to the public in rural and urban areas, and the overall physical environment. Rule 15 of the RPWD Rules, 2017 is framed for this purpose.^[15]

The Act provides as under:

1. Access to transport [Section 41]. This includes

• Facilities at airports, railway stations and bus stops relating to ticketing counters and machines, toilets, and parking space.
• Accessible modes of transport, including retrofitting older modes wherever feasible.
• Road accessibility addressing the mobility requirements of PWD.
• Programs promoting the personal mobility of PWD, including personal assistance, concessions, and retrofitting of vehicles.

2. Access to ICT [Section 42]. The appropriate government shall ensure the following:

• Accessible format for content in electronic, audio and print media.
• Accessibility of electronic media in terms of closed captioning, sign language interpretation, and audio description.
• Availability of electronic equipment and goods for daily use in universal design.

3. Universally designed consumer products [Section 43]

It is mandatory for every establishment to adhere to the accessibility rules framed under this Act while planning to construct any structure. In the absence of the necessary compliance, no permissions or certificates of completion shall be issued by the concerned authorities. All existing public buildings are to be made accessible in accordance with the requisite rules within five years from the notification of said rules. The Rules were notified on 15/06/2017 so the deadline for compliance of the same is June 2022. Both; government and private service providers are required to comply with the rules formulated under Section 40 within a period of two years from their notification. The accessibility standards shall be reviewed by the Central Government from time to time.

Authorities, offences and penalties

The RPWD Act, 2016 provides for the establishment of Central and State Advisory Boards to assist with formulation of policy on disability. District-Level Committees shall also be established by the state governments in order to address local disability issues. A national and state fund has also been provided for in order to provide financial assistance to PWD.

The Act also establishes the Office of the Chief Commissioner at the centre, who shall be assisted by 2 Commissioners (one of whom is a PWD), and an Advisory Committee of 11 members. Similarly, the State Commissioner is to be aided by an Advisory Committee constituting 5 members. Both; the Chief and State Commissioners shall act as agencies of grievance redress, and monitor the implementation of the RPWD Act. Both Offices shall have the same powers as that of a Civil Court under the CPC, 1908 while discharging their functions under this Act.

Penalties for violation of the Act, and offences against PWD are provided for under the Act. A person found to be in violation of this Act, its Rules, or regulations shall be punishable with a fine extending to Rs. 10,000/-, and for a subsequent offence, a fine not less than Rs. 50,000/- but could extend to Rs. 5,00,000/-. A person who avails or attempts to avail benefits designated for individuals with benchmark disabilities could be punished with imprisonment for a period extending to two years, or a fine extending to Rs. 1,00,000/-, or both. If any person intentionally insults or intimidates PWD, or sexually exploits women or children with disabilities, he/she is liable to a fine, and imprisonment for a period not less than 6 months but could extend to 5 years.

State governments are required to designate, in concurrence with the High Court, a Court of Sessions as a Special Court for each District. These Courts are required to try offences under this Act. States are also required to appoint a Special Prosecutor who may either be a public prosecutor or an advocate who has practiced for a period of at least seven years.

What are the rules and relevant Office Memoranda (OM) governing the practical implementation of the employment policy?

The RPWD Rules, 2017 were notified on 15/06/2017. Chapters IV and V, as well as Forms I, II and III of said Rules deal with employment and vacancies for PWD. Pursuant to these Rules, the Department of Personnel and Training (DOPT), through its OMs, issues instructions from time to time in order to govern and guide the process of job reservation and recruitment of PWD. The information in this section is based on the following official Notifications/Rules:

• RPWD Rules, 2017
• O.M. Dated 15/01/2018 [Reservation for Persons with Benchmark Disabilities (PWBD)]
• O.M. Dated 08/01/2014 (Identification of Posts for PWD-Review thereof)
• Notification No. 16-15/2010-DD.III Dated 29/07/2013 (Post Identification)

