can anyone summarise the judgement ,please! On 1/21/20, Prasanna Kumar Pincha <prasannapin...@gmail.com> wrote: > > > Sent from my iPhone > > Begin forwarded message: > >> From: Prasanna Pincha <prasannapin...@gmail.com> >> Date: 20 January 2020 at 2:29:02 PM GMT-5 >> To: "AccessIndia: a list for discussing accessibility and issues >> concerning the disabled." <accessindia@accessindia.org.in> >> Subject: Judgment on reservation in promotion >> >> >> Dear friends! >> >> Warm greetings from New York. >> >> I am pasting at the bottom of this letter recent supreme court judgment in >> word format dated 14th January, 2020 pronounced by the Hon’ble supreme >> court of India in Sidaraju Vs. the State of Karnataka which is >> self-explanatory. >> >> Kudos to the learned counsel Mr. Rajan Mani and also to the learned >> counsel of Mr. Sidaraju and to others, if any, who have played a genuine >> role in obtaining such a landmark judgment of the Hon’ble supreme court. >> >> You may recall in this context that I had mentioned about this judgment >> just two three days back in one of my posts on this list. >> >> With warm regards, >> >> Prasanna Kumar Pincha. >> >> >> >> >> REPORTABLE >> IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL >> NO. 1567 OF 2017 >> >> Appellant(s) >> >> VERSUS >> >> STATE OF KARNATAKA & ORS. >> >> WITH >> >> REVIEW PETITION (C) NO. 36 OF 2017 >> IN >> CIVIL APPEAL NO. 5389 OF 2016 >> >> CIVIL APPEAL NO. 300 OF 2020 >> (Arising out of SLP (C) No. 11632 of 2017) >> >> CIVIL APPEAL NO. 299 2020 >> (Arising out of SLP (C) No. 21197 of 2017) >> >> CIVIL APPEAL NO. 310 2020 >> (Arising out of SLP (C) No. 4650 of 2019) >> >> CIVIL APPEAL NO. 6092 OF 2019 >> >> CIVIL APPEAL NO. 6095 OF 2019 >> >> >> >> J U D G M E N T >> "Delay condoned. Leave granted. >> Question which has arisen in this case is whether persons, governed under >> "The persons with Disabilities (Equal Opportunities, Protection of Rights >> and Full Participation) Act, 1995", can be given reservation in promotion. >> A view has been taken by this Court in Rajiv Kumar Gupta & Others v. Union >> of India & Others - (2016) 6 SCALE 417 in the affirmative. >> >> Mr. Ranjit Kumar, learned Solicitor General, points out that the >> prohibition against reservation in promotion laid down by the majority in >> Indra Sawhney & Others v. Union of India & Others - (1992) Supp. 3 SCC 215 >> applies not only to Article 16(4) but also 16(1) of the Constitution of >> India and inference to the contrary is not justified. >> >> Persons suffering from disability certainly require preferential treatment >> and such preferential treatment may also cover reservation in appointment >> but not reservation in promotion. Section 33 of the 1995 Act is required >> to be read and construed in that background. >> >> We find merit in the contention that the matter needs to be considered by >> the larger Bench. >> >> Accordingly, we direct the matter be placed before Hon'ble the Chief >> Justice for appropriate orders. >> >> Union of India is at liberty to file its affidavit within one week from >> today." >> >> 2) Parliament passed the Persons with Disabilities (Equal >> Opportunities, Protection of Rights and Full Participation) Act, 1995 >> being Act 1 of 1996. The statement of objects and reasons for the said Act >> states that a Conference held at Beijing, China, in December, 1992 had >> adopted the Proclamation on the Full Participation and Equality of People >> with Disabilities in the Asia and the Pacific region India being a >> signatory to the said proclamation found it >> necessary to enact a suitable legislation to provide for the special care >> that is necessary to remove discrimination against persons with >> disabilities and to make special provision for the integration of such >> persons into the social mainstream. >> 3) Section 2(i) of the said Act defines "disability" as follows:- >> >> "(i) "disability" means- >> >> (i) blindness; >> (ii) low vision; >> (iii) leprosy-cured; >> (iv) hearing impairment; >> (v) locomotor disability; >> (vi) mental retardation; >> (viii) mental illness;" >> >> Section 2(t) defines "person with disability" as follows:- >> >> "(t) "person with disability" means a person suffering from not less than >> forty per cent of any disability as certified by a medical authority;" >> 4) The Act then provides for Central and State Coordination >> Committees and prevention and early detection of disabilities. We are >> directly concerned with Chapter VI of the Act which deals with >> identification and reservation of posts for the purpose of employment. >> These Sections state as follows:- >> "32. Identification of posts which can be reserved for persons with >> disabilities.