Regarding this jJudgement I had discussion in administration branch of my Office there they said promotion cannot be given on Supreme court judgement, department of personnal & training DOPT of Government of India should endorsement of this judgement then only it can be possible for implement of this judgement.
On 1/21/20, Binni Kumari <binnikumari.in...@gmail.com> wrote: > Hi, > > I am trying to summarise the judgment from a lay person's perspective > for my own understanding. The experts, kindly fill the gaps or correct > me if I do goof ups. 1. The judgment dated 14th Jan 2020 is a > reviewed petition on Civil appeal 1567 of 2017 which is based on PWD > Act, 1995 "section 32 and 33 -reservation in promotion". > 2. This judgment is for a very old case of 2008 Ravi Kumar Gupta > versis Prasar Bharti as and he and few others were denied reservation > in promotion in group A. However, Prasar Bharti considered them unfit > due to their disability despite having chemical engineering > background. > 3. The case was reviewed after 8 years on 30th June 2016 and the > judgment was given in 2017. > 4. After that there were one or two more reviewed petitions in 2019 > and finally, Civil Appeal No. 1567 of 2017 was reviewed dated 14th Jan > 2020 in the form of latest judgment. > 5. The gist of the judgment is that the judgment passed in 2017 will > become applicable after the issueance of this reviewed petition. > 6. Though, there was already reservation in promotion for groups C and > D based on SC judgment dated 8th October 2013 but the salient feature > of this particular judgment is that now there will be reservation in > promotion for groups A and B. However, there are very few posts > reserved for PWds in groups A and B thus, jobs roster making > committee really needs to be conscious of being able to do justice > with the policy of reservation in promotion. > > On 1/21/20, Marisport A <marispor...@gmail.com> wrote: >> i feel this judgment (14th January, 2020) could be the proper reference. >> since, you are the first one to approach the government then, you ask >> the ministry of social welfare along with Law to modify the promotion >> policy in accordance with the judgment. >> >> >> >> On 1/21/20, Kasimani C <sangaman1...@gmail.com> wrote: >>> Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of 2016 >>> judgement >>> >>> https://indiankanoon.org/doc/190245590/ >>> >>> On Tue, Jan 21, 2020 at 12:11 PM Kasimani C <sangaman1...@gmail.com> >>> wrote: >>> >>>> Please say anybody : >>>> >>>> I am disabled person and working as Group C post in tamilnadu state >>>> government, On Jan 2017 I gave letter to promotion attached with >>>> Disability acts-2016, supreme court judgments and G.Os but they asking >>>> reference to already got promotion by Disabled persons but i have no >>>> reference. Please anybody have citation/reference/proofs above said >>>> problem send me. >>>> >>>> On Tue, Jan 21, 2020 at 11:33 AM vishal sharma >>>> <sharma1010vis...@gmail.com> >>>> wrote: >>>> >>>>> 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. AI cannot be held liable for any commission/omission based on the >>>>> mails >>>>> > sent through this mailing list.. >>>>> > >>>>> > >>>>> >>>>> >>>>> >>>>> >>>>> 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. AI cannot be held liable for any commission/omission based on the >>>