Quantum and Computation of Reservation

• 4% of the total vacancies in the cadre strength of each group (Group A, B, C) must be reserved for PWD. These identified posts are to be filled by individuals with benchmark disabilities in the case of direct recruitment. The 4% is apportioned as under:

1. 1% for those with visual impairments [Clause (a)]
2. 1% for those with hearing impairments [Clause (b)]
3. 1% for those with locomotor disabilities [Clause (c)]
4. 1% for those with mental illness, autism, intellectual and learning disabilities [Clause (d)], and those individuals who have multiple disabilities [Clause (e)]

• A Department or Ministry that wishes to exempt any cadre or establishment from the provisions concerning reservation must make a reference to the Department of Empowerment of PWD containing all particulars as to why the exemption is justified. The said Department shall, after giving due regard to the nature of work so carried out, make a notification to that effect, setting forth the conditions (if any) for granting the partial or full exemption.
• A PWD cannot be prevented from competing for an unreserved vacancy if the post is within the category of those identified to be suitable for individuals with benchmark disabilities. Hence, a PWD can be appointed to a post by direct recruitment even if the vacancy has not been reserved, but is identified as being suitable for the category of disability of the applicant. A PWD selected sans relaxed requirements alongside general applicants will not be apportioned to the reserved section of vacancies. Rather, these vacancies are to be filled by disabled applicants who are lower on the merit list than the last general applicant, but said disabled applicants are otherwise qualified to occupy the post in terms of relaxed standards if necessary.
• The computation of reservations for PWD with regard to Group ‘C’ posts is made on the basis of all vacancies in the cadre strength in a given establishment; however, the recruitment of PWD shall be in respect of only those posts identified as suitable. With regard to Groups ‘A’ and ‘B’, reservations for PWD shall be calculated on the basis of all vacancies arising in the cadre in the respective Group during direct recruitment, and the computation shall be inclusive of all vacancies arising in both categories of posts, whether identified or not.

Maintenance of Rosters (Effecting Reservations)

• A group-wise, separate roster register of reservations shall be maintained by all Government establishments. It is a hundred point vacancy based roster to be maintained in the prescribed format, and is maintained for the purpose of effecting reservations for PWD in direct recruitment.
• The register (reservation roster) shall have a hundred point cycle to be divided into the following four blocks:

1. Block I- No. 0 –No. 25
2. Block II- No. 26 –No. 50
3. Block III- No. 51 –No. 75 and
4. Block IV- No. 76 –No. 100

• Points No. 1, 26, 51, and 76 of the reservation roster are year marked for the four respective categories of PWD. The establishment Head shall ensure that the vacancies identified at the aforementioned points are year marked for PWD, and he/she shall also determine the placement of the candidates so selected on the said register. All vacancies arising other than those for PWD shall also be entered upon this register.
• The object of designating Points No. 1, 26, 51, and 76 as reserved for PWD is to fill up the first available vacancy suitable for PWD. If, for example, the vacancy at Point No. 1 is not identified to be suitable for PWD, or the establishment Head decides otherwise or the vacancy cannot be filled by a PWD for any other reason, it is possible to treat a vacancy at any other point from no. 2-25 as reserved for PWD and filled accordingly.
• Similarly, any of the vacancies between the 2nd (Points 26-50), 3rd (Points 51-75) and 4th (Points 76-100) Blocks are to be filled by PWD. In the event that no suitable vacancy is available in the 1st Block, the reservation shall be carried forward to the next Block, requiring two vacancies to be reserved in the 2nd Block. This shall continue for each subsequent Block.
• Once all the points in a roster are covered, a fresh hundred point cycle shall begin.
• In the event that the total no. of annual vacancies is sufficient to cover only 1 or 2 blocks (25 or 50 vacancies), the PWD categories are to be accommodated according to the roster, unless the vacancies in question are not identified to be suitable for the relevant category. In such a situation, the establishment Head shall make a determination as to the category of disability based on its level of representation, and the nature of the post in question. Disability reservation is horizontal in nature, while that of SC/ST/OBC is known as vertical reservation.