- Appropriate Governments shall- >> >> (a) identify posts, in the establishments, which can be reserved for the >> persons with disability; >> >> (b) at periodical intervals not exceeding three years, review the list >> of posts identified and >> up- date the list taking into consideration the developments in >> technology. >> >> 33. Reservation of posts.- Every appropriate Government shall appoint in >> every establishment such percentage of vacancies not less than three per >> cent for persons or class of persons with disability of which one per cent >> each shall he reserved for persons suffering from- >> >> (i) blindness or low vision; >> (ii) hearing impairment; >> (iii) locomotor disability or cerebral palsy, >> >> in the posts identified for each disability: >> >> Provided that the appropriate Government may, having regard to the type of >> work carried on in any department or establishment, by notification >> subject to such conditions, if any, as may be specified in such >> notification, exempt any establishment from the provisions of this >> section." >> >> 5) In Union of India and Another vs. National Federation of the Blind >> and Others, (2013) 10 SCC 772, this Court went into the provisions of the >> aforesaid Act in some detail and, in particular, Sections 32 and 33. The >> Court considered Office Memorandum dated 29.12.2005 of the Government of >> India, which stated that the quantum of reservation would be as follows:- >> >> "2. QUANTUM OF RESERVATION >> >> (i) Three percent of the vacancies in case of direct recruitment to >> Group A, B, C and D posts 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; >> >> (ii) 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. >> >> The Court then held as follows: >> >> "39) It has also been submitted on behalf of the appellants herein that >> since reservation of persons with disabilities in Group C and D has been >> in force prior to the enactment and is being made against the total number >> of vacancies in the cadre strength according to the OM dated >> 29.12.2005 but the actual import of Section 33 is that it has to be >> computed against identified posts only. This argument is also completely >> misconceived in view of the plain language of the said Section, as >> deliberated above. Even for the sake of argument, if we accept that the >> computation of reservation in respect of Group C and D posts is against >> the total vacancies in the cadre strength because of the applicability of >> the scheme of reservation in Group C and D posts prior to enactment, >> Section 33 does not distinguish the manner of computation of reservation >> between Group A and B posts or Group C and D posts respectively. As such, >> one statutory provision cannot be interpreted and applied differently for >> the same subject-matter. >> >> 40) Further, if we accept the interpretation contended by the appellants >> that computation of reservation has to be against the identified posts >> only, it would result into uncertainty of the application of the scheme of >> reservation because experience has shown that identification has never >> been uniform between the Centre and the States and even between the >> Departments of any Government. For example, while a post of middle school >> teacher has been notified as identified as suitable for the blind and low >> vision by the Central Government, it has not been identified as suitable >> for the blind and low vision in some States such as Gujarat and J&K, etc. >> This has led to a series of litigations which have been pending in various >> High Courts. In addition, Para 4 of the OM dated >> 29.12.2005 dealing with the issue of >> identification of jobs/posts in sub clause (b) states that list of the >> jobs/posts notified by the Ministry of Social Justice & Empowerment is not >> exhaustive which further makes the computation of reservation uncertain >> and arbitrary in the event of acceptance of the contention raised by the >> appellants. >> >> 42) A perusal of Indra Sawhney would reveal that the ceiling of 50% >> reservation applies only to reservation in favour of other Backward >> classes under Article 16(4) of the Constitution of India whereas the >> reservation in favour of persons with disabilities is horizontal, which is >> under Article 16(1) of the Constitution. In fact, this Court in the said >> pronouncement has used the example of 3% reservation in favour of persons >> with disabilities while dealing with the rule of 50% ceiling. Para 812 of >> the judgment clearly