Comparisons of the two 'Rights of PwD Bill'

Recently MSJE put upon it's website the modified 'Rights of PwD Bill 2011'. It is bit different from the one proposed by Sudha Kaul Commitee in last year. A Kumaresan compares both the bill to give readers a glance of salient differences between these two. 

Prepared by A. KUMARESAN,Chennai.

Issue 1- Transfer

Disability Bill 2011 as recommended by Sudha Kaul Committee	Disability Bill 2012 as published by M/o Social Justice and Empowerment
Section 56(6) An establishment shall not ordinarily post and transfer a person with disability in a place other than his or her native place or within the vicinity of such place unless such transfer becomes necessary due to exigencies of the job and expertise possessed by the person with disabilities.	No provisions found.

Remarks- Statutory provision for posting / transfer of disabled employees to or near their native places are required as DOPT OM issued on the subject are not implemented by Government in earnest spirit.

Issue 2- Reservation in government jobs

57. Reservations All establishments shall reserve not less than seven percent of all posts and in promotions for persons with disabilities

Section 39(1) Every appropriate government shall reserve, in every establishment under them, not less than 5% of the vacancies meant to be filled by direct recruitment, for persons or class of persons with benchmark disability.

Remarks-Several Hon’ble `High Courts have given favourable judgement to provide reservation in direct recruitment as well as in promotion. For providing stable economic condition, improving the quality of life style and bring up the children of disabled employees on par with other people of the society, reservation in promotion is a must.  Further, restricting reservation only at induction level will lead the disabled towards starvation and unemployment.

While the government of India have gone to the extend of amending the Constitution of India in favour of SCs/STs, the same benefit is denied to disabled whose conditions are worst than the SCs/STs in the society who require the benefits and schemes on par with SCs/STs if not provided more than SCs/STs.

Further, Sudha Kaual Committee recommended 7% of all posts.  But the ministry recommended 5% of vacancies.  From the above one can easily judge the intention of the ministry as to whether the ministry, who is supposed to be the nodal ministry for the welfare of the disabled, is for the welfare of the disabled or they want to wipe out the disabled community who want to be always under somebody’s mercy without dignity.

Issue 3-Lapse of reserved posts

Section 57(3) If sufficient number of qualified persons with disabilities are not available in a particular year, then the reservation may be carried forward to the subsequent year, and if in the subsequent recruitment year also a suitable person with disability is not available, then the post may be first filled by interchange among the categories, and if the vacancy is still not filled then the establishment shall identify, train and then induct persons with disabilities on the post. In no case shall a post to which a person with disability is entitled to be appointed be allowed to lapse.

Section 39(2) If sufficient number of qualified persons with benchmark disabilities are not available in a particular year, then the reservation may be carried forward for up to the next three recruitment years, and if in such succeeding recruitment years also a suitable person with benchmark disability is not available, then the post in the fourth year may be first filled by interchange among the categories of disabilities; and only when there is no person with any benchmark disability available for the post in that year, the vacancy may be filled by appointment of a person, other than a person with benchmark disability.

Remarks- The Sudha Kaul Committee’s recommendations in this regard should be implemented in total.  Providing reservation for a post and allowing the reservation to lapse for want of candidates, makes the reservation a meaningless exercise.  Even the concept of ‘zone of consideration’ and ‘extended zone of consideration’ in case of promotion should go away and posts in question should be filled on the basis of available disabled man power.

Issue 4- Relaxed standard

Section 49(2) All appropriate governments and educational authorities may if they deem fit to promote equality of opportunity relax according to prescribed procedure the minimum qualification criteria required to be obtained by persons with disabilities who seek admission to a higher education institution.

No provisions found.

Remarks- Relaxation of qualifying marks has been allowed to SC/ST candidates in Departmental Promotion Examinations.  While the physically challenged employees of the SC/ST communities enjoy this benefit, the same is denied to other physically challenged employees.  The following cases where the relaxation of standard has been extended to physically challenged employees on par with SCs/STs candidates are furnished.

(1)         DOPT vide OM dated 04.09.1985 issued instructions on relaxation of standards to physically challenged employees on par with SCs/STs

(2)         The Hon’ble Supreme Court of India pronounced a ruling on 19.03.2002 on the W.P.No.115/1998 allowing all physically challenged candidates to treat them on par with SCs/STs in the matter of providing 5% relaxation in qualifying marks.

(3)         The Hon’ble Delhi High Court pronounced a similar ruling on 06.09.2012 on W.P.(C) No.4853 of 2012 in favour of a disabled student who sought admission Delhi Technological university.

(4)         The Chief Commissioner for Persons with Disabilities of India has also pronounced a similar ruling on the above matter in favour of disabled candidates of (i) IIT aspirants (Case No: 1/1011-5471/2008 dated 07.08.2008) and (ii) Postal Department (Case No. 3810/07 dated 17.08.2007).

(5)         BSNL, vide their letters dated 12.10.2004 and 20.01.2005, has provided relaxation in qualifying marks on par with SCs/STs in the departmental promotion examinations for JAOs.