Backlog Vacancies

If a vacancy reserved for PWD has not been filled in a given recruitment year, on account of non-availability of suitable candidates or otherwise, said vacancy shall be carried forward to the next (succeeding) recruitment year. Such a vacancy is called a ‘backlog reserved vacancy’, and is treated as being reserved for the category of PWD for which it was originally reserved. If, in the subsequent year, a suitable candidate is still not available, the vacancy may be interchanged among the other identified categories of disability. Only when no suitable candidate is available for this purpose in the succeeding recruitment year among all the identified categories of PWD, it shall be permissible for an employer to fill the outstanding vacancy with an individual other than a PWD.

A vacancy shall be treated as having been filled by way of reservation only when it is filled by an individual who belongs to the category of disability for which it was reserved, or the individual has been recruited by way of interchange in the succeeding recruitment year between the identified categories of disability. A vacancy filled by an individual other than a PWD shall result in the carry forward of the reservation for two additional recruitment years after which it shall lapse. For the purpose of ensuring that lapsing of vacancies is kept to the lowest, any fresh recruitment of PWD shall be counted against reservations carried forward from prior recruitment years. Reservations are required to be filled chronologically, and the older vacancies that were carried forward shall be filled prior to the filling of the current vacancies. The procedure to be followed for filling up the same during these two subsequent years shall be the same as that of the first subsequent year. The interchange of vacancies by Government establishments is permissible when due process of recruitment, including proper advertisement, is followed by the said establishment.

Certificate of disability

An individual who desires to be appointed through a job reservation must submit a disability certificate issued by the Competent Authority (CA). If selected, the individual’s certificate may need to be verified if the CA so determines. In order to obtain such a certificate, an individual with a disability specified under the Act must apply for the same in Form IV of the RPWD Rules, 2017.^[16] 

The application must be accompanied by two recent passport size pictures, proof of residence, and the individual’s Aadhaar Number. Upon receipt of an application as aforesaid, the CA shall assess the disability according to the relevant guidelines, verify the information so provided, and issue the certificate in Form V, VI, or VII, upon satisfaction that the applicant is a PWD. The CA shall issue the same within a month from the receipt of the application, and specify the duration of its validity in accordance with rule 18 of the RPWD Rules, 2017.^[17] The certificate thus issued shall be valid for all purposes.

Identification of Posts for PWD

Pursuant to Section 32 of the PWD Act, 1995, the Ministry of Social Justice and Empowerment constituted an Expert Committee on 30/12/2010 to make an identification of suitable posts for PWD. The said committee set up three sub committees for the three categories of physical disabilities namely locomotor, hearing and visual impairment at its meeting on 14/02/2012.

Upon carrying out an in-depth study on the different types of jobs performed at public sector undertakings, Government offices and autonomous bodies like universities, and reviewing prior Notifications issued in 2007, the committee submitted its report on 24/01/2012. By virtue of this report, a list of posts suitable for PWD has been notified for Groups ‘A’, ‘B’, ‘C’ and ‘D’, and is available for perusal in Annexure-C to the relevant Notification. The list therein supersedes prior Notifications issued on 18/02/2007 and 15/03/2007 on the subject of job identification.

Upon a perusal of the said Notification, the following aspects appear to be noteworthy:

• The appliances and aids required by PWD to overcome their disabilities must be provided to them at the time of appointment.
• A post already held by a PWD shall be deemed as identified.
• When a post is identified in the feeder grade, it shall stand identified in the promotional grade also.
• The list consists of the designation of the identified post, physical requirements (sitting, standing, walking, bending, lifting, crouching, Etc.), category of disability, nature of work to be performed, working conditions, and remarks.
• Lastly, the list of posts is not exhaustive, but is illustrative in nature. Ministries and Departments are free to supplement the same.

