Chapter on Employment and Occupation

Fourth Draft Based on Meeting of Sub Committee with Legal Advisors at
NALSAR University of Law on 4th September, 2010

(Based on the Third Draft of Report of Sub Committee on Employment based on the meeting of the Committee held on 22nd July, 2010 and comments & inputs received subsequently.)


Employment Sub Group Members: Bhushan Punani, Ramakrishna, Rajive Raturi, Jayshree Raveendran (Team leader)
Other Committee Members: Merry Barua, Rajiv Rajan
Chairperson: Dr. Sudha Kaul
Nalsar: Prof.Amita Dhanda & team

General Principles:

  • The provision on work, employment and occupation must be based upon the recognition of the rights of persons with disabilities to work in an environment that is open and inclusive. PRINCIPLE
  • No Employer, Government, Corporate, Public or Private shall discriminate on the basis of disability with regard to all matters relating to all forms of employment, including recruitment and hiring processes, continuance of employment, career advancement and safety at the workplace. LAW

    Discussion points:

    Need to define it. Can you say persons with disabilities can get something which is not available to non-disabled persons? How much of the right based thing can be defined?

    We should list Private and public partnership. Need to consider and to law the issue of Privatization of public institutions.

    [End of Discussion point]

  • No employer shall refuse employment merely on grounds of disability and shall not make any differentiation in the terms on which employment is offered to persons with disabilities. LAW
  • There shall be no discrimination in nature of job, working conditions, pay scales and compensation offered to such persons. LAW


Section 1: Non Discrimination in Employment

  • No person with disability shall be discriminated against only on the ground of disability by the establishments managed or controlled either by appropriate Government, public sector or private sector. LAW
  • Any person with disability, who is otherwise eligible for any vacancy sought to be filled up by any establishment, whether Government, public sector or private sector, shall have substantive right to appear for selection and hold the post in question if selected. RIGHT
  • The obligation of non-discrimination lies with the employer. It should include making environment, physical infrastructure, information systems, services, administrative procedures and processes disabled-friendly, based on standards; providing reasonable accommodation to meet individual needs. LAW

    Discussion points:

    Responsibility of the employer and the parameters to be employed by the employer is dealt with here.

    Provision for service rules must be included.

    This comes as larger part of accessibility. Service rules and administrative procedures are part of or under the control of the employer. Accessibility is a cross cutting issue.

    How are we going to make it disabled friendly is the issue. Some kind of criteria must be in place otherwise it is too general. Some model rules have to be framed.

    One of the ILO conventions has reference to this provision. We need to have provision for model rules. Draw upon the ILO convention to formulate rules.)

    [End of Discussion point]

  • Non-discrimination has to be followed throughout the person's job and not just during recruitment.
  • Every employer should have an Equal Opportunity Policy and a system in place to implement and monitor it. LAW
  • Safety and security measures, emergency-handling measures are the responsibility of the employer. LAW


Section 2: Identification of Posts for Facilitating Scheme of Reservation

Discussion points:

Identification of jobs goes against the spirit and principle of UNCRPD and should not have a mention in the Act.

The provision for Identification of job will not make any difference.

It has a close linkage with reservation.

No discrimination on the ground of disability is the core principle.

The provisions of Nondiscrimination, universal design and reasonable accommodation will bring all these matters into law.

Hence no need of specific provision for job identification.

Job identification for preferential benefit is permissible.

Preferential identification is permissible but there should not be any exclusion.

It must be an affirmative action. (To allow preferential allotment of jobs but no disqualification on the ground of disability.)

The days gone to discriminate whether the person with disability can do the work or not.

Job identification may prompt to deny the employment opportunity of the person with disability

If we put job identification, it denies the fundamental right to choice.

No employer wants do any special things/consideration to employees.

