Are the Employment Provisions in the New Disability Act Satisfactory?

By Viswesh Sekhar (email: mail2viswesh@gmail.com)

INTRODUCTION

Integration of persons with disabilities into the mainstream is possible and can be achieved to a greater extent when they are gainfully employed. Gainful employment of persons with disabilities breaks the nexus between poverty and disability and has fallouts that lead to the empowerment of persons with disabilities as well as for the entire economy.

Under the present statutory regime, the Government has to provide reservations in jobs in the public sector and any kind of discrimination, including denial of promotions, is bad in law. As a measure of affirmative action, reservation of jobs in the private sector is also provided for but is incentive driven. Apart from a 4% reservation for persons with benchmark disabilities in Government Establishments, the aim is to have at least 5% of the workforce in the private sector to consist of persons with disabilities.

The Rights of Persons with Disabilities Act, 2016 (RPD, 2016) which is aimed to bring disability legislation in India in line with the United Nations Convention on the Rights of Persons with Disabilities (CRPD) has also provided for non-discrimination, accessibility and reasonable accommodation either in the statute itself or in the rules framed thereunder. These provisions when read together with the provisions made relating to employment are drastic departures from the provisions in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PwD Act, 1995).

PROVISIONS IN THE PERSONS WITH DISABILITIES ACT, 1995

The PwD Act, 1995 is a pre-Convention legislation enacted to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region adopted in Beijing in December 1992. It now stands repealed with the passage of the RPD Act, 2016. Chapter VI of the PwD Act, 1995 dealt with employment. The Act which specified eight disabilities provided for a three percent reservation in Government Employment for persons with disabilities. Section 33 of this Act reserved 1% of posts to persons suffering from blindness or low vision, 1% of posts for the hearing impaired and 1% of the posts for persons suffering from locomotor disability or cerebral palsy. Section 32 stated that the Appropriate Government shall identify the posts and such identification shall be subject to revision every three years. Section 36 provided for carrying forward of unfilled vacancies.  Section 38 provided power to start schemes for the employment of persons with disabilities.

Section 41 provided that the Government, subject to the limits of its economic capacity and development, provide incentives to both the public and private sector, in order to ensure that at least 5% of workforce consisted of persons with disabilities.

Section 47 forming part of Chapter VIII of the Act (Non-Discrimination) provided that the Government Establishments or Government Companies shall not discriminate on the grounds of disability in the matter of promotions for a person with disability even when the disability is acquired during service. Dispensation of the services of a person with disability was expressly forbidden.

Being a pre-Convention legislation, the PwD, 1995 was found lacking in many areas. There were no express provisions for non-discrimination at the workplace, accessibility or reasonable accommodation and fell well short of the standards set forth in the CRPD Convention regarding employment.

CRPD PROVISIONS

India signed the CRPD in 2007. The CRPD is  a “rights based charter” for persons with disabilities and departs from the medical and social models of disability. The CRPD in Article 27 provides, inter alia,  that States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities and that States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment.

The right to work on an equal basis with others thus requires the provision of reasonable accommodation and accessibility. The work environment should also be open and inclusive. Discrimination of any nature is by implication forbidden. It must also be noted that non-discrimination and reasonable accommodation are basic guiding principles of the CRPD and rights in themselves. The denial of reasonable accommodation is considered a violation of a right.

PROVISIONS IN THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016

The RPD Act, 2016 is an attempt to bring the domestic disability legislation in line with the CRPD. Thus it has provisions that are   rights based rather than on the charity or social model of disability. It has elaborate definitions of concepts like barriers, (Section 2 (c)), discrimination, (Section 2 (h)). Government establishment (Section 2(k)), Private establishment (Section 2(v)), reasonable accommodation (Section 2(y)) and Special Employment Exchange (Section 2(zb)). Chapter II are Rights and Entitlements and include the right to equality and non-discrimination, (Section 4) rights against exploitation and abuse (Section 7), access to justice (Section 12) etc. Section 5 makes specific provisions for women and children with disabilities. Special provisions have been made in Section 24(3)(d) for schemes for livelihood for women.

