Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act) It gives

effect to the proclamation on the full participation and equality of the persons with disabilities in the Asian & Pacific Region and provides for their education, employment, creation of barrier free environment, social security, etc. The implementation of the Act requires a multi-sectoral collaborative approach by the appropriate governments, including various Central Ministries/Departments, States/Union Territories, local bodies. In particular, Sections 32,33,34,35,37,38,39,40,41,47 deal with equality in employment. Sec 32 -

The appropriate governments are to identify posts in government establishments, which can be reserved for disabled persons and review the list of posts at periodic intervals (not exceedingly three years). Sec 33 - At least 3 percent of vacancies in every government establishment are to be reserved for persons with disabilities. Out of which 1 per cent each shall be reserved for persons suffering from blindness or low vision and the other 2 percent for persons with hearing impairment and loco motor disability or cerebral palsy. But the central government may exempt any establishment from the above requirements if the nature of work in such establishments is such that disabled persons are unable to work in such establishments.

In Union of India vs National Federation for the Blind and Others, the SC clarified that 3% reservation was to be calculated as a percentage of cadre strength and not the no. of vacancies in the identified posts. In Secretary and Anr vs Ravi Prakash Gupta & Anr, the SC held that non-identification of posts could not be a reason for the government to evade its obligation to reserve 3 per cent of posts for persons with disabilities. In G.M. Northern Railway vs. Jagmohan Singh, the employee, an orthopaedically disabled person, was denied promotion on the ground that reservation in promotion is not allowed. The Central Administrative Tribunal ordered that he was entitled to promotion against a reserved post for the disabled. The case was later upheld in The Delhi HC. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 The Rules indicate about evaluation and assessment of various disabilities and indicate the authorities, which are to give the Disability Certificate. The Rules also provide the procedure for holding Central Coordination Committee and Central Executive Committee meetings, procedure of notification of vacancies to Special Employment Exchanges, procedure to be followed by Chief Commissioner for Persons with Disabilities in handling the complaints of persons with disabilities, salary and allowances of Chief Commissioner for Persons with Disabilities and the manner in which annual report is to be submitted by him.

U.N. Convention on the Rights of Persons with Disabilities India although has ratified the convention, is yet to induct it into its municipal law. Recent judgments by the courts however show a progressive view with respect to reservation in

employment of disabled persons. The proposed amendments to the PWD Act also comply with the convention.

Reservations for Differently-abled people

As per Allocation of Business Rules, 1961, reservation of posts in the Govt., for certain classes of citizens is the concern of Department of Personnel & Training (DOPT). For consolidated instructions on the subject of reservation to persons with disabilities, issued by see DOPT vide No. 36035/3/2004Estt(Res)Dated December 29, 2005.

Persons with disabilities (physically handicapped persons) can avail reservation in posts and services under the Government of India. In case of direct recruitment to Group A, B, C & D posts, 3% of the vacancies shall be reserved for persons with disabilities of which 1% each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. Three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direct recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disability. Certain departments/establishments may be exempted (by notification) from such reservation provision, considering the type of work to be carried on by such department or establishment.

The 2 types of reservations : Horizontal and Vertical

In Indra Sawhney vs. Union of India, the two types of reservations were explained The reservations in favor of Scheduled Castes, Scheduled Tribes and Other Backward Classes [(under Article 16(4)] may be called vertical reservations whereas reservations in favor of physically handicapped (under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favor of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against the quota will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favor of backward class of citizens remains - and should remain - the same."

The reservations can be availed by a disabled person only if he suffers from not less that 40% of the relevant disability. This must be verified by a competent authority who then issues a disability certificate.

In the Private Sector, the position of law with respect to employment reservation for disabled persons is not very clear. Sec. 41 of the PWD Act remains merely advisory and Sec. 33 is not binding on private establishments.