dear srinivas,
a very good message. but can you briefly summarize it particularly the
implications so that a legally challenged like me also understand?
Umesha
----- Original Message -----
From: "srinivas.karnati" <srinivas.carn...@gmail.com>
To: <accessindia@accessindia.org.in>
Sent: Friday, 19 October, 2012 8:54 PM
Subject: [AI] Fw: DRAFT BILL 2012
dear accessindians good evining to all of you. i am forwarding this mail
because the subject is very important
----- Original Message -----
From: A. KUMARESAN
To: tarat...@gmail.com
Sent: Thursday, October 18, 2012 5:16 AM
Subject: DRAFT BILL 2012
Sir,
Recently Government of India have undertaken the process
to bring about the extensive amendments to the Persons with Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995. This decision is a welcome measure. It is deeply appreciated that
the decision of the Government of India ratifying the UN Convention on
Rights of Persons with Disabilities. However, the concern is much deeper.
Prior to the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995
coming into force, Government of India had, by administrative
instructions, like DOPT OM dated 04.09.1985 and 20.11.1989, provided
reservation for disabled persons in Group “C” & “D” posts. This is
somewhat similar to what the SCs/STs employees enjoying in Government
Service with an unique feature that reservation is provided in identified
posts
After the Disability Act came into force, such a
reservation was permissible even for Group “A” & “B” posts. This led the
DOPT to issue OM dated 18.02.1997 (Annexures – I and IA). As per this OM,
for Group “A” & “B” posts, the reservation was only at induction level.
Significant corrigendum was issued by the DOPT vide OM dated 04.07.1997
(Annexure- II), which extended the point number 1, 34 and 67 in cycle of
100 vacancies in the 100 point register and marked for reservation for
disabled employees.
It is clear from the above that point No.1, 34 and 67 in
the cycle of 100 are now earmarked for reservation for disabled employees
and thus reservation is admissible even for Group “A” & “B” posts in
promotion category also and not only at the induction level. This OM is
brought in tune with the letter and spirit of Section 33 of the above Act
which stipulates not less than 3% reservation in an establishment in the
post identified for each disability.
Vide O.M. dated 16.01.1998 (Annexure –III), sub-para (ii)
of OM dated 18.02.1997 (Annexure – I) was replaced as under:- (ii) The
existing policy of reservation for SCs/STs, including for the physically
handicapped in promotion in all Groups is applicable to all grades and
services, where the element of direct recruitment does not exceed 75%.
Hence, it is not in dispute that reservation exists for disabled employees
in promotion for the post in respect whereof the element of direct
recruitment does not exceed 75%. From the above, it is very clear that
reservation to disabled exists not only at induction level but also for
promotion.
All these DOPT OMs referred to above have been issued
after enactment of the above Act and in some OMs the said Act has been
referred to. However, in suppression of all the above OMs, the DOPT vide
its OM dated 29.12.2005 (Annexure – IV), has restricted reservations only
in induction level to all cadres and in promotions to Group “C” and “D”
cadres only. It is also appropriate to mention here that most of the posts
of Group ”C” have now become Group “B”, without providing any safety
clause of reservation and relaxation to disabled employees, which they
have been enjoying before it’s up-gradation as Group ‘B’ posts and Group
“D” posts have been abolished now in response to the recommendations of VI
Pay Commission.
The DOPT OM dated 29.12.2005 was issued with
a view to consolidating the existing instructions, purportedly bringing
them in line with the Persons with Disabilities (Equal Opportunities,
Protection of Rights & Full Participation) Act, 1995 and clarifying
certain issues including procedural matters with regard to reservation for
persons with disabilities in posts and services under the Government of
India and this OM is said to have superseded all previous instructions
issued on the subject so far. But, “consolidate” means, as per dictionary
meaning, “merge”, “combine”, “unite”, “join”, “strengthen”, “secure” etc
and not “disregard” or “ignore” which means the existing OMs can be
clubbed / joined together and no OM can be ignored or disregarded. But
the DOPT has disregarded all the DOPT OMs cited in the preceding
paragraphs which allowed reservation not only for direct recruitment but
also for promotion in all cadres of Group ‘A’, ‘B’, ‘C’ & ‘D’ and
blatantly stated to have issued with a view to consolidating the existing
instructions on the matter. It is not known why DOPT has made such a
betrayal to disabled people. It is a well noted principle that the
Parliament has made the above Act for the benefits of the disabled and it
is mandatory to amend the Act through parliament only if Government
decided to remove the above benefit. It is not known whether the procedure
has been followed by DOPT. Moreover Section 72 of the above Act says that
the provisions of this Act, or the rules made there under shall be in
addition to, and not in derogation of any other law for the time being in
force or any rules, order or any instructions issued there under, enacted
or issued for the benefit of persons with disabilities.