brings out that after selection and appointment of >> candidates under reservation for persons with disabilities they will be >> placed in the respective rosters of reserved category or open category >> respectively on the basis of the category to which they belong and, thus, >> the reservation for persons with disabilities per se has nothing to do >> with the ceiling of 50%. Para 812 is reproduced as follows:- >> >> "812............. all reservations are not of the same >> nature. There are two types of reservations, which may, for the sake of >> convenience, be referred to as 'vertical reservations' and 'horizontal >> reservations'. The reservations in favour of Scheduled Castes, the >> Scheduled Tribes and the other backward classes [under Article 16(4)] may >> be called vertical reservations whereas reservations in favour 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 inter-locking reservations. To be >> more precise, suppose 3% of the vacancies are reserved in favour of >> physically handicapped persons; this would be a reservation relatable to >> Clause (1) of Article 16. The persons selected against this quota will be >> placed in the appropriate category; if he belongs to S.C. category he will >> be placed in that quota by making necessary adjustments; similarly, if he >> belongs to open competition (O.C.) category, he will be placed in that >> category by making necessary >> adjustments. Even after providing >> for these >> horizontal reservations, the >> percentage of >> reservations in favour of backward class of citizens remains - and should >> remain - the same " >> >> Having concluded thus, the Court then held: >> >> "50) Employment is a key factor in the empowerment and inclusion of people >> with disabilities. It is an alarming reality that the disabled people are >> out of job not because their disability comes in the way of their >> functioning rather it is social and practical barriers that prevent them >> from joining the workforce. As a result, many disabled people live in >> poverty and in deplorable conditions. They are denied the right to make a >> useful contribution to their own lives and to the lives of their families >> and community. >> >> 51) The Union of India, the State Governments as well as the Union >> Territories have a categorical obligation under the Constitution of India >> and under various International treaties relating to human rights in >> general and treaties for disabled persons in particular, to protect the >> rights of disabled persons. Even though the Act was enacted way back in >> 1995, the disabled people have failed to get required benefit until today. >> >> 52) Thus, after thoughtful consideration, we are >> of the view that the computation of reservation for persons with >> disabilities has to be computed in case of Group A, B, C and D posts in an >> identical manner viz., "computing 3% reservation on total number of >> vacancies in the cadre strength" which is the intention of the >> legislature. Accordingly, certain clauses in the OM dated 29.12.2005, >> which are contrary to the above reasoning are struck down and we direct >> the appropriate Government to issue new Office >> Memorandum(s) consistent with the decision rendered by this Court. >> >> 53) Further, the reservation for persons with disabilities has nothing >> to do with the ceiling of 50% and hence, Indra Sawhney is not applicable >> with respect to the disabled persons." >> >> 6) Certain directions were then made in the end of the >> >> judgment to ensure proper implementation of the reservation >> policy for the disabled and to protect their rights. >> 7) We may mention that, pursuant to this Court's judgment, >> the Union of India issued Office Memorandum dated 03.12.2013 >> in which it made only one change in the Office Memorandum >> dated 29.12.2015 as follows:- >> "5. Keeping in view the directions of the Hon'ble Supreme Court, Para 14 >> of the OM dated 29.12.2005 is modified to the following extent: >> >> "Reservation for persons with disabilities in Group 'A' or Group 'B' posts >> shall be computed on the basis of total number of vacancies occurring in >> direct recruitment quota in all the Group 'A' posts or Group 'B' posts >> respectively, in the cadre." >> >> Contempt petitions were filed stating that the directions contained in >> this judgment have not been carried out, which is not the subject-matter >> before us. These petitions have been ordered to be listed after the >> decision in these cases. >> 8) The next important judgment that needs to be adverted >> to in this behalf is the judgment in National Federation of >> the