Reservation for disabled: Central services cannot be exempted – Issues and the way ahead
In a case that the SC is currently hearing, the petitioner has challenged a notification issued by the Department of Empowerment for Persons with Disabilities (Department). The impugned notification exempts all categories of posts in the Indian Police Service, the Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Police Service, as well as the Indian Railway Protection Force Service from the mandated 4 per cent reservation for persons with disabilities under the RPwD Act.
How the notification is legally and constitutionally untenable?
Classification between combat and non-combat posts via another notification:
- On the same day as the issuing of the impugned notification, the Department also issued another notification exempting from the purview of reservation under the RPwD Act posts only of “combatant” nature in the paramilitary police.
- This classification between combat and non-combat posts was premised on a clear recognition of the fact that persons with disabilities are capable of occupying non-combat posts in the central forces.
- The Department has offered no justification as to why this classification would not hold good as regards the services covered in the impugned notification.
The impugned notification goes against the identification exercise:
- Last year, the Ministry of Social Justice and Empowerment identified a range of ministerial/civilian posts as being suitable for reservation for the disabled.
- The impugned notification goes against this identification exercise, by virtue of its blanket character.
- Further, In November 2021, the Union Ministry of Home Affairs released Draft Accessibility Standards/Guidelines for built infrastructure under its purview (police stations, prisons and disaster mitigation centres) and services associated with them.
- These Draft Standards state that the police staff on civil duty could be persons with disabilities.
Appears to be a colourable exercise of power:
- The impugned notification appears to be a colourable exercise of power.
- This is because, as per the RPwD Act, the grant of any exemption has to be preceded by consultation with the Chief Commissioner for Persons with Disabilities.
- However, the office of the chief commissioner has been lying vacant for many years, with the secretary in the Department officiating in that role.
A recent development
- In a heartening development, in March, the SC passed an interim order, allowing physically disabled persons who have cleared the civil services (mains) exam to provisionally apply for posts in the IPS, IRPFS and DANIPS, considering this request to be “just and reasonable”.
Way forward
- The Court has asked the government to explain its stance on the impugned notification and listed the matter for April end.
- This case presents the SC with the opportunity to rule that the disabled are not a monolithic entity. Every disabled person is different, and it is unfair to paint all disabled people with the same broad brush, based on a stereotypical understanding of what they can do.
Practice Question for Mains
- The disabled have the right to exist and work in the world just like their able-bodied counterparts. Discuss. (150 Words, 10 Marks)
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