In India, where large masses of physically fit employees in the unorganised sector constantly have to struggle to safeguard their employment rights, the protection of these same rights for physically challenged persons is a distant dream. However, it seems that we are now observing a positive change in protecting the employment rights of the physically disabled class of employees.

India is a signatory to the ESCAP Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific Region and has enacted The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, to give effect to this proclamation. The sixth chapter of this legislation deals with the reservation of posts in services for the disabled. S.33 of the Act provides that every appropriate government shall fill up at least 3 per cent vacancies in every establishment with disabled persons. Of this 3 per cent, 1 per cent is reserved, under this Act, for persons suffering from blindness or low vision, hearing impaired and cerebral palsy or locomotor disability.

In a case before the Hon’ble High Court of Rajasthan, the Hon’ble Mr. Justice Mohammad Rafiq held that the denial of benefits of reservation for disabled persons under the Act on the part of the government is arbitrary, capricious, discriminatory and, hence, illegal.

In Arvind Kumar Joshi vs State of Rajasthan (2007 1 CLR 78), the petitioner was blind and had M.A. and B.Ed. degrees. In response to an advertisement by the Rajasthan Public Service Commission (R.P.S.C.), he applied for a post of school lecturer in Hindi subject. He was denied the post because he failed the screening test. He was informed by the R.P.S.C. that there was no reservation for the blind for the post of school lecturer (Hindi). This was challenged by the petitioner on the ground that under the Rajasthan Disabled Persons Employment Rules, 2000, reservation to these posts can be given even to the blind and, hence, the respondents cannot reject his candidature.

The respondent State of Rajasthan argued that since the petitioner chose to appear for the screening test and failed, he could not now challenge his eligibility conditions for the post. Moreover, the advertisement by the R.P.S.C. had clearly mentioned that of the posts for school lecturer (Hindi), 3 per cent reservation was meant for physically handicapped. It was available only to those candidates, who were orthopedically handicapped in one leg or both legs; it was not for blind candidates.

The Hon’ble Judge noted that of the 339 posts advertised for school lecturers, the petitioner was the only candidate applying in the category of handicapped as a reserved candidate. He was duly issued an admission card for the screening test and allowed to appear in the screening test as a blind candidate. In the state rules of the Rajasthan Government for the employment of the disabled had adopted the identification of the handicapped persons for various state jobs as per the government of India notification. Under this notification, the posts of university or college or school lecturers in Hindi can be reserved for the blind or partially blind too. Moreover, the government of Rajasthan had issued a notification in July 2001, whereby it was decided to give reservation to the extent of 30 per cent to the deaf, dumb and blind for admission to B.Ed. courses.

Looking to all the above facts, the Hon’ble Justice Mohammad Rafiq held that when the post of school lecturer (Hindi) is recognised by the government of India vide its rules for reservations of posts for disabled persons including the blind within educational institutions such as universities, colleges or schools, similar rules by the state of Rajasthan under the same legislation cannot deny this benefit to blind candidates because it will amount to treating equals as unequal. This will be against the right to equality under Articles 14 and 16 of the Constitution of India. Thus, the action of the R.S.P.C. in not treating the petitioner as eligible for reservation for the post of School Lecturer (Hindi) due to blindness is arbitrary, capricious and discriminatory and, therefore, illegal and unconstitutional.

Thus, this judgment restores the rights accorded by a special legislation for disabled persons, such as blind employees, for cases in which they were arbitrarily denied their rights by the state.