Blind vs. Sanjay_Kothari,_Secy._Deptt._of_Persgnnel_and_ >> Training, 2015 (9) Scale 611, in para 10 of which para 51 of >> the earlier judgment was clarified as follows:- >> "10. Para 51 of the order on which reliance has been placed by Shri Rungta >> must be viewed in the context of the questions arising for answer before >> the Court i.e. the manner of computation of vacancies in case of Groups A, >> B, C and D posts. >> All that the Court in the aforesaid paragraph 51 has held is that the >> manner of such identification must be uniform in the case of all the >> groups viz. >> A, B, C and D. Nothing beyond the above should be read in paragraph 51 of >> the Courts' order as aforesaid." >> 9) We now come to the Division Bench judgment of this Court reported >> as Rajeev Kumar Gupta & Others v. Union of India & Others - (2016) 13 SCC >> 153. In this judgment, the posts in Prasar Bharati were classified into >> four Groups-A to D. The precise question that arose before the Court is >> set out in para 5 thereof in which it is stated that the statutory benefit >> of 3 per cent reservation in favour of those who are disabled is denied >> insofar as identified posts in Groups A and B are concerned, since these >> posts are to be filled through direct recruitment. After noticing the >> arguments based on the nine-Judge bench in Indra Sawhney vs. Union of >> India, 1992 Supp (3) SCC 217, this Court held: >> >> "14. We now examine the applicability of the prohibition on reservation in >> promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, >> reservation in promotions were permitted under law as interpreted by this >> Court in Southern Railway v. Rangachari, AIR 1962 SC 36. Indra Sawhney >> specifically overruled Rangachari to the extent that reservations in >> promotions were held in Rangachari to be permitted under Article 16(4) of >> the Constitution. Indra Sawhney specifically addressed the question >> whether reservations could be permitted in matters of promotion under >> Article 16(4). The majority held that reservations in promotion are not >> permitted under our constitutional scheme. >> >> 15. The respondent argued that the answer to Que- tion 7 in Indra >> Sawhney squarely covers the situation on hand and the reasons outlined by >> the majority opinion in Indra Sawhney at para 828 must also apply to bar >> reservation in promotions to identified posts of Group A and Group B. >> >> 16. We do not agree with the respondent's submission. Indra Sawhney >> ruling arose in the context of reservations in favour of backward >> classes of citizens falling within the sweep of Article 16(4). >> >> xxx xxx >> >> 21. The principle laid down in Indra Sawhney is applicable only when the >> State seeks to give preferential treatment in the matter of employment >> under the State to certain classes of citizens identified to be a backward >> class. Article 16(4) does not disable the State from providing >> differential treatment (reservations) to other classes of citizens under >> Article 16(1) if they otherwise deserve such treatment. However, for >> creating such preferential treatment under law, consistent with the >> mandate of Article 16(1), the State cannot choose any one of the factors >> such as caste, religion, etc. mentioned in Article 16(1) as the basis. The >> basis for providing reservation for PWD is physical disability and not any >> of the criteria forbidden under Article 16(1). Therefore, the rule of no >> reservation in promotions as laid down in Indra Sawhney has clearly and >> normatively no application to PWD. >> >> The Court then concluded: >> >> 24. A combined reading of Sections 32 and 33 of >> the 1995 Act explicates a fine and designed balance between requirements >> of administration and the imperative to provide greater opportunities to >> PWD. Therefore, as detailed in the first part of our analysis, the >> identification exercise under Section 32 is crucial. Once a post is >> identified, it means that >> a PWD is fully capable of >> discharging the functions associated with the identified post. Once found >> to be so capable, reservation under Section 33 to an extent of not less >> than three per cent must follow. Once the post is identified, it must be >> reserved for PWD irrespective of the mode of recruitment adopted by the >> State for filling up of the said post. >> >> 25. In light of the preceding analysis, we declare the impugned >> memoranda as illegal and inconsistent with the 1995 Act. We further direct >> the Government to extend three percent reservation to PWD in all >> identified posts in Group A and Group B, irrespective