Due to removal of promotional benefits to Group ‘A’ and
‘B’ posts to disabled employees vide DOPT OM dated 29.12.2005, they have
no other option except to redress their grievances through courts by
spending huge amounts. Several Hon’ble High Courts (Annexure – V, V.A, VI
and VI.A) have also given favourable judgements to disabled employees. It
is learnt that some of these cases are pending in Hon’ble Supreme Court on
appeal by Government thereby denying the benefit of reservation in
promotion to disabled employees for the past 17 years (PWD Act came into
existence from the year 1996).
Similarly, I furnish the following instances
where the relaxation of standard has been extended to physically
challenged employees on par with SCs/STs employees. While relaxation in
standards is allowed disabled in Direct Recruitment, the same is denied to
Departmental Promotion Examination.
(i) DOPT vide OM dated 04.09.1985 issued
instructions on relaxation of standards to physically challenged employees
on par with SCs/STs (Annexures – VIII, VIII(i) and VIII(ii)).
(ii) The Hon’ble Supreme Court of India pronounced a
ruling on 19.03.2002 in W.P.No.115/1998 and Hon’ble Delhi High Court in
W.P.(C) No.4853 of 2012 dated 06.09.2012 allowing all physically
challenged candidates to treat them on par with SCs/STs in the matter of
providing relaxation in qualifying marks (Annexures – IX & IX(a)).
(iii) The Chief Commissioner for Persons with
Disabilities of India has also pronounced a similar ruling on the above
matter in favour of disabled candidates of IIT aspirants (Case No:
1/1011-5471/2008 dated 07.08.2008) (Annexure - X).
(iv) BSNL, vide their letters dated 12.10.2004 and
20.01.2005, has provided relaxation in qualifying marks on par with
SCs/STs in the departmental promotion examinations for JAOs (Annexure XI
and XII).
Government agencies and NGOs have a good number of
statistics and data about the plight of disabled persons. But it is not
by furnishing various statistical figures and data but by common sense and
common scene all over the country that the conditions of disabled are very
poor comparing to other sections of the society particularly the SCs/STs.
Hence, reservation to disabled persons in Government service is required
not only for Direct Recruitment but also for promotion for the welfare and
empowering the persons with disabilities. Nobody is against providing
reservation to SCs/STs. While the government of India have gone to the
extend of amending the Constitution of India in favour of SCs/STs, the
same benefit is denied to disabled whose conditions are worst than the
SCs/STs in the society who require the benefits and schemes on par with
SCs/STs if not provided more than SCs/STs.
The states like Andhra Pradesh and Goa, taking into
account the right spirit of the Section 33 of the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 (Annexure – VII) have extended the benefit of
reservation to disabled employees to the cadre of Group ‘A’ and ‘B’ posts
in promotion also. Since, DoPT OM dated 29.12.2005 is not in consistency
with the Sections 33 and 72 of the said Act and earlier order issued on
the subject by DOPT, Government should consider repealing the above OM
dated 29.12.2005, by suitably including DOPT OM dated 04.09.1985 in para
22 of the OM dated 29.12.2005 treating the disabled employees on par with
SCs/STs with regard to qualifying standard in both direct recruitment and
promotion and make applicable reservation in promotion also to Group ‘A’
and ‘B’ cadres under Government of India from the year 1996 i.e. from the
date of effect of the above Act.
Repealing of the DOPT OM is necessitated due to the
reasons that the DOPT while compiling / consolidating the OM dated
29.12.2005 has disregarded / ignored / neglected not only the earlier OM
issued on the subject but also the welfare and empowerment of persons with
disabilities. The same is witnessed from the beginning para of the DOPT
OM dated 29.12.2005 which even misspelled the spelling of the word
‘supersede’ as ‘supercede’.
In the light of the above observations, adding fuel to
the fire, it is distressing to note that the Ministry of Social Justice &
Empowerment has issued a Draft Disability Bill 2012, claimed to be
submitted to the Parliament during the coming winter session, has gone
entirely against the interest of the disabled and Sudha Kaul’s Committees
recommendations with regard to employment despite existence of above
justification.