Job identification is not so bad. But there is no updating with the technology. The identification method must be revamped in a proactive manner. Eg.Ravi Arora's Case, IAS

[End of Discussion point]

  1. Every appropriate government shall identify posts which can be held by respective categories only for the purpose of using such identification of post for implementing scheme of reservation for Person with Disabilities as contained in Sec.33 of the amending Act.
  2. For the purpose, every appropriate government shall constitute an expert committee consisting of at least one representative of organizations working in the field of each of the categories of disabilities which is entitled to get the benefit of scheme of reservation and persons with disabilities themselves.
  3. It shall be obligatory upon every appropriate government to undertake periodic review of the identification of posts at an interval of at least every three 3 years to update the list of identified posts. (To be aligned in line with ILO Convention)
  4. Every appropriate government shall notify in the official gazette the list of identified posts which may be used for appointment respective category of Person with Disabilities after his selection either against the unreserved posts or against the post reserved for Person with Disability.
  5. The notified list of identified posts shall be treated as an illustrative list of posts which can be held by Person with Disabilities and not as an exhaustive list. The list should be used merely as a guidelines and employment should not be confined to the identified post only.
  6. No person with disability shall be denied consideration for appointment or appointment against any post which is not included in the notified list of the identified post, if he is otherwise eligible for such post as per the notified eligibility criteria for the same.


Section 3: Reservation of Posts

  1. Every appropriate Government shall reserve in every establishment such percentage of posts including in the organized services not less than 6% of the total cadre strength in each group of posts, all forms of jobs, including contractual labour, in the establishment for the following class of persons with disabilities listed below with proportionate representation: LAW
    • Person with blindness and low vision
    • Person with hearing impairment and speech impairment
    • Persons with locomotors disability and leprosy arrested
    • Cerebral palsy, multiple sclerosis, muscular dystrophy
    • Persons with intellectual disabilities, mental illness and autism
    • Persons with multiple disabilities, deafblindness and other such disabilities

    (Recommendation has to be done by the subcommittee).

    Discussion points:

    Why do we want contractual labour?

    The responsibility of the principle employer and the contractor... think

    Out sourcing is the background for this provision.

    Large percent of the employees are from contract basis. Who is responsible? Whether the contracting person or the principle employer

    Both ore obligated

    We want all forms of employment to fulfill the 6% reservation

    Whether we need this separate reservation on a category basis?

    Distribution of job according to the lesser disability and severe disability. All Persons with disabilities should get job opportunities.

    The disability difference should not come in.

    Unless we define the disability and list it, it is difficult to talk about the rights.

    Every disability ranges from mild and severe.


    National Trust Act - non discrimination will take care of many things. Addressed the issue in NTA for different kinds or categories of disabilities. Medical reimbursement etc had been dealt out. Difficulty will arise if we segregate disability into categories. Eg. Socio-Psychic disability. The right of non-discrimination should be available to all.

    There should be protection of rights and non-discrimination for even those people with disabling conditions, who may not be entitled for reservation, like a person with epilepsy, if she/he is refused a job because of the health condition.(to be put forth for consideration)

    The other dimensions of what is required for people with mental illness/ if we give reservation how many of them can claim it?

    Once the list of disabilities get finalized, the specific allocation of reservation to be made in clear terms for all categories of disabilities, e.g. 0.5% reservation for blindness and 0.5% for low vision should be clearly mentioned.

    Provided that the Appropriate Authority as the case may be, may, having regard to the duties of the particular post in any establishment, office or department, exempt the recruitment to such posts by notification from the purview of this section.

    However the Appropriate Authority shall review such decision.

    [End of Discussion point]

  2. The reservation as contained in sub section 1, shall also apply to all such establishments which were earlier owned, managed and controlled or substantially financed by the appropriate government before its privatization. LAW

    Discussion points:

    Reservation in private sector. How are we going to put it in law? How private establishments bring the reservation to their employment norms? Our Constitution provides fundamental freedom of business and profession.. But State can impose Reasonable restriction on the basis of public interest. Make the sectors participate all in the economic development of the country.

    Leave smaller establishments. They hire many pwd.

    Gujarat has law from 1981 to monitor establishments by government, subject to the number of workman is more than 200.

    WE need justification for the provision. The jurisprudence and constitutional interpretation has to be seen. Barrier free must be a regulatory for any new business. Incentive is necessary. Defense must be an area dealt with for employment.

    [End of Discussion point]

  3. All private entities which are primarily having substantial trade/business with the appropriate government will also be covered by the scheme of reservation as contained in Sub Section 3 (1). LAW

    This provision is intended to protect the People who acquire disability during the job. Section 47 of PwD Act and Non-availability of the posts.

