A blanket test for all disabled who have applied for government jobs may be “impractical” and a “one size fit all” model may not be the most efficient, Delhi High Court has observed, saying there were over 2.6 crore (rpt 2.6 crore) people in India suffering from a variety of disabilities.
A bench of justices S Ravindra Bhat and Deepa Sharma were of the view that every disability required a specific aid and came with specific restrictions and the criteria of 40 per cent disability on the Indian Disability Evaluation Assessment (IDEA) scale “cannot be held ideal”.
The court concluded that there were deficiencies in the Persons With Disabilities (PWD) Act with regard to providing job reservation and 40 per cent criteria for being classified as a person with disability.
“It is the opinion of this court that a blanket 40 per cent disability test to provide reservations in employment may be impracticable. A particular disability suffered by an individual might require specific aid and comes with specific restrictions.
“Hence, it is the opinion of this court that in a country where 26,810,557 individuals suffer from different disabilities, a ‘one size fit all model’ might not be the most efficient. That 40 per cent on IDEA scale makes individuals more or less employable cannot be held ideal,” it said.
“This court, therefore, concludes that there is some deficiency in the existing law, i.e PWD Act, both with respect to providing reservations as well as the classification of all persons with disabilities as one having at least 40 per cent of any specified or enumerated condition, which can well be the reason for ultimate discrimination.
“…the absolute minimum threshold of 40 per cent in the case of certain kinds of disabilities could be the barrier – unwitting though the case may be – and eliminate from the post identification exercise persons with such disabilities altogether. This clearly has a discriminatory result, and an indirect discriminatory effect,” the bench said.
The court’s observations came as it dismissed an appeal against its single judge order rejecting a plea of a civil service aspirant, suffering from severe depression with obsessive-compulsive disorder, claiming that the PWD Act excluded persons with mental illness for the purpose of job reservations.
While dismissing the appeal, the bench said that though the grievances raised were to an extent justified, the remedy lay in amending the law.The bench asked the government and Union Public Service Commission to take the help of experts in mental illness and disorders and study the problems which have led to “total exclusion and denial of persons suffering from mental illness, the benefits of reservation under the PWD Act”
It also asked them to “determine if the threshold of 40 per cent under the Act needs revision based on which an appropriate law could be made, or existing law amended”.
It asked the government to consider creating a model where individuals suffering from different disabilities may be recognised and given benefits in terms of education, health, employment etc. suitable to their individual condition.
“The benchmarking through the IDEA scale may have to vary depending on different disabilities,” it added.
In his plea, Jadhav Vishwas Haridas had also contended that there was no compensatory mechanism – in terms of time lost while fighting disability.
It was argued on his behalf that the PWD Act mentioned mental illness as a disability but provided no rehabilitation or benefits in terms of age relaxation/reservations in jobs, thereby denying persons similarly situated as him, a level- playing field and equal opportunities.
It was also contended by the petitioner that the PWD Act was not in line with the Convention on the Right of Persons with Disabilities, 2006, to which India was a signatory, and this should not result in discrimination against those who fulfil the disability criteria by denying them the benefit of reservation.
The bench in its 22-page judgement observed that the list of disabilities provided under the Act was “not exhaustive” and “merely illustrative”.
It said “if separate quotas are not provided, there is a danger of the disability quota being availed of only by one category of disabled, the other groups could be disadvantaged because of their condition”.
It also said that “the facts of this case highlight that what appears to be a standard norm for one category of persons with disability cannot be universally applied — the result would be the opposite, i.e, the total exclusion of that category in the exercise of post identification”.
The court further said that though the PWD Act provided a minimum reservation of three per cent with one per cent each for vision impairment, locomotor disability and hearing impairment, “the obligation to provide reservation is not only to the three enumerated categories, or only to the extent of three per cent, but a wider one”.