My critique on the Disability Bill, 2012 is attached
captioned as “Critiques on Draft PWD Bill 2012 on Reservation and
Concession to disabled”. Since, the action of the Ministry of Social
Justice & Empowerment is against the interest of the thousands of disabled
employees across the country, against empowerment of persons with
disabilities, against welfare of the persons with disabilities, against
UNCRPD for which India is a signatory and against National Policy of
Persons with Disabilities, I request you to take the matter at the
appropriate forum so as to enable the thousands of disabled employees
across the country not to loose their entitlements and rights but get
their due rights and benefits.
With regards,
A. KUMARESAN
CHENNAI
a_kumares...@yahoo.co.in
CRITIQUES ON DRAFT PWD BILL 2012 ON RESERVATION AND CONCESSION
TO DISBLED WORKING IN GOVERNMENT/PSUs/AUTONOMOUS BODIES ETC.
S. No.
Matter
Disability Bill 2011 as recommended by Sudha Kaul
Committee
Disability Bill 2012 as published by M/o Social Justice
and Empowerment
Remarks
1
Transfer
Section 56(6)
An establishment shall not ordinarily post and transfer a
person with disability in a place other than his or her native place or
within the vicinity of such place unless such transfer becomes necessary
due to exigencies of the job and expertise possessed by the person with
disabilities.
No provisions found.
Statutory provision for posting / transfer of disabled
employees to or near their native places are required as DOPT OM issued on
the subject are not implemented by Government in earnest sprit.
2
Reservation in government jobs.
57. Reservations
All establishments shall reserve not less than seven
percent of all posts and in promotions for persons with disabilities
Section 39(1)
Every appropriate government shall reserve, in every
establishment under them, not less than 5% of the vacancies meant to be
filled by direct recruitment, for persons or class of persons with
benchmark disability.
Several Hon’ble `High Courts have given favourable
judgement to provide reservation in direct recruitment as well as in
promotion.
For empowering persons with disabilities, providing
stable economic conditions, improving the quality of life style and bring
up the children of disabled employees on par with other people of the
society, reservation in promotion is a must. Further, restricting
reservation only at induction level will lead the disabled towards
starvation and unemployment.
While the government of India have gone to the extend of
amending the Constitution of India in favour of SCs/STs, the same benefit
is denied to disabled whose conditions are worst than the SCs/STs in the
society who require the benefits and schemes on par with SCs/STs if not
provided more than SCs/STs.
Further, Sudha Kaual Committee recommended 7% of all
posts. But the ministry recommended 5% of vacancies. From the above one
can easily judge the intention of the ministry as to whether the ministry,
who is supposed to be the nodal ministry for the welfare of the disabled,
is for the welfare of the disabled or they want to wipe out the disabled
community who want to be always under somebody’s mercy without dignity.
3
Lapse of reserved posts
Section 57(3)
If sufficient number of qualified persons with
disabilities are not available in a particular year, then the reservation
may be carried forward to the subsequent year, and if in the subsequent
recruitment year also a suitable person with disability is not available,
then the post may be first filled by interchange among the categories, and
if the vacancy is still not filled then the establishment shall identify,
train and then induct persons with disabilities on the post. In no case
shall a post to which a person with disability is entitled to be appointed
be allowed to lapse.
Section 39(2)
If sufficient number of qualified persons with benchmark
disabilities are not available in a particular year, then the reservation
may be carried forward for upto the next three recruitment years, and if
in such succeeding recruitment years also a suitable person with benchmark
disability is not available, then the post in the fourth year may be first
filled by interchange among the categories of disabilities; and only when
there is no person with any benchmark disability available for the post in
that year, the vacancy may be filled by appointment of a person, other
than a person with benchmark disability.
The Sudha Kaul Committee’s recommendations in this regard
should be implemented in total. Providing reservation for a post and
allowing the reservation to lapse for want of candidates, makes the
reservation a meaningless exercise. Even the concept of ‘zone of
consideration’ and ‘extended zone of consideration’ in case of promotion
should go away and posts in question should be filled on the basis of
available disabled man power.
4
Relaxed standard
Section 49(2)
All appropriate governments and educational authorities
may if they deem fit to promote equality of opportunity relax according to
prescribed procedure the minimum qualification criteria required to be
obtained by persons with disabilities who seek admission to a higher
education institution.
