Effecting Reservation in Jobs for Persons with Disabilities

Effecting Reservation in Jobs for Persons with Disabilities IPA Feb 26, 2009 Bangalore T. D. DHARIYAL Dy. Chief Commissioner O/o Chief Commissioner for Persons with Disabilities Ministry of Social Justice & Empowerment

Mechanism for protection of Rights of Pw. Ds Chief Commissioner and State Commissioners • Monitor utilization of funds; • Look into the complaints on deprivation of rights of persons with disabilities; • Safeguard the rights of persons with disabilities; • Take suo-motu cognisance of non-implementation of laws, rules, regulations, etc.

Powers of Civil Court for – • summoning and enforcing the attendance of witnesses; • Discovery, production and requisitioning any public record from any court or office; • receiving evidence on affidavits; • issuing commissions for examination of witnesses or documents; • Proceedings before CCD/SCDs are judicial proceedings.

IMPAIRMENT, DISABILITY & HANDICAP ‘Impairment’ : An Impairment is any loss or abnormality in structure or function, psychological, physiological or anatomical. ‘Disability’ : Disability is a mental or physical condition that restricts an individual’s ability to engage in substantial gainful activity in the manner or within the range considered normal for a human being for short or long-term. ‘Handicap’ : Handicap is a disadvantage for a person due to impairment or a disability that limits or prevents him or her form functioning at a normal rate for that person.

LAWS/POLICY ON DISABILITY IN INDIA 1. Mental Health Act, 1987 2. The Rehabilitation Council of India Act, 1992 3. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 4. The National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation & Multiple Disabilities Act, 1999 5. National Policy for Persons with Disabilities – 2006 6. United Nations Convention on the Rights of Persons with Disabilities – 3 rd May 2008

Kinds of Disabilities As per PWD Act, Disability means n n n n n Blindness Low vision Leprosy-cured Hearing impairment Locomotor disability Mental retardation Mental illness Autism Cerebral Palsy A PWD means a person suffering from 40% or more disability

Definitions of Disabilities n n n Blindness : Blindness refers to a condition where a person suffers from total absence of sight, or visual acuity not exceeding 6/60 or 20/200 (snellen) in the better eye with best correcting lenses or limitation of field of vision subtending an angle of 20 degree or worse. Low Vision : A person with impairment of vision of less than 6/18 to 6/60 with best correction in the better eye. A person is potentially capable of using vision for planning or execution of a task with appropriate assistive device. Leprosy Cured : A person who has been cured of Leprosy but is suffering from loss of sensation in the limbs but with no manifest deformity or manifest deformity but not having sufficient mobility to engage in normal economic activity or extreme physical deformity as well as advanced age which prevents him from undertaking any gainful application.

n n n Hearing Impairment : Loss of 60 decibels or more in the better ear in the conversational range of frequencies. Locomotor Disability : Disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of Cerebral Palsy. Mental Retardation : A condition of arrested or incomplete development of mind of a person which is specially characterized by sub-normality of intelligence. Border line IQ – 70 -79 Impairment – 25% Mild IQ – 50 -69 Impairment – 50% Moderate IQ – 35 -49 Impairment – 75% Severe IQ – 20 -34 Impairment – 90% IQ – <20 Impairment – 100% Profound

n n n Mental Illness : Any mental disorder other than mental retardation. Autism : A developmental disability which significantly affects verbal and non-verbal communication and social interaction, generally evident before the age of 3 that adversely affects educational performance. Other characteristics are repetitive activities, stereotyped movements, resistance to environmental changes, change in daily routines, and unusual responses to sensory behavioral disorder. Cerebral Palsy : A group of non-progressive conditions of a person characterized by abnormal motor control posture resulting from brain insult or injuries occurring in the prenatal, peri-natal or infant period of development.