The RPD Act unlike its previous counterpart does not define disabilities and limit the number of disabilities, The RPD Act has followed the CRPD and defines a person with disability (in Section 2(s) as a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others. A person with benchmark disability (for whom there are specific provisions and concessions in work and employment) is a person with disability who has 40% or more of a specified disability.

While the PwD Act listed out only seven disabilities, the RPD Act has a Schedule with 21 disabilities including dwarfism and acid attack victims. There is also a residuary category in Entry Six which enables the Central Government to include other categories of disabilities.

Apart from retaining job reservations (the percentage of which have increased) in the public, the RPD Act of 2016 has other provisions that are noteworthy. A summary of these provisions is described in the following 10 points.

  1. The term establishment includes a private establishment as per Section 2(i). Government Establishment is defined in Section 2(k) to mean a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 and includes a Department of the Government  Private establishment according to Section 2(v) means and includes company, firm, cooperative or other society, associations, trust, agency, institution, organisation, union, factory or such other establishment as the appropriate Government may, by notification, specify; This clearly means that the disability legislation applies with equal force to private establishments. Private establishments are also to endeavour to ensure that they employ five per cent of their work force consists of persons with disabilities.
  2. A public building includes a place of employment. This would go a long way to making the lives of persons with disabilities easier as these buildings would have to be accessible to persons with disabilities.
  3. Reasonable Accommodation has been defined and government employers have to provide reasonable accommodation vide Section 20(2). Reasonable Accommodation is defined in the same manner as in the CRPD.
  4. There shall be no discrimination in employment by the Government. Such a clear provision did not exist in the PwD Act, 1995.
  5. There shall be an Equal Opportunity Policy for every establishment vide Section 21. Section 22 mandates maintenance of records and Section 23 has made provision for the appointment of a Grievance Redressal Officer to address issues regarding problems in this area.
  6. Vocational Training and Self-Employment have been given a thrust in Section 19 such that “The appropriate Government shall formulate schemes and programmes including provision of loans at concessional rates to facilitate and support employment of persons.”
  7. Provision for Social Security has been made under Section 24. No such provision existed under the PwD Act, 1995.
  8. Termination or reduction of rank of an employee who has acquired a disability is not possible. This provision has been retained from the PwD Act, 1995.
  9. There is a horizontal reservation of 4% of government jobs and incentive based reservation of jobs in the private sector. The percentage of reservation has gone up by one per cent.
    Section 35 provides incentives to the private sector for employing persons with disabilities. The private sector is expected to employ five per cent of its workforce consisting of persons with disabilities.
  10. Provisions have been made for the setting up of special employment exchanges under Section 37.

RULES AND REGULATIONS

The RPD Act, 2016 was notified on April 19, 2017. The RPD Rules were gazetted on June 15, 2017. Most of the Official Memoranda (OM) and Orders made under the PwD Act, 1995, however continue to remain in force and have not been modified or recalled.

Reserved Posts for persons with disabilities was identified through OM dated December 29, 2005 (Reservation for the Persons with Disabilities No. 36035/3/2004-Estt(Res)). A three-Judge Bench in Union of India v. National Federation of the Blind [(2013) 10 SCC 773] found fault with this OM and directed its modification. The Department passed an OM dated January 6th 2015 (Amendment in Para 15(i) of OM dated 29.12.2005 No. 36035/4/2013-Estt.(Res))stating that reservation for the persons with disabilities in Group ‘A’ or Group ‘B’ posts shall be computed based on total number of vacancies occurring in direct recruitment quota in all the Group ‘A’ posts or Group ‘B’ posts respectively, in the cadre. This government order still holds good and has not been superseded after the new Act has come into place.