No provisions found.
Relaxation of qualifying marks has been allowed to SC/ST
candidates in Departmental Promotion Examinations. While the physically
challenged employees of the SC/ST communities enjoy this benefit, the same
is denied to other physically challenged employees. The following cases
where the relaxation of standard has been extended to physically
challenged employees on par with SCs/STs candidates are furnished.
(1) DOPT vide OM dated 04.09.1985 issued instructions
on relaxation of standards to physically challenged employees on par with
SCs/STs
(2) The Hon’ble Supreme Court of India pronounced a
ruling on 19.03.2002 on the W.P.No.115/1998 allowing all physically
challenged candidates to treat them on par with SCs/STs in the matter of
providing 5% relaxation in qualifying marks.
(3) The Hon’ble Delhi High Court pronounced a similar
ruling on 06.09.2012 on W.P.(C) No.4853 of 2012 in favour of a disabled
student who sought admission Delhi Technological university.
(4) The Chief Commissioner for Persons with
Disabilities of India has also pronounced a similar ruling on the above
matter in favour of disabled candidates of (i) IIT aspirants (Case No:
1/1011-5471/2008 dated 07.08.2008) and (ii) Postal Department (Case No.
3810/07 dated 17.08.2007).
(5) BSNL, vide their letters dated 12.10.2004 and
20.01.2005, has provided relaxation in qualifying marks on par with
SCs/STs in the departmental promotion examinations for JAOs.
Despite existence of all the above justifications,
relaxation in qualifying standard is not provided to disabled employees in
Departmental Promotion Examination while extending the same in Direct
Recruitment. The only way to protect the interest of the disabled is to
provide statutory provisions.
5.
Provision against retrenchment of a disabled employee.
Section 56
(2) No establishment shall dispense with, or reduce in
rank, an employee who acquires a disability during service, such employee
may if required by the nature of disability, be shifted to another post
with the same pay scale and service benefits.
Provided further that if it is not possible to adjust the
employee against any post, then such employee may be kept on a
supernumerary post until a suitable post is available or the age of
superannuation whichever is earlier
(3) The protection accorded in sub section (2) shall also
be extended to persons employed with the defense forces;
Provided that this sub section in no way precludes the
defense establishment to formulate a more beneficial employment retention
and rehabilitation scheme for persons employed with the defense forces.
Section 25(3)
(3) No establishment shall dispense with, or reduce in
rank, an employee who
acquires a disability during service,
Provided that such employee may, if required by the
nature of disability, be shifted to another post with the same pay scale
and service benefits;
Provided further that if it is not possible to adjust the
employee against any post, he may be kept on a supernumerary post until a
suitable post is available or
he attains the age of superannuation, whichever is
earlier;
Provided that the appropriate Government may, having
regard to the type of work carried on in any establishment, by
notification and subject to such conditions, if any, as may be specified
in such notification, exempt any establishment from the provisions of this
section.
Using the safely clause provided in the Bill 2012,
Government may exempt any establishment from the provisions of this
section defeating the purpose of the Section. Hence, the Sudha Kaul
Committee’s recommendations in this regard should be implemented in total.
6.
Tax
Section 131
Notwithstanding anything contained in the Wealth-tax Act,
1957 (27 of 1957), the Income-tax Act, 1961 (43 of 1961), or any other
enactment for the time being in force relating to tax on wealth, income,
profits or gains, the National Disability Rights Authority and State
Disability Rights Authority shall not be liable to pay wealth-tax,
income-tax, or any other tax in respect of their wealth, income, profits
or gains derived.
Section 122
Notwithstanding anything contained in the Income-tax Act,
1961, or any other law for the time being in force relating to tax on
income, profits or gains, the Trust shall not be liable to pay income-tax
or any other tax in respect of its income, and profits or gains derived
therefrom.
The Bills 2011 and 2012 have not recommended any tax
benefits to the individual disabled persons.
It is a good step that senior citizens are provided with
more tax benefits because with advancing age, older people do need that
extra care and protection. Their expenses on medical care, the need for an
attendant, etc. go up. Therefore, if they are given some relief from
taxation, they can use that extra money to fund their extra needs that
develop due to the old/very old age.