of the mode of >> filling up of such posts. This writ petition is accordingly allowed." >> 10) After hearing learned counsel appearing on behalf of all the >> parties including the learned Additional Solicitor General, we are of the >> view that the judgment of this Court cannot be faulted when it stated that >> Indra Sawhney dealt with a different problem and, therefore, cannot be >> followed. >> >> 11) We may also note that review >> petitions were filed and >> have since been dismissed >> against both the 2013 and 2016 >> judgments. Consequently, the reference stands answered by stating that the >> 2013 judgment as clarified in National Federation of the Blind vs. Sanjay >> Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 and >> the judgment in Rajeev Kumar Gupta & Others v. Union of India & Others - >> (2016) 13 SCC 153 case will bind the Union and the State Governments and >> must be strictly followed notwithstanding the Office Memorandum dated >> 29.12.2005, in particular. Since the >> reference has been disposed of by us today, >> contempt petitions be listed for hearing. >> Civil Appeal No. 1567 OF 2017: >> 12) Application for impleadment >> in C.A. 1567/2017 is >> allowed. >> 13) This matter arises out of the order of the Central Administrative >> Tribunal, Bangalore Bench, Bangalore dated 24.07.2015 in which the 2005 >> O.M has been followed without reference to any of the judgments of this >> Court. A writ petition from the aforesaid judgment was dismissed by the >> Karnataka High Court on 23.03.2016, stating that the precise >> question of law that arises in this case was kept open. Accordingly, we >> set aside the judgment of the CAT and consequently that of the High Court. >> The case is to be governed by the three decisions of this Court outlined >> above, which judgments have to be followed by the Union of India and the >> States. It is not necessary to pass any further directions. The appeal is >> disposed of accordingly. >> >> Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of 2016: >> 14) Delay is condoned. >> 15) This matter stands dismissed in view of today's judgment. >> >> SLP (C) No. 11632 of 2017: >> 16) Leave granted. >> 17) The impugned judgment of the High Court dated >> 22.06.2016 in this appeal, after referring to the judgment >> of this Court in National Federation of the Blind vs. >> Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 >> (9) Scale 611 arrived at the following conclusion: >> "8. The contention of the learned Attorney General was that except for >> sub-section 2 of Section 47, there was no other provision under the >> Disabilities Act dealing with the promotions and, therefore, on the >> strength of sub-section 2 of Section 47 of the Disabilities Act, it cannot >> be contended that the Act provides for reservation in the matter of >> promotion. In paragraphs 9 and 10 of the judgment and order dated 1st >> September, >> 2015, the Apex Court has dealt with issue of reservation in promotion. In >> paragraph 10 of the judgment and order dated 1st September, >> 2015, the Apex Court has explained paragraph 51 of the earlier judgment >> and order dated 8th October, 2013 by observing that what is observed in >> paragraph 51 is about the manner of computation of vacancies in case of >> all the Groups viz. A, B, C and D posts. That is the reason why the Apex >> Court declined to initiate any action for contempt on the basis of >> allegations that there is no provision made for the reservation of persons >> with disabilities in promotion. In terms the Apex Court observed that what >> is held in paragraph 51 of the judgment and order dated 8th October, 2013 >> cannot be construed to mean that there is a direction issued to provide >> for the reservation for the persons with disabilities even in the >> promotional posts. >> >> 9. In view of the clarification issued by the Apex Court under the order >> dated 1st September, 2015 in Contempt Petition (Civil) No. 499 of 2014, >> now the directions contained in paragraph 13 of the judgment and order >> dated 4th December, 2013 cannot be implemented insofar as the same deal >> with giving benefit of reservation to the persons with disabilities in the >> matter of promotion to the posts in the Indian Administrative Service by >> applying the Office Memorandum dated 29th December, 2005." >> Consequently, the High Court held that no action can be initiated in the >> contempt petition on the ground that reservation had not been provided in >> the matter of promotion. We may hasten to add that this is not a correct >> reading of the law laid down by this Court. National Federation