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Employment and Disability

 

Promotion of equal opportunities and creating a non-discriminating environment for disabled people are the main objectives of the PWD Act that aims to protect the rights of persons with disability. One such important area is employment. The Act, under Section 32 mandates the Central and the State Governments to identify posts to be reserved for persons with disability. Further, the provisions stipulate that reservation has to be made to the extent of three percent while filling up vacancies in all the government and the public sector establishments. However, in any given year if there has been a vacancy and if the department does not find a suitable person with disability it is recommended that the same is carried forward to the next recruitment year.

In addition to this, the Act focuses on protecting the jobs of employees while in service. There is a clear mandate against any government department dismissing or demoting an employee on acquiring disability. If the disabled person is found to be unsuitable for the post he or she was holding then it is recommended that the person be shifted to another job with the same pay scale and benefits. It is further stipulated that promotions cannot be denied on the grounds of disability.

Several cases have been filed in the Courts on the issue of employment. A large number of cases are filed by disabled people for non-implementation of the provisions of the Act. One such area is non-creation of disability quota while recruiting new employees. Related issues are applicability of the Act on various bodies, distribution of the posts amongst people with different disabilities and dismissal from service on acquiring disability.

Courts have also been called upon to intervene in wide array of cases such as those filed against the transport corporations, colleges, universities, banks, the Armed forces, UPSC, railways etc. Apart from directing such government establishments to implement the reservation policy, the Courts have also decreed that departments which do not have a provision for reservation should create one at the earliest. In cases of dismissal from employment, the Courts have ordered that they be reinstated with salary and all benefits or that they should be provided alternate employment. Many a time, through several cases the Court has clarified that the 3% reservation is to be divided equally between the disabilities of mobility, hearing and vision.

Where institutions have failed to follow their own decision regarding reservations, immediate compliance has been ordered by the Courts even if the seats have been filled; and in quite a few cases has stipulated a time-limit to avoid any further delay. Interestingly, even when a State Government has failed to identify posts, the Court has ordered them to do the needful within a stipulated timeframe.

The positive judgments passed by the Courts cover many new grounds pointing to a climate of helping persons with disabilities achieve their potential and claim their rightful place in society. For example: there are very interesting judgments where the Court has upheld the observation that if admission in an educational institute for specific subject was permitted, there could not be a bar for reservation in employment. Similarly, the Courts have been strict on issues regarding merit-based selections, disability certification and its acceptance at the time of employment, and arbitrary decisions taken about disability pensions and subsequent access to sheltered employment.

Judgments related to "Employment and Disability"

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