Similarly, it would not require a very long argument to
prove that the needs of a disabled person are much greater than a say 80
or 85 year old senior citizen. The need for full time carers, the
astronomical amounts spent on medicines and rehabilitation.
Hence, it is expected that people with disabilities are
exempted from paying of all kinds of taxes including income tax. Needless
to say, the same concession should also be available to the parents of a
dependent disabled child or disabled person, especially in the case of
parents of children/people with psychosocial and intellectual and
developmental disabilities.
7.
Political participation
Section 32. Right to Political Participation
(1) Notwithstanding anything contained in the
Representation of the People Act (No. 43 of 1950), the Representation of
the People Act (No. 43 of 1951) or any other law for the time being in
force, every person with disability who fulfills all the eligibility
requirements shall be entitled to be registered as a voter and shall not
be held disqualified to exercise his or her right to vote on the ground of
disability irrespective of any stipulation to the contrary in any law for
the time being in force18;
(2) Notwithstanding anything contained in the law for the
time being in force, any person with disability who is unable to cast vote
in person due to his or her disability or because of admission in any
establishment maintained wholly or mainly for the reception and treatment
of persons with disabilities at the time the poll is taken shall be
entitled to vote by postal ballot and provisions shall be made, by rules
made under the Representation of the People Act (No. 43 of 1951) to enable
such voting;
The Rights of Persons with Disabilities Bill, 2011
(3) The Election Commission shall ensure that all polling
stations are accessible to persons with disabilities and that all
materials related to the electoral process are easily understandable by
and accessible to persons with disabilities;
(4) Without prejudice to the generality of the provisions
contained in sub–section (3), the measures undertaken by the Election
Commission in pursuance of that sub–section shall include:
a. the construction and availability of ramps at all
polling booths;
b. separate queues for persons with disabilities at all
polling booths with clear pictorial signs;
c. the availability of ballot papers and/ or electronic
voting machines with candidates’ information available in Braille and
other accessible formats;
d. the fitting of audio devices to electronic voting
machines;
e. training programs to sensitise polling officers about
the special requirements of persons with disabilities.
(5) If the presiding officer is satisfied that, due to
disability, a person with disability is unable to recognise the symbols or
to record vote without assistance, the presiding officer shall permit the
elector to take a companion of not less than eighteen years of age to the
voting compartment for recording/ casting the vote;
(6) Every person with disability is entitled to form and
be a member of any organization or association in accordance to choice.
Section 19. Right to Political Participation
(1) The Election Commission of India and the State
Election Commissions shall ensure that all polling stations are accessible
to persons with disabilities and that all materials related to the
electoral process are easily understandable by and
accessible to persons with disabilities.
(2) Without prejudice to the generality of the provisions
contained in sub–section (1),
the measures undertaken by an Election Commission in
pursuance of that sub–section shall include:
a. the construction and availability of ramps at all
polling booths;
b. separate queues for persons with disabilities at all
polling booths with clear
pictorial signs;
c. the availability of ballot papers and/ or electronic
voting machines with
candidates’ information available in Braille and other
accessible formats;
d. the fitting of audio devices to electronic voting
machines;
e. training programs to sensitise polling officers about
the special requirements
of persons with disabilities.
(3) If the Presiding Officer of a polling booth is
satisfied that, due to disability, a person with disability is unable to
recognise the symbols or to record vote without assistance, the presiding
officer shall permit the elector to take a companion of not less than
eighteen years of age to the voting compartment for recording / casting
the vote.
1) The Village Local Bodies, State Legislative
Councils, Rajya Sabha etc. should have an appropriate number of nominated
members from disabled community so that they can put forward their
suggestions / demands and fight for their rights.
2) Reservation should also be provided at Village
Local Bodies, State Legislative Assemblies, Lokh Sabha etc. so that they
can put forward their suggestions / demands and fight for their rights.
Prepared by
A. KUMARESAN,
Chennai.
Search for old postings at:
http://www.mail-archive.com/accessindia@accessindia.org.in/
To unsubscribe send a message to
accessindia-requ...@accessindia.org.in
with the subject unsubscribe.
To change your subscription to digest mode or make any other changes,
please visit the list home page at
http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
Search for old postings at:
http://www.mail-archive.com/accessindia@accessindia.org.in/
To unsubscribe send a message to
accessindia-requ...@accessindia.org.in
with the subject unsubscribe.
To change your subscription to digest mode or make any other changes, please
visit the list home page at
http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