of the >> Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) >> Scale 611 was a judgment in a contempt petition in which the contention >> taken up by the petitioner was repelled by stating that para 51 of the >> 2013 judgment has held that the manner of identification of posts of all >> groups must be uniform and nothing beyond. After the >> declaration of the law in Rajeev Kumar Gupta & Others v. Union of India & >> Others - (2016) 13 SCC 153 it is now clear beyond doubt that the O.M. of >> 2005 cannot be given effect to when it is in the teeth of the 2016 >> judgment. On the basis of this judgment, the impugned judgment is set >> aside and the contempt petition is restored to the file. The petition be >> disposed of on merits.The appeal is disposed of accordingly. >> >> SLP (C) No. 21197 of 2017: >> 18) Leave granted. >> 19) In view of our judgment today, the appeal is dismissed. >> >> SLP (C) No. 4650 of 2019: >> 20) Leave granted. >> 21) Having heard learned senior counsel for the appellant >> at some length, we may note that paragraph 4(C) of the >> counter affidavit states as follows: >> "(C) That Chhattisgarh State Power Holding Company Ltd. has appointed a >> committee for identification of the post upon which reservation in >> promotion will be applicable. The said Committee in its meeting held on >> 10.01.2017 decided that the post of Executive Engineer, Mechanical and >> Electrical in transmission, distribution and generation companies where >> the Executive Engineer has to visit sites and perform various acts >> personally, it is not advisable to keep such post under reservation. >> However, reservation will be applicable in promotion to the post of >> Executive Engineer, Computer Science, Information & Technology and Civil >> Engineering. The said decision of the company has not been challenged till >> date and thus binding on all the employees as per the provisions of Rights >> of Persons with Disabilities Act, 2016. On this ground also the Special >> Leave Petition filed by the Petitioner is not maintainable." >> 22) It is clear that the Internal Committee of respondent No. 2 has >> applied its mind to the post of Executive Engineer, Mechanical and >> Electrical, and has opined that in the said post, reservation for the >> physically disabled will not be possible for the reason given therein. >> 23) >> Learned senior counsel appearing on behalf of the appellant has >> pointed out that as per the Gazette Notification dated 31.05.2001, it is >> an Expert Committee that has to identify, keeping in view the provisions >> of the Persons with Disabilities (Equal Opportunities, Protection of >> Rights and Full Participation) Act, 1995, and Section 32 in particular, >> suitable posts for persons with >> disabilities, and this has not been done in the present case. Since this >> point has not been argued in any of the cross appeals, we reserve liberty >> to the appellant to challenge the Internal Committee's findings on grounds >> available to them in law. Apart from this, the impugned judgment does not >> call for interference. The appeal is >> disposed of accordingly. >> 24) Needless to add if such a challenge succeeds, the three judgments >> pointed out by us in the Judgment in the lead matter, i.e., Civil Appeal >> No. 1567 of 2017 will have to be applied and followed. >> >> Civil Appeal No. 6092 of 2019: >> 25) The appeal is dismissed in accordance with today's judgment. >> Interim order dated 08.07.2019 stands vacated. >> It has been contended before us that there are only 2 Group 'A' posts >> available/identified as a result of which the reservation will have to be >> worked in accordance with the roster system. We may only clarify that we >> have not, in any manner, indicated as to how such system should be worked. >> >> Civil Appeal No. 6095 of 2019: >> >> 26) The appeal is dismissed in view of today's judgment. >> >> ............................................................ J. >> (ROHINTON FALI NARIMAN) >> >> J. >> (ANIRUDDHA BOSE) >> >> J. >> (V. RAMASUBRAMANIAN) >> >> New Delhi; >> January 14-15, 2020. >> > > > > Search for old postings at: > http://www.mail-archive.com/accessindia@accessindia.org.in/ > > To unsubscribe send a message to > accessindia-requ...@accessindia.org.in > with the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, please > visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > > > Disclaimer: > 1. Contents of the mails, factual, or otherwise, reflect the thinking of the > person sending the mail and AI in no way relates itself to its veracity; > > 2. 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