Under the RPWD Act, 2016, Section 33 provides for identification of posts for individuals with benchmark disabilities. The provision requires the APPROPRIATE GOVERNMENT to constitute an expert committee that is representative of PWD, and periodically review the posts identified. There appears to be no nation-wide fresh identification of posts including jobs suitable for individuals with autism, intellectual disabilities, learning disabilities, and persons with mental illness (PMI).

What are the courts saying?

In Vikash Kumar v. UPSC and Ors [Special Leave Petition (C) No. 1882 of 2021], the appellant’s application for a scribe to take the UPSC examination was denied on the ground that writer’s cramp (Dysgraphia) did not amount to a Benchmark Disability of a 40% or higher degree under the RPWD Act, 2016. The SC held that conflating the rights of individuals with disabilities with the notion of Benchmark Disabilities amounts to a dis-service to the object of the enactment, therefore a Benchmark Disability is not a prerequisite to the use of a scribe. The Court referred to Section 20 of the Act that requires Government establishments to provide a conducive environment and make reasonable accommodations for employees with disabilities.

The case of Siddaraju v. State of Karnataka^[18] was a notable case concerning employment of PWD. This Supreme Court (SC) decision was delivered on 14/01/2020 by a Bench consisting of Justices Aniruddha Bose, R.F. Nariman, and V. Ramasubramanian. The decision deals with the issue of reservations for PWD in the matter of promotions, and encompasses the rights of PWD in this regard, while examining the RPWD Act, 2016 and the PWD Act, 1995.

In the instant case, a Karnataka Government employee, who happens to be a PWD, filed a Writ Petition in the Karnataka High Court (HC), claiming for reservations in promotion. The petition was dismissed by the HC in March, 2016, prior to the delivery of the landmark Judgement in the Rajeev Kumar Gupta case. The petitioner approached the SC in January, 2017, and the matter was then referred to a larger Bench. At the time, the Court was of the view that the Government’s contention, that reserving posts at the time of promotion was constitutionally invalid on account of the judgement in the Indra Sawhney Case, needed additional clarification.

In the case of Rajeev Kumar Gupta v. Union of India^[19], the SC set aside the instructions of the Indian Government that disallowed promotional reservations for PWD. This was a landmark decision wherein the SC held that wherever posts are identified to be suitable for PWD, reservations extending to not less than 3% must be allowed in both; promotions and direct recruitment alike. This case was argued by the lawyer of the Disability Law Initiative, Rajan Mani, in conjunction with organizations such as the Human Rights Law Network. It represents victory in a hard fought battle organised by PWD for equality of opportunity and representation in the upper echelons of the Indian Government. Before, disabled employees were certainly destined for stagnation at the lower ranks of the organizational structure as their upward mobility within the hierarchy of the organization was muddied because of the emphasis placed on their physical disadvantage.

In this case, Rajeev Kumar Gupta was among eight disabled engineers who served at Prasar Bharti. They raised the grievance that the senior posts in the engineering cadre were mostly filled by way of promotion. The Government was denying PWD of the benefit of a 3% reservation, even though these posts were suitable, effectively defeating the purpose of reservation under the PWD Act. The root cause of the issue was the Government’s written instructions dated 29/12/2005 prohibiting promotional reservations for PWD in Group ‘A’ and ‘B’ posts.

The Government of India relied upon the Indra Sawhney decision of 1993, and reiterated its position before the SC that reservation in promotion for disabled employees was impermissible. The SC did not find favour with this reasoning and was of the view that the object of the PWD Act was to socially integrate PWD through the provision of a 3% job reservation. Recognising that the representation of PWD in Government employment was extremely low, the SC set aside the relevant Government instruction and held that if a job is identified to be suitable for any category of disability, reservation shall be extended whether the mode of recruitment is via direct recruitment or by promotion.