Despite existence of all the above justifications, relaxation in qualifying standard is not provided to disabled employees in Departmental Promotion Examination while extending the same in Direct Recruitment.  The only way to protect the interest of the disabled is to provide statutory provisions.

Issue 5-Provision against retrenchment of a disabled employee.

Section 56 (2) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during service, such employee may if required by the nature of disability, be shifted to another post with the same pay scale and service benefits. Provided further that if it is not possible to adjust the employee against any post, then such employee may be kept on a supernumerary post until a suitable post is available or the age of superannuation whichever is earlier (3) The protection accorded in sub section (2) shall also be extended to persons employed with the defense forces; Provided that this sub section in no way precludes the defense establishment to formulate a more beneficial employment retention and rehabilitation scheme for persons employed with the defense forces.

Section 25(3) (3) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during service, Provided that such employee may, if required by the nature of disability, be shifted to another post with the same pay scale and service benefits; Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier; Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

Remarks- Using the safely clause provided in the Bill 2012, Government may exempt any establishment from the provisions of this section defeating the purpose of the Section.  Hence, the Sudha Kaul Committee’s recommendations in this regard should be implemented in total.

Issue 6- Tax

Section 131 Notwithstanding anything contained in the Wealth-tax Act, 1957 (27 of 1957), the Income-tax Act, 1961 (43 of 1961), or any other enactment for the time being in force relating to tax on wealth, income, profits or gains, the National Disability Rights Authority and State Disability Rights Authority shall not be liable to pay wealth-tax, income-tax, or any other tax in respect of their wealth, income, profits or gains derived.

Section 122 Notwithstanding anything contained in the Income-tax Act, 1961, or any other law for the time being in force relating to tax on income, profits or gains, the Trust shall not be liable to pay income-tax or any other tax in respect of its income, and profits or gains derived therefrom.

Remarks- The Bills 2011 and 2012 have not recommended any tax benefits to the individual disabled persons.  Notwithstanding anything contained in the Income-tax Act, 1961, or any other law for the time being in force, all disabled persons should also be exempted from paying of all kinds of taxes including income tax.

Issue7- Political participation

Section 32. Right to Political Participation (1) Notwithstanding anything contained in the Representation of the People Act (No. 43 of 1950), the Representation of the People Act (No. 43 of 1951) or any other law for the time being in force, every person with disability who fulfills all the eligibility requirements shall be entitled to be registered as a voter and shall not be held disqualified to exercise his or her right to vote on the ground of disability irrespective of any stipulation to the contrary in any law for the time being in force18; (2) Notwithstanding anything contained in the law for the time being in force, any person with disability who is unable to cast vote in person due to his or her disability or because of admission in any establishment maintained wholly or mainly for the reception and treatment of persons with disabilities at the time the poll is taken shall be entitled to vote by postal ballot and provisions shall be made, by rules made under the Representation of the People Act (No. 43 of 1951) to enable such voting; The Rights of Persons with Disabilities Bill, 2011 (3) The Election Commission shall ensure that all polling stations are accessible to persons with disabilities and that all materials related to the electoral process are easily understandable by and accessible to persons with disabilities; (4) Without prejudice to the generality of the provisions contained in sub–section (3), the measures undertaken by the Election Commission in pursuance of that sub–section shall include: a. the construction and availability of ramps at all polling booths; b. separate queues for persons with disabilities at all polling booths with clear pictorial signs; c. the availability of ballot papers and/ or electronic voting machines with candidates’ information available in Braille and other accessible formats; d. the fitting of audio devices to electronic voting machines; e. training programs to sensitise polling officers about the special requirements of persons with disabilities. (5) If the presiding officer is satisfied that, due to disability, a person with disability is unable to recognise the symbols or to record vote without assistance, the presiding officer shall permit the elector to take a companion of not less than eighteen years of age to the voting compartment for recording/ casting the vote; (6) Every person with disability is entitled to form and be a member of any organization or association in accordance to choice.

Section 19. Right to Political Participation (1) The Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and that all materials related to the electoral process are easily understandable by and accessible to persons with disabilities. (2) Without prejudice to the generality of the provisions contained in sub–section (1), the measures undertaken by an Election Commission in pursuance of that sub–section shall include: a. the construction and availability of ramps at all polling booths; b. separate queues for persons with disabilities at all polling booths with clear pictorial signs; c. the availability of ballot papers and/ or electronic voting machines with candidates’ information available in Braille and other accessible formats; d. the fitting of audio devices to electronic voting machines; e. training programs to sensitise polling officers about the special requirements of persons with disabilities. (3) If the Presiding Officer of a polling booth is satisfied that, due to disability, a person with disability is unable to recognise the symbols or to record vote without assistance, the presiding officer shall permit the elector to take a companion of not less than eighteen years of age to the voting compartment for recording / casting the vote.

Remarks-

1)   The Village Local Bodies, State Legislative Councils, Rajya Sabha etc. should have an appropriate number of nominated members from disabled community so that they can put forward their suggestions / demands and fight for their rights.

2)   Reservation should also be provided at Village Local Bodies, State Legislative Assemblies, Lokh Sabha etc. so that they can put forward their suggestions / demands and fight for their rights.