(Equal Opportunity Protection Of Rights And Full Participation) Act, 1995 And Role Of Judiciary
Chapter - VI titled as Employment, Chapter - VII titled as Affirmative Action and Chapter - VIII titled as Non-Discrimination of this Act are relevant for the purposes of grant and protection of Economic Rights of persons with disabilities. Broadly, these chapters have incorporated the following strategy to empower persons with disabilities to enjoy Economic Rights:
a) Section 32 of Chapter V provides that the appropriate government shall identify posts in the establishments which can be reserved for the persons with disabilities and also review at periodical intervals the list of posts identify for its updating.
b) Extension of 3% reservation in favour of persons with disabilities of which 1% each shall be reserved for the persons suffering from blindness or low vision, hearing impairment, loco motor disability or cerebral palsy, in all posts every establishment belonging to appropriate government (both central and state governments) and local authorities (Section 33);
c) Section 36 also provides for carry forward of unfilled vacancies to the succeeding recruitment year and if in the succeeding year also suitable persons with disability is not aware it may be filled by interchange among the three categories. If however there is no person with disability available for the post in that year, the employer shall fill up the vacancies by appointment of a person other than a disabled person.
d) Reservation of vacancies/benefits in poverty alleviation schemes (Section 40);
e) Provision of incentives to employers both in public and private sectors for ensuring that at least 5% of their workforce is composed of persons with disabilities (Section 41);
f) Provision for giving aids and appliances to persons with disabilities by appropriate Government (Section 42);
g) Scheme for preferential allotment of land at concessional rates to persons with disabilities for setting up business/factories etc. (Section 43);
h) Provision of accessibility features on roads to enable free movement of persons with disabilities (Section 45);
i) Provision for making the built environment accessible and useable by persons with disabilities (Section 46);
j) Protection of service of an employee in the government establishment who acquires disability during service (Section 47(i));
k) Non-discrimination in the matter of promotion on the ground of disability (Section 47(ii)).
Section 47 of the provides that no establishment shall dispense with or reduce in rank and employee who acquires a disability during his service.
In Kunal Singh v. Union of India and Anr. , the Apex Court considered the issue as to whether the services of an employee who incurs any disability during such service could be dispensed with one on the ground of such disability. The court was considering the case of the appellant, a constable for 17 years in Special Servive Bureau of Union of India suffering amputation of a leg on account of an injury caused while on the duty. The medical Board had declared him to be permanently incapacitated and therefore appellant was invalidated from service. His petition before the High Court challenging he action of the government and seeking relief by way of alternative duty, which he could discharge, was dismissed by the High Court. Allowing the appeal the Apex Court held that merely because the appellant got invalidity pension is no ground to deny mandatory protection made available under the Act. Once he was found not suitable for the post he was holding, he could be shifted to some other post with same pay scale and service benefits and if that was not possible he could be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation. Order affirming the termination of the services was therefore set aside and Union directed to give relief in terms of section 47 of the Act.
Section 47 again came into action in the authority of Union of India (UOI) v. Sanjay Kumar Jain , where the respondent while working in Group-C post of the Railways applied for promotion to Group-B post. He qualified in the written test and was directed to undergo medical examination as per the rules of the Indian Railway Establishment Manual (in short the 'Establishment Manual'). Passing of the medical test is a requirement before the candidate is called for viva voce test. He was considered unfit as he may become visually handicapped in future. The respondent was therefore not called for viva voce test. He challenged before the CAT the order whereby it was indicated that he was not to be called for viva voce test as he had been declared medically unfit. It was held that while considering the case of the respondent sub-sections (1) and (2) of section 47 were not kept in view. Which provide for protection of service of an employee in the government establishment who acquires disability during service and non-discrimination in the matter of promotion on the ground of disability. CAT also took note of the fact that a new paragraph 189A was introduced in the Establishment Manual which clearly laid down that there shall not be discrimination in the matter of promotion merely on the ground of physical disability. When in appeal it was contended that sub-section (2) Section 47 of the Act permits the appropriate Government to exclude by notification any establishment from the provisions of the section. It was said that it only permits the appropriate Government to specify by notification any establishment which may be exempted from the provisions of section 47. The notification can be issued when the appropriate Government having regard to the type of the work carried on in any establishments thinks it appropriate to exempt such establishment. The proviso to sub-section (2) thereof does not operate in the absence of the notification.
Giving a wider meaning to the term disability, the Delhi High Court has ruled that a person suffering from heart ailment is entitled to the benefits of the Disabilities Act for the purpose of employment in the government.
In the light of ruling pronounced by the Hon’ble Supreme Court on 23/12/96 in the case of S.S. Tiwari v. Union of India, civil writ petition 585/94, a ceiling of 5% discretionary/out of turn allotment of the total number of vacancies occurring in each type of houses in a year has been fixed. These include allotment of Government accommodation on medical grounds, security grounds as well as functional grounds within this overall ceiling of 5%.
There are other provisions to ensure overall protection of the disables such as CCS (Pension) Rules, 1972, under which Rule 38 provides for grant of invalid pension to a government servant who retire from service on account of any bodily or mental infirmity which permanently incapacitates him form the service.
In accordance with the provision of rule 54(6) of the Pension Rules, if the son or daughter of the government servant is suffering from any disorder of disability as renders him or her unable to earn a living after attaining the age of twenty-five years, the family pension shall be payable to such son or daughter for life. However, in case such son or daughter is one among two or more children of the government servant the family pension shall be initially payable to the minor children in the order of their birth and the younger of them will not be eligible for the family pension unless the elder next above him/her has become illegible for the grant of family pension. Thus minor children have a prior claim for family pension till they attain the age of 25 years and son/daughter suffering from disability, the family pension shall be paid in the order of their birth and the younger will get the family pension only after the elder next above him/her ceases to be eligible.
The CCS (Leave) Rules,1972 under rule 44 provide for special disabilities leave for injury intentionally inflicted. The rule provides that the competent authority may grant special disability leave to a government servant, whether permanent or temporary, who is disabled by injury intentionally inflicted or caused in, or in consequence of the due performance of his official duties or in consequence is of his official position.