Another significant decision was that of Deaf Employees Welfare Association v. Union of India^[20]. In this petition, a Writ of Mandamus was sought against the Central and State Governments directing them to provide equal transportation allowance to their deaf employees on power with their other disabled employees. Deaf employees received a significantly lower amount than those employees who are blind or have other disabilities. The SC allowed the petition and issued directions to the Respondents to provide the requisite amount of allowance, on an equal footing with blind and orthopedically impaired employees, to the employees with speech and hearing impairments. It was held that there cannot be additional discrimination between the different categories of disability. No such discrimination has been envisaged under disability law. The guarantee of equal protection of law is afforded to all PWD while discharging their functions in Government employment. The State must protect the dignity of individuals with hearing and speech impairments, and any assumption to the effect that individuals with such a disability are less disadvantaged by their disability than an individual who is blind, amounts to a further marginalisation of such individuals. Thus, the same amenities and benefits that are afforded to blind individuals must be provided to individuals who are deaf. Actions of the State to advance this objective are harmonious with the equality of law principle enshrined under Article 14.

The case of the Union of India v. National Federation of the Blind^[21] was the result of an appeal against the decision of the Delhi HC. A petition was filed in the HC seeking implementation of Section 33 of the PWD Act, 1995. It was alleged that the Appellants had failed to provide job reservations to individuals with blindness or low vision. The said individuals were practically excluded from the recruitment process and Government posts as stipulated under the Act. Looking into the calculation of the 3% quota, i.e., whether it is concerned with the number of vacancies or cadre strength, the HC held that it refers to 3% of the total vacancies in the cadre strength. The HC also observed that while Section 33 requires 3% representation of PWD within a Government establishment’s workforce, it is the intent of the Legislature to ensure workforce representation of PWD, in the private as well as public sector, to the extent of 5% collectively.

In the case of the Government of India v Ravi Prakash Gupta^[22], a visually impaired individual (Respondent) appeared and successfully cleared the Civil Service Examination conducted by the UPSC. Even though he featured at SL No. 5 of the merit list, he was not given an appointment. The Central Administrative Tribunal refused his application following which he approached the HC. Consequently, the HC issued directions requiring the Government to accommodate the Respondent into the merit list. The State (Appellant) appealed to the SC against the HC’s decision. It was contended by the State that since the post applied for by the Respondent was not identified and reserved for PWD; the Government could not create reservations in the same. The contention that identification of posts was a precondition to reserving posts and appointment of PWD under Section 33 of the PWD Act, 1995 was rejected by the SC. It was held that while identification of posts under Section 32 is necessary for the purpose of reservation under Section 33 of the PWD Act, 1995, the same was expected to be carried out contemporaneously with the Act coming into force. This was intended to effectuate Section 33, and the use of Section 32 as an instrument to deny disabled individuals of the advantages of Section 33 is contrary to legislative intent.

In the case of Syed Bashir-Ud-Din Qadri v. Nazir Ahmed Shah^[23], the Appellant was an individual with cerebral palsy. He had applied for the post of a ‘teaching guide’ in the State of J and K. While the State Government (Respondent) had initially objected to his appointment on account of his disability, he was appointed under the J and K PWD Act, 1998 pursuant to HC directions. The order of appointment was challenged by the Respondent, and the Appellant was re-examined by the Department of Neurology. The medical report indicated that the appellant’s disability caused severe difficulties with speech and writing, making it extremely difficult for him to carry out the functions of a teacher. Consequently, his order of appointment was quashed and the HC directed that the Appellant be given alternative employment on account of him being unfit for the post in question. Upon dismissal of his appeal by a Division Bench, the Appellant approached the SC.

The SC set aside the order disengaging the Appellant and held that the same goes against the spirit of the law. Accordingly, the SC issued directions for providing reasonable accommodation so as to overcome any impediment arising from the Appellant’s disability. For example, the issue of writing on a blackboard or drawing a diagram could be avoided by the use of electronic aid and an image on a screen. It was also found by the Committee constituted for the assessment of the Appellant’s abilities in the classroom that the students had no difficulty in understanding the subject matter taught by him and that the results achieved in each of these classes was extremely positive.