    Anybody who has not availed the benefit of reservation can they avail the said benefit of reservation for promotion?

    There are judgments which held about Promotion as equal to appointment in the employment.(for SC/ST)

    It's a disputed argument. Everyone did not get everything at all the time. Do you want reservation in promotion to PD likewise in the SC/ST ? It is not the same experience with PwD. There are costs to pay and we are going back to medical model of disability. The issue is all about deep rooted social discrimination.

    No discrimination in promotion. It is very difficult to sell it outside without reservation in promotion.

    [End of Discussion point]

  4. Such reservation shall also be made in respect of promotion of persons with disabilities with a provision of creating supernumerary posts in case when such vacancies are not there. Similarly, no employer shall refuse a transfer, any relevant training or provision of any other benefits merely on grounds of disability.
  5. Whilst transferring persons with disabilities the existence of suitable /appropriate facilities should be ascertained suitable (needs to go into Rules)

    Discussion points:

    Delhi high court decision regarding the choice to PD for place of appointment.

    Transfer is a problem to the PWD in the sense of medicine, house, accessibility and all other amenities etc.

    When a PWD is transferred you have to provide all the disabled facilities/amenities. Transfer of Parents who have children with disability shall also be taken into consideration .By this we are obligating the government to make it accessible. We need a Positive obligation on the side of the employer.

    [End of Discussion point]


Section 4: Carry forward of Reserved Posts

  1. Wherein any recruitment year, any vacancy reserved for the aforesaid classes of persons with disabilities and advertise as such could not be filled up due to non availability of a suitable person with a disability in spite of the selection process having been under taken, to fill up the said reserved vacancy, such vacancy shall be carried forward to next two succeeding recruitment years and not merged with future vacancies in recruitments.

    Discussion points:

    Carry forward principle do not find place in the disability law. Hence we need it because such vacant posts will be filled with non-disabled.

    Sec. 36 of the PwD Act. dealt with the point.

    If the seats are reserved for PwD (identified posts) that vacancies should be carry forward.

    [End of Discussion point]

  2. If a vacancy is not filled the Employer may shall identify suitable candidates and organize appropriate training for filling that vacancy. (to develop guidelines for this purpose.)

    Discussion points:

    Obligation on the appropriate authority must be to look for the people and train them.

    [End of Discussion point]

    The reservation policy shall be implemented subject to and under the purview of following terms and conditions:

    1. Adopt and apply the concept of reasonable accommodations as a mandatory provision at all stages.
    2. Ensure reservation in promotions on the pattern of such reservations for special categories life SC/ST and no denial of promotion on basis of safety, security and efficiency (in context of Supreme Court Judgment)

      Discussion points:

      Horizontal reservation. General equality mandate ..

      Himachal Pradesh case law which hold that You can't deny promotion under the pretext of security concerns.

      [End of Discussion point]

    3. Recruitment of disabled who qualify on merit not to be adjusted against reserved category. (To be researched further.)
    4. Recognition of legal capacity of all persons with disabled to enable them to avail employment opportunities
    5. Organizing special recruitment drives at the state as well as national level on periodic intervals.
    6. Formulation of schemes and programs to include launching special recruitment drives, job retention and return to work, flexi work timings, assistive aids and equipment to be made mandatory in employment, schemes to provide live assistants free of cost, on the job trainings, loans for starting business, pre recruitment training, unemployment allowance, where essential and desired by persons with disabilities themselves.
    7. Annual reports and such other publications of all organizations should clearly reflect the percentage of employees with disabilities employed so far and during the preceding year


Section 5: Continuity of Employment

No establishment, including a legal entity in private sector, shall dispense with, or reduce in rank an employee who acquires a disability during the course of employment. his service with special mention for protection of employment in case of acquiring mental illness and multiple disabilities:

  1. Provided that, if an employee, after acquiring disability even with reasonable accommodation is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits:

    Discussion points:

    People who acquire disability have to give it as a right otherwise they will not be in apposition to avail it

    [End of Discussion point]

  2. 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 is available or he attains the age of superannuation, whichever is earlier.
    Sec 47- of the PwD Act
  3. No promotion shall be denied to a person merely on the ground of his disability.
  4. No one shall deny appointment or withdraw the offer of appointment made to a person who acquires disability after selection. (To be Researched)

    Discussion points:

    Outcome must be to enhance the rights of PwD.

