3% reservation for persons with disabilities - reg.

CHANDRAMOHAN (Querist) 23 October 2014 This query is : Resolved
Ref: DoPT O.M. Dated 29.12.2005 on reservation for persons with disabilities.

Para 2(i) of DopT O.M. Dated 29.12.2005, DoPT has given guidelines that 3% of vacancies in all the Groups "A", "B", "C" & "D" shall be reserved in identified posts suitable for disabled on Direct Recruitment.

&

There is no reservation for Group A and Group B posts in promotion.

Para 4 of DoPT O.M. dated 29.12.2005 stipulates that Ministry of Social Justice and has identified posts suitable for disabled and effect of 3% reservation can be given to all the identified posts. Further stated that, No Ministry/Department/Establishment shall exclude any identified post from purview of reservation at its own discretion.

My First query:

If any Ministry closes the channel of Direct Recruitment for appointing the Group B identified post and 100% of the appointments to the identified Group B posts are made only by promotion on seniority-cum-fitness without giving the benefit of 3% reservation to the persons with disabilities stating that there is no reservation for group B posts in promotion is acceptable or not?

Second Query:

DoPT states that No Ministry/Department/Establishment shall exclude any identified post from purview of reservation at its own discretion.

Is it possible to exclude the identified post from purview of reservation?

Kindly give your opinion and advise.

Thanking you

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Isaac Gabriel (Expert) 23 October 2014

this is not a legal query.Reservation of 3%is applicable for direct recruitment and provision could have been made in the roaster.So no excusion can be made while recruiting to the identified post.

dr g balakrishnan (Expert) 24 October 2014
it is fundamental right of disabled under constitution of india.

so departments cannot have any discretion at all but have to keep open those number of posts under the principle of Legitimate Expectation

Sudhir Kumar, Advocate (Expert) 24 October 2014
please be clear whta do you mean by

"Is it possible to exclude the identified post from purview of reservation?
"

Dr J C Vashista (Expert) 24 October 2014
3% Direct recritment reservation has to made by all ministries/departments/ establishments in terms of Section 33 of the Disabilities Act, which can be surrendered for appointment of general catagory candidate (for a particular appointment) which has to be reverted/ released back from amongst available vacancies for consumed seat/post in next appointment), if suitable candidates are not available in the specified diability viz; hearing impairment, orthopeadratics and blindness.
The action of DoPT may be challanged if any such appointment is excluded from any such appointment, if DoPT is unable to justify such exclusion.

Sudhir Kumar, Advocate (Expert) 24 October 2014
agreed with Dr Balakrishnan.

reservation in PH capacity is not only a legitimate expectation rather it is statutory requirement under
"Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995."

The right is not fundamental. It is a legal right created by parliament abridging Art 14&16, providing statutory "procedure established by law" for protection of disabled persons"

The obligations arising out of this act are not discretionary but obligatory and the Act also provides for remedial forum :-

visit http://www.ccdisabilities.nic.in/