Further, in the matter of National Association for the Deaf v. Union of India^[24], a PIL was filed before the Delhi HC regarding the absence of Sign Language interpreters in public services. The petition sought directions to authorities such as the Ministry of Social Justice and Empowerment for the purpose of improving access to, and training of Sign Language interpreters. The HC noted the lack of such interpreters, and also recognised the fact that due to this non-availability, persons who are deaf find it difficult to avail medical, banking and transportation facilities. The HC relied on the UN Convention on the Rights of Persons with Disabilities and issued directions to the concerned authorities to undertake surveys for assessing the availability of interpreters and requirements of the same. It directed that nodal officers be appointed to seek information from the concerned authorities and prepare a report on the particulars of training courses for interpreters and creation of posts.

In BhagwanDass and Anr v. Punjab State Electricity Board^[25], the appellant, an Assistant Lineman, became totally blind during his service in the Respondent Board. The Board defaulted by terminating his service instead of accommodating him by providing him with an alternative post as was required under Section 47 of the PWD Act, 1995. The petition was dismissed by the HC of Punjab and Haryana following which an appeal was preferred to the SC.

The SC allowed the appeal by relying on Section 47 of the PWD Act and held that the Respondent had a legal obligation to adhere to the said Section as the Appellant acquired the disability during the course of employment. While elaborating on the provisions of the law, the SC relied on the Court’s opinion in Kunal Singh v. Union of India and Anr^[26] where in it was held that while construing the provisions of a social beneficial legislation, particularly one dealing with disability, the interpretation that forwards the purpose of the Act must be given precedence over an interpretation that hinders and cripples its object. SC interpreted the law in broad terms and took a protective approach towards PWD. It held that the officers in question were duty-bound to follow the law and any bias held by them could not be allowed to defeat the rights of employees with disabilities. It observed that there was a failure on the part of the officers in question to recognise that disabled individuals are citizens with equal rights, and the rights the law permits do not amount to charity.

In Ritesh Sinha v. State of Haryana^[27], the HC passed an interim order staying the dismissal of a clerk of the District and Sessions Judge. The individual had a locomotor disability, and was appointed to a post reserved for persons with physical disabilities. His services were terminated on account of his inability to carry out the work expected of him as a clerk such as writing office notes and maintaining hand-written records. Since the Petitioner was computer savvy, and there was plenty of work that he could undertake, the HC directed the Respondents to reinstate the Petitioner with all benefits. It also issued directions requiring the Respondents to construct a slope/ramp immediately, allowing the Petitioner to access the office space and a compliance report regarding the same was to be presented to the Court.

Concluding remarks

The RPWD Act is the primary disability legislation enacted by Parliament in order to fulfil India’s obligations under the UNCRPD, ratified on 01/10/2007. It seeks to implement the CRPD principles for the empowerment of PWD, demonstrating a paradigm shift in the understanding of disability from a social welfare issue to a human rights concern. The principles sought to be achieved include respect for Inherent dignity, Individual autonomy, encompassing one’s right to choose, Independence of persons, Non-discrimination, Accessibility, Equality of opportunity and participation, Acceptance of differences as part of humanity and human diversity, Gender equality, Evolving capacities of a child with a disability and the right to preserve his/her own identity.

It was passed by the Upper House on 14/12/2016 and the Lower House on 16/12/2016. It received the Presidential Assent on 27/12/2016 and came into force on 15/06/2017, replacing the PWD Act, 1995.

The RPWD Act, 2016 and Rules framed thereunder establish a sound framework within which the rights of PWD are protected. This law needs to be implemented effectively so that the community is able to benefit from the equality of opportunity that underscores the letter and spirit of the law.

References