    [End of Discussion point]

  5. When one acquires disability, the provision for Rehabilitation, return to work, early intervention, training, referral service, support and technical advice, gradual resumption of work, reasonable accommodation should be included here in continuity of employment.

Explanation: Provisions of Sub-section 1 and 2 of this section shall also apply to all employees with disabilities whether appointed before or after this enactment.


Section 6: Restrictions on Retrenchment (Non-Discrimination)

Discussion points:

The last come must go first is the rule. Hence the above provision is not workable. Entitlement should be same like others. If we need too much protection it would defy the purpose of the provision. Pwd will find more difficulty to get employment. To discuss to identify areas of discrimination here.

[End of Discussion point]

  1. In the event of closure of any establishment of appropriate government, the disabled employee of such establishment shall be entitled to re-employment in any other similar establishment of the respective appropriate government with the same employment benefits and as a continuum of his /her earlier employment. LAW
  2. In case any appropriate government finds it impossible to provide the alternative employment to the disabled employee in accordance with the provisions of sub section (ii), it may apply to the Appropriate Authority for exemptions from the provisions of sub section (ii), provided that it shall be obligatory upon the respective appropriate government to pay double benefits to the disabled employee in respect of closure of such establishment. LAW


Section 7: Placement Services

Appropriate governments will provide placement services including providing support, training, career counseling, providing job coach, etc. - based on individual needs

  1. Notwithstanding anything contained in a statute, rules or administrative instructions to the contrary every employment exchange, run by Appropriate Government or NGOs or Corporate bodies or Universities or other Educational Institutes or Placement Agencies shall register not less than 10% persons with specified disabilities. LAW
  2. Every establishment of the appropriate government shall notify the vacancies sought to be filled up by it to the special employment exchange located in that area with clear mention of the vacancy reserved for specified disabilities with a copy of such requisition of vacancies to recognized NGOs working with the specified disabilities. LAW
  3. Every special employment exchange, on receipt of requisition from establishment, shall sponsor the names of eligible persons with disabilities for which the vacancy / vacancies has been shown as reserved in the requisition. LAW
  4. The appropriate government may, by notification, require that from such date as may be specified, by notification, the employer in every establishment shall furnish such information or return as may be prescribed in relation to vacancies appointed for person with disability that have occurred or are about to occur in that establishment to such employment exchange as may be prescribed and the establishment shall thereupon comply with such requisition. LAW
  5. The form in which and the intervals of time for which information or returns shall be furnished and the particulars they shall contain, shall be such as may be prescribed.
  6. Applications should be available in accessible formats and the process for applying should be inclusive. The vacancy advertisement should mention that reasonable accommodation will be provided. The application form should have a section for seeking information about reasonable accommodation, with a clear statement of commitment that they will not be discriminated on the basis of disability. (will be incorporated in the rules and the forms of the new law.)
  7. A sound mechanism shall be enforced to monitor performance of special employment exchanges. This should also extend to creating awareness among employers and the general public, about provisions on employment and the need for their compliance. (This task may be assigned to proposed Disability Rights Authority)

Discussion points:

The overarching authority under the new law will be entrusted with the duty of monitoring Employment exchanges.

[End of Discussion point]


Section 8: Selection Process (To be seen as illustrations for generic principles on selection)

  1. Every authority/agency responsible for the selection of incumbents to various posts in any appropriate government or in the private sector shall be obliged to either to include the person with disabilities in their regular selection process or conduct special selection tests depending on the nature of the disabilities. Law (Illustrative of generic principles)
  2. The selection test should ensure reasonable accommodations if needed or asked for. Examples include, but are not limited to, accessible venue, accessible testing formats/method, extra time, accessible content (eg. Questions having diagrams, language/spelling tests) extra breaks, use of assistive devices, seating arrangement, etc.
  3. Similarly, accommodations should be allowed in interviews as well, including sign language interpreter, transcriber, etc. Interviewers should ask only job related questions. LAW
  4. The recruiting agencies shall allow the scribe or make available scribe in terms of the rules made in this behalf to persons who are blind for appearing / participating in the selection process.