A review of identified posts was conducted and the necessary OM was passed on 8th January 2014. (Identification of jobs/posts for persons with Disabilities- review thereof. No. 36035/2/2012-EctL(Rec)). The next review has not yet been conducted and the posts under the new RPD Act, 2016 are yet to be identified. No. 36035/02/2017-Estt (Res) dated 20th June 2017 has been issued asking for suggestions from all departments and the general public as to the Reservation of Posts for Persons with Disabilities within fifteen days of the OM.

OM No. 36035/4/2003-Estt(Res) deals with appointment of persons with disabilities to unreserved vacancies and states that as long as it is an identified post, a person with disability can apply for the said post and the post is found suitable in the relevant category.

With respect to acquired disability during service, although Government Servants were protected under Section 47 of the PwD Act, 1995 and continue to be protected under Section 20(4) of the RPD Act, 2016, OM No. 36035/3/2009-Estt.(Res.), Benefit of reservation to persons with disability who acquire disability after entering into Govt. service, dated 10 June 2009 was issued, extending the protection.

Regarding promotions, OM No. 36035/8/89- Estt.(SCT) dated 20th January 1989 (Reservation for the physically handicapped in the posts filled by promotion) was issued followed by OM NO. 36035/7/95-Estt.(SCT) issued on 18th February 1997 wherein  it was clarified that For providing reservation to the physically handicapped in promotion, which would be 3% of such posts, a separate register of 100 points will be maintained for a post identified to be manned by the physically handicapped, in which point No. 33.67 and 100 will be reserved for the physically handicapped. OM No 36035/4/2010-Estt (Res) (Consideration of persons with disabilities for promotion against unreserved vacancies) dated 1st August 2011  has been issued which states that that if promotions are made to a Group ‘A’ or Group ‘B’ post, which is identified suitable for persons with disability of a specific category, the persons with disability of relevant category in feeder grade, if any, shall be considered for promotion to the post by applying the same criterion as applicable to other persons.

It is to be noted that backlog continues to be a problem when it comes to filing up of vacancies in the category of persons with disabilities. At the same time, special employment drives have also been launched to meet the statutory target of reservations in the Government Establishments.

One of the most important Rules is Rule 3(4) which states that no person with disability shall be compelled by an establishment to partly or fully pay for the costs incurred for reasonable accommodation. In this connection, one may usefully refer to OM dated March 31st, 2014 (Guidelines of providing facilities for persons with disabilities in the Government Sector, OM No.36035/3/209-Estt.(Res)) issued by the Government.

WHERE WE STAND AND WHERE WE ARE GOING

Section 34  provides as follows: 34. (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities [emphasis added] of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely:

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disability.

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time.

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.

Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.

This provision differs significantly from the gamut of Sections dealing with Government Employment in the PwD Act, 1995. This effective implementation of this Section is possible only after careful thought and consideration and the issuance of proper orders and an OM that can really implement what this Section seeks to achieve. The beginning, through OM dated 20th June 2017 seeking suggestions from all departments and the general public as to who can be included in the category of persons with disability defies logic when the Section is clear.

Another area of concern is the laxity that is being shown in bringing out new orders and OM in consonance with the  2016 Act and 2017 Rules. Orders and OM still use the OM dated 29.12.2005 as the yardstick for most purposes.  Few outdated yet progressive OM like the OM dated 30th March 2010 (No.36035/7/2008-Estt.(Res.) regarding  readily forwarding transfer applications of persons with disabilities remain. Transfers are now governed by Section 20(5).

Persons with disabilities are no doubt protected by the PwD Act, 1995 and under the 2016 Act in so far as job reservations are concerned in employment but the important issue as to what jobs are to be reserved remains inadequately addressed. The reservation is a mere quantitative safeguard and leaves the question as to what jobs for whom unanswered. This is especially true of the 2016 Act wherein both the number of disabilities and the percentage of reservation has gone up.