Persons with Disabilities- 2% of Population 25% Urban 75% Rural 26. 3% Employed 41% literate 7% secondary 93% below level & above secondary level 25. 7% Employed 59% literate 18% 82% below secondary level & above level

How do Pw. Ds get Deprived of Entitlements? n Attitudinal Barriers n Physical Barriers: Work place, public buildings, transport to be accessible to persons with disabilities. Information Barriers n Communication Barriers n

Reservation/Preference appointments of Pw. Ds before the Act n Physically handicapped persons to get Priority-III for their absorption through Employment Exchange reiterated. MHA OM No 14/11/65 -ESTT. (D) dated 02. 03. 1965 n Reservation for persons with disabilities in direct recruitment was introduced in Group C and D posts in 1977 OM No 39016/6/77 -Estt ( C ) dated 4. 11. 1977 n Reservation in case of promotion to Group C and D posts was introduced in 1989

Identification of Posts n Section 32(a) (b) Appropriate Govts shall identify posts in establishment which can be reserved for Persons with disabilities; at periodical interval not exceeding 3 years review the list of identified post and update the list taking into consideration the developments in technology Latest list notified by the Ministry of Social Justice and empowerment in Jan 07 for Group A&B and March 07 for Group C& D Lists applicable to all Central Govt. organizations/ PSUs

Using the list n n The nomenclature used for any job/post shall also mean and include nomenclature used for comparable jobs/posts having identical function The list is not exhaustive. Ministries/ departments/ Establishments can add to the list but cannot exclude any post on its own n If promotional post is identified, feeder post will be deemed to be identified n Post shall remain identified even if group/grade/scale change n Match the job of identified post with the posts in org. concerned

Statutory Provision in the Act. Quantum of reservation Section 33: Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent (it can be more) for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from n n n Blindness or low vision; Hearing impairment; Locomotor disability or cerebral palsy, in the posts identified for each disability. Provided, that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

Section 33 n Section 33 is mandatory and self-effectuating. Approval of governing bodies/boards not necessary for its implementation AP High Court Order dated 18. 11. 2002 in W. P. No. 1294/02 – Andhra Pradesh University

Applicability of Reservation n Direct Recruitment: n Promotion: All Groups (A, B, C & D) Group C and D if direct recruitment does not exceed 75% Para 2 (ii) of DOP&T OM dated 9. 12. 2005 n Reservation is not to be below 3% even if a post is identified for only one/two category(ies) of disability Para 5 of DOP&T OM dated 29. 12. 2005 n Reservation is vacancy based & Not Post Based n Posts exempted from reservation for SC/ST not necessarily exempted from reservation for Pwds

Computation of Reservation n n Against all the vacancies (identified + unidentified posts) occurring in Group ‘C’ and ‘D’ posts for direct recruitment & Promotion Against vacancies occurring in identified posts in Group ‘A’ & ‘B’ Para 13&14 of DOP&T OM dated 29. 12. 2005

CALCULATION OF RESERVED VACANCIES • Point 1, 34 & 67 in 100 point vacancy based rosters since 1996 divided into 3 blocks: Ø Point 1 to Point 33 Ø Point 34 to Point 66 Ø Point 67 to Point 100 • Separate rosters in each of the four groups for directt. • In promotion - Group ‘C’ & ‘D’ Para 15 of DOP&T OM dated 29. 12. 05 • Head of the department to decide the categories of disabilities for which point 1, 34 & 67 to be reserved Para 15 c, g of DOP&T OM dated 29. 12. 05

APPOINTMENT AGAINST UNRESERVED VACANCIES AND SELECTION ON MERIT • Unutilized reservation to be carried forward. Para 15 of DOP&T OM dated 29. 12. 05 & 26. 4. 06 • Pw. Ds can compete for identified posts even if not reserved. • Pwds selected on their own merit not to be counted against reserved vacancies. DOP&T OM dated 26. 04. 06 • Persons with disabilities appointed prior to 1996 or by mere coincidence cannot be reflected against the reserved points in the reservation rosters

INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION • Approval of MSJ&E for interchange • Reserved vacancy not to be filled in case of non-availability of a particular category of disability • Inter-se exchange in the second recruitment year • If filled by non-disabled person in 2 nd rectt, reservation to be carried forward to two subsequent rectt. years before it is lapsed • Zone of consideration to be extended up to 5 times the vacancies in selection posts if necessary • In non-selection posts, eligible pwds shall be considered even if low in seniority Sec. 36 of the Act and Para 16 to 18 of DOP&T OM dated 29. 12. 05 Difference between carry forward of reserved vacancy and reservation

HORIZONTAL RESERVATION • Its not additive unlike vertical reservation. • PWDs to be adjusted against the points in the roster for Gen/SC/ST/OBC as per their vertical category. • An SC disabled candidate to be adjusted against SC point in future if no current vacancy falls on SC point. Para 19 of DOP&T OM dated 29. 12. 05

RELAXATION IN QUALIFYING MARKS, STANDARD OF SELECTION & EXAMINATION n At par with SC/ST irrespective of the vertical categories for PWDs Order dated 19. 3. 02 of Supreme Court in WP (civil) No 115/98 n n Standard of selection may be relaxed if candidates with disabilities with Gen. standard are not available to fill the reserved vacancies No limit to Relaxation i. e. to the extent they are not found unfit Essential Educational qualification not relaxed but other parameters can be relaxed Para 22 of DOP&T OM dated 29. 12. 05 No separate exam to be conducted for Pwds as then they get excluded from competing against unreserved posts DOP&T OM dated 26. 4. 06

NOTICE OF VACANCIES The following points should be included in the Employment Notices • Number of vacancies reserved for each category of disability • The categories of disability for which the post is identified • Functional requirement for performing the duties of the post • Persons with 40% or more disability only would be eligible for the benefit of reservation • If the post is identified, Pw. Ds will be considered for selection for appointment by general standard of merit even if the vacancy is not reserved for them Para 25 of DOP&T OM dated 29. 12. 05

LIAISON OFFICER FOR PWDs • Liaison officers for SC/ST to also work as Liaison officers for PWDs. Para 28 of DOP&T OM dated 29. 12. 05

DISABILITY CERTIFICATE A Medical Board constituted by Central/State Govt. to issue D. C. Medical Board to consist of at least three members out of which one should be a specialist in the particular field for which disability certificate is to be given. Permanent Disability Certificate is to be given in cases where there are no chances of variation in degree of disability. Period of validity of Disability Certificate to be indicated in cases where there are chances of variation in the degree of disability. No refusal of Disability Certificate without giving an opportunity of being heard to the applicant. Medical Board to review its decision on representation by the applicant. A person with 40% and above disability eligible for facilities, concessions and other benefits under the schemes of the Govt. or NGOs.

STARDARD FORMAT OF THE DISABILITY CERTIFICATE Certificate No. ______ Date______ CERTIFICATE FOR THE PERSONS WITH DISABILITIES This is to certify that Shri/Smt/Kum_______________________________Son/wife/ daughter of Shri__________________________ Age _______ old male/female, Registration No. __________ is a case of _____________ He/She is physically disabled/visual disabled/ speech & hearing disabled and has______% (_______per cent) permanent (physical impairment/visual impairment/speech & hearing impairment) in relation to his/her ______________. Note: 1. This condition is progressive/non-progressive/likely to impreove/not likely to improve. * 2. Re-assessment is not recommended/is recommended after a period of __________________months/years. * *Strike out which is not applicable. Sd/Sd/Sd/(DOCTOR) Seal Signature/Thumb impression of the patient. Countersigned by the Medial Superintendent/ CMO/Head of Hospital (with seal) Recent Attested Photograph Showing the disability affixed Here.

UNCRPD – General Principals Enjoyment of Rights on equal terms as others; Respect for inherent dignity, individual autonomy, freedom to make own choices; Non-discrimination; Full and effective participation and inclusion in Society; Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; Equality of opportunity; Accessibility to facilities and services which are open or provided to the public; Equality between men and women; Respect for evolving capacities of Cw. Ds and their right to preserve their identities.

Contact Us If everyone took five minutes each day to go out of his way to make someone else’s life a little better, think how much better this world could be! • Website : www. ccdisabilities. nic. in • Email: ccpd@nic. in, Tel: 23386054/ 23386154 Fax: 23386006 Address: Office of Chief Commissioner for Persons with Disabilities, Ministry of Social Justice & Empowerment Sarojini House, 6, Bhagwan Dass Road New Delhi-110001 THANK YOU