Section 9: Incentives to Employers to Ensure Employment

  1. The appropriate Governments and the local authorities shall, provide incentives including, but not limited to, tax benefits to employers both in public and private sectors, to ensure that at least ten per cent of their work force is composed of persons with disabilities.
  2. The Appropriate government shall provide adequate and appropriate incentives, concessions, subsidies or awards to employers and establishments that make workspace accessible and barrier free for persons with all categories of disabilities. (Cross reference to accessibility)
  3. The Appropriate Government shall also frame a scheme for making grant to public and private sector for providing assistive devices to the employee with disabilities.(Cross reference to accessibility and personal mobility)


Section 10: Support Services

Appropriate government should provide all support services required for people aspiring to be in jobs or who are in jobs.

These services include but are not restricted to assistive technology, transcribers, interpreters, personal assistant, accessible transport, job coach

The Appropriate Government shall by notification formulate, support and implement provision of assistive devices, aid and appliances, educational, mobility and rehabilitation devices including such devices required for promotion of work, employment and occupations, completely free of cost for persons with disabilities coming from families below certain income within 6 months of enactment of this Act.

Discussion points:

Whether we have to use the term completely free of cost

[End of Discussion point]

  1. It shall be Employers obligation to provide for necessary assistive device and make necessary adjustment in work process.
  2. It shall be the duty of the employer to provide necessary enabling technologies, equipment, gadgets, aids and appliances and devices for utilizing the services of an employee with disability at his own cost.

The appropriate government shall implement a scheme for defraying the part of the cost of the employer to promote employment of the Persons with Disabilities. Enabling technologies, equipment, gadgets, aids and appliances and devices.


Section 11: Maintenance of Employment Records

  1. Every employer shall maintain such record in relation to the person with disability employed in his establishment in such form and in such manner as may be prescribed by the appropriate government. LAW
  2. The records maintained under sub section (i) shall be opened to inspection at all reasonable hours by such persons as may be authorized in this behalf by general or special order by the appropriate government. LAW
  3. Power to inspect records or documents in possession of any establishment: Any person authorize in writing by the Appropriate Authority, shall have access to any relevant record or document in the possession of any establishment and may enter at any reasonable time on the premises where he believes such record or document to be, and inspect or take copies of relevant records or documents or ask question necessary for obtaining such information. LAW
  4. All establishments shall appointment of Nodal Officers, who will be accountable for meeting employment provisions and there shall be provision for penal action in case of such default.

Discussion points:

It should be sequenced after framing the provision for the concerned authority.

[End of Discussion point]


Section 12 : Monitoring, Redressal of Grievances & Penal Action (NOTE: the group shall prepare the list of infringements and appropriate penalties for the same)

  1. Each establishment should have a mandated monitoring mechanism in place. Plus, the Government should have a monitoring mechanism to oversee non compliance.

    Discussion points:

    What is the penalty we want to suggest? Fine and imprisonment? Committee has to think the best way to get it done.

  2. Create mechanism for strict monitoring and implementation of provisions on work, employment and occupations.
  3. Appoint nodal officers in all establishments who will be accountable for meeting employment provisions and penal action on default.


Section 13: Self-Employment & Entrepreneurship

(An explicit acknowledgement/mention of the creative and entrepreneur capabilities of a PDs and requisite obligation on the State to formulate appropriate schemes in promotion of these capabilities. (Formulation of legislative strategies to promote self-employment entrepreneurship)

  1. Recognizing the rights of people with disabilities, the Appropriate Governments, Local Authorities and such other constituted bodies shall promote employment as a matter of right through the provision of ensuring self employment, entrepreneurship, gainful occupation, micro-credit, self help groups, cooperatives, community based rehabilitation, home based and domiciliary occupations, income generation, unemployment allowances, launching grants, loan facility, bank account operation etc. as measures of promoting income generation among people with disabilities.
  2. Provide loans with lesser rates of interest.
  3. Simplify and make accessible the procedure of getting loans, grants, operating bank accounts, etc.
  4. Give incentives to self-employed and cooperatives such as tax exemption, subsidies, preferential allotment of land, etc.
  5. The government should have a scheme for promoting and marketing products made by persons with disabilities or their cooperatives.
  6. Training, support, mentoring should be provided

Added following the discussion

Section 13(A) - The appropriate Government and local authorities shall set up skill development and livelihood promotion mission for PD.


Section 14: Allotment of Land:

  1. The Appropriate Government and Local Authorities shall by notification, frame, implement and monitor provision of land to persons with disabilities, their association, parents groups, organizations working for them on preferential basis at concessional rates for the purposes of promoting their housing, shelter, setting of occupations, businesses, enterprises, self help groups, gainful occupations, small industries, trading & business houses, recreation centers, establishment of special, inclusive & residential schools, teacher training centers, research & development centers, various units including factories, production centers owned and managed by persons with disabilities etc. with the provisions of reservation of not less than 10 percent in allotment of land to all categories of disabilities for these and such other purposes.
  2. Section 14 A: Appropriate Government and local authorities shall set up skill development and livelihood promotion mission for persons with disabilities.

Discussion points:

How will we bring it into law?

What is the legal identity of rural entrepreneurships/self-help groups?

How do we connect it with legal entity?

For registration what is the principle to be applied?

What is the legal mandate we should put it in the law?

[End of Discussion point]


Section 15: Reservation under Development Schemes and Livelihoods

  1. The Appropriate Governments and local authorities shall reserve not less than six percent, in all poverty alleviation, rural development, social development, community development, women empowerment, health, housing, shelter, special schemes for other marginalized groups, cooperatives, micro-credit, loan schemes and disaster and other relief etc. for the benefit of persons with disabilities and their families in the same proportions specified in section... of this chapter.
  2. All employment promotion programmes and schemes in urban and rural areas shall provide for similar scheme of reservation as contained in sub-section (i) of this section and every appropriate government including local government shall include jobs and vocations which can be performed by different specified disabilities.
  3. The procedures of getting these facilities through these schemes should be easy and accessible.
  4. Detailed data of beneficiaries with disabilities and their families should be maintained for all these schemes.
  5. Reserve not less than 6% of shops, kiosks, tehbazaries and dealerships of all kinds to be allotted by such agencies to persons with specified disabilities.
  6. The NHFDC shall review its norms and follow norms to banking system as regard to advances to persons with disabilities.
  7. Every State shall have a State Disability Development and Finance Corporation advance loans to people with disabilities at concessional rates of interest.
  8. Soft loans and market support facilities to support self employment initiatives by persons with disabilities;
  9. Preference in Government purchases to persons with disabilities, their associations, self help groups, vocational and on-the-job training centers, disability development organizations, parents groups and such other organizations

Added following the discussion

Sec 15(A) - An obligation to be incorporated for inducting PD in all employment generation and skill development, livelihood initiatives and programmatic interventions.

[End of Discussion point]


Section 16: Non-Discrimination in other Matters of Employment

  1. Staff Selection Commissions and Public Service Commissions to be mandated to change recruitment rules to recognize the rights of persons with disabilities
  2. 16 (b) Counting of Work Experience: The service by disabled employee in private sector shall be counted for determining his/her eligibility with reference to upper age limit.

    Every appropriate government and its establishment shall take into consideration the service rendered by a candidate with disability in the private sector while deciding his/her eligibility for recruitment to a given post with reference to eligibility criteria of upper age limit for entry into service.

  3. Relaxation in medical standards: Notwithstanding anything containing the recruitment rules to the contrary, the medical standards shall stand relaxed in case of a candidate with disability who is otherwise eligible for such post.
  4. Reasonable Accommodation: All employers shall extend "benefits" to include, but not limited to, reasonable accommodation, enabling technology, aids & equipment, access at workplace, adjustments to premises like rest rooms, canteens, etc. Modification of instructions & reference manuals, providing a reader or sign language interpreter and other facilities and services to ease disabled persons' fitment to perform reasonable work

Discussion points:

Whatever is included is included and all other get excluded. Create an explicit obligation on the authorities.

[End of Discussion point]

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