A “disheartened” Supreme Court asked the NDA government to investigate the “barriers” preventing disabled persons from entering government service, especially into the higher ranks, despite a 21-year-old law making it the state’s obligation to provide them at least three per cent reservation in public sector jobs.
“The intent is to turn persons with disability (PWD) into ‘agents of their own destiny’... The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted to fulfill India’s obligations under the ‘Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region’. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act,” a Supreme Court judgment by a Bench of Justices J. Chelameswar and A.M. Sapre observed.
The apex court said the government must scrutinise the barriers to their entry by rigorous standards within the legal framework of the 1995 Act.
The apex court observed that there is hardly any representation of disabled persons in higher governmental hierarchy despite certain posts having been identified as suitable for them.
Laying down the law, the judgment, authored by Justice Chelameswar, held that once a post is identified by the government as suitable for appointment of a disabled person, it should be reserved for them irrespective of the mode of recruitment adopted by the State. “Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 (of the 1995 Act) to an extent of not less than three per cent must follow,” the court held.
Dismissing the government's argument that “providing for reservation [for disabled persons] in higher-level posts is constitutionally impermissible,” the court observed that the basis for preferential treatment is solely their physical disability and not factors banned by the Constitution like caste and religion.
The case dealt with the legality of two office memoranda issued by the Department of Personnel and Training in 1997 and 2005 placing an obstacle in the way of disabled persons entering the upper strata of the public broadcasting corporation, Prasar Bharati.
Though the government had identified and reserved certain posts suitable for PWD in the A and B category of jobs in Prasar Bharati, the memoranda said vacancies would be filled only through direct recruitment. This had denied disabled persons in the C and D category any chance of promotion to the higher ranks.
“Government of India has created an arbitrary and irrational distinction by excluding identified posts in Groups A and B from the benefit of three per cent reservation,” the judgment quoted from the appeal filed by a group of disabled persons alleging that the memoranda denied them equal rights and opportunities enshrined in the Constitution.
