‘Denial of reservation in promotion is a major factor in depriving persons with disabilities of their right to progress at higher levels in their organization’. Photo Credit: M. Periyasamy
The statement ‘Justice delayed is justice denied’ is often used in the context of judicial matters which are pending or pending in the courts for a long time. Many factors can be responsible for such a situation to arise. These include the complex nature of the cases; As far as the aggrieved party is concerned, there is lack of judicial attention, and even lack of resources/power/other forms of support available to the aggrieved party. A victim of such a situation is the issue of reservation in promotion for persons with disabilities.
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Persons with Disabilities (Protection of Rights on Equal Opportunities and Full Participation) Act, 1995, or the PwD Act, first recognized the right of a person with disability to be employed and promoted in government jobs on an equal basis with others. To ensure this, it introduced 3% reservation for the disabled in employment. Reservation of seats for the disabled existed in Group C and D before the introduction of the PWD Act. Now, the Act has extended reservation for the disabled in Group A and B – a progressive step towards ensuring respect and equality for the disabled at all levels, including career advancement in government jobs. In addition, it also fixed the percentage of reservation of seats at 3%, thereby opening the doors of recruitment for people with disabilities in various sectors of the government.
integral part of reservation
Reservation for the disabled in promotion in all groups was first defined as an integral part of the reservation by the Department of Personnel and Training Order No. 100. 3603517195-Estt./SCT, which was passed in 1998. This government order was issued by the department in 1998 following the passage of the PWD Act, 1995. This happened after Parliament enacted the provision of reservation of promotion for Scheduled Castes (SC) and Scheduled Tribes (ST), overturning the decision of the Supreme Court of India in Indra Sawhney etc. v. Union of India and others etc., where reservation in promotion was given. Withdrawn for SC and ST. Interpreting the Parliament Act, the Department of Personnel and Training said that the Act also applies to persons with disabilities as they too belong to the marginalized sections of the society, and therefore enjoy equal protection under the law.
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Unfortunately, another order from the Department of Personnel and Training, viz., no. 36035/3/2004-Estt/Res, 2005 withdrew reservation of handicapped in promotion to Group A and B. The reversal of its own order by the department was not only shocking, but also clearly shows the apathetic and hostile attitude of the administration. Government responsive to the needs and aspirations of the disabled. The 1998 order of the department opened doors of opportunity for the persons with disabilities to progress in their organizations in the spirit of the PwD Act. But the 2005 order of the department can be understood as an expression of the ruling dispensation’s refusal to give equal space and place to the disabled at higher levels in organisations.
retaliate, contempt filing
As a result, no case. 36035/3/2004-Estt(Res) was filed in the Supreme Court in 2008 by Rajeev Gupta against the Union of India. After deliberations and hearings for about eight years, it was decided to provide for reservation in promotion for the disabled in Group A and B, which was regrettably withdrawn by a 2005 order of the Department of Personnel and Training. In 2016, giving reservation in promotion in Group A and B. But the Government of India did not make any effort or give any direction to implement the decision.
Subsequently, Mr. Gupta filed a contempt case in the Supreme Court in 2017; The hearing is still going on. The public prosecutor, while filing an affidavit, cited another case, i.e. Siddaraju v. State of Karnataka and others, arguing to stay the proceedings in Mr. Gupta’s contempt petition. This affidavit by the Government of India in 2017 in the Supreme Court is an attempt to obstruct the outcome of the contempt petition. Consequently, the contempt petition is still under process of hearing.
Civil appeal no. In Siddaraju v. State of Karnataka and others in 2017, in one of its many hearings, it upheld reservation in promotion for the disabled and struck down a 2005 Department of Personnel and Training order.
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It is important to note that in both the cases, the Court challenged the judgment in Indra Sawhney judgment holding that Article 16(4) does not disqualify the Indian State from providing preferential treatment like reservation to backward classes of citizens under Article Is. 16(1). However, such discriminatory/preferential treatment should not be based on, inter alia, caste, or religion. The Court also held that physical disability is the basis for providing reservation to the disabled which is not prohibited under Article 16(1) which guarantees equality of opportunity in state employment or office. Therefore, the right for persons with disabilities to get reservation in promotion can be ensured under Article 16(1) of the Constitution.
government response
A diverse application, no. 2171 of 2020 in Civil Appeal No. No. 1567 of 2017, Siddaraju Vs. State of Karnataka & Ors., in this case was filed by the Government seeking clarification on the ways and means of implementing reservation in promotion for the disabled. But the miscellaneous application was actually an attempt to delay the process of implementation of reservation in promotion for the disabled. Later in 2021 the application was rejected.
The government came with another order i.e. no. 36012/1/2020-Estt.(Res.-II) dated 17th May, 2022 through Department of Personnel & Training. While the order made important clarifications on the reservation of seats for the disabled in recruitment, it failed to make any mention of reservation for the disabled in promotion from 1996, which should be in accordance with the PwD Act, 1995, and the department’s own order of 1998, which explicitly provided for reservation for the disabled. Since then in promotion to Group A and B. This denial by the government was yet another attempt to delay the process of justice to the disabled, which ultimately led to denial of justice.
Judiciary has played an important role in providing justice and equality to the disabled, especially after the enactment of the PWD Act, 1995. There have been many court cases where the grievances of persons with disabilities have been redressed and they have been able to occupy a meaningful and respectable place in the society. However, in this case, by prolonging the process of final decision on the pending issue of reservation in promotion, the judiciary has added to the apathy of the government towards the needs and aspirations of the disabled. In doing so, it only belittles its laudable role in achieving the lofty goals of equal opportunity and enabling a just and conducive environment for the development of the disabled in the society. Denial of reservation in promotion is a major factor in depriving persons with disabilities of their right to progress at higher levels in their organization. This hinders the goal of inclusion of persons with disabilities in the society. It is also preventing them from actively contributing to the development of India. Judiciary should actively take decisions keeping in mind the inclusive constitutional wisdom of the Republic of India.
Nikhil Jain is Associate Professor in the Department of Political Science, Dyal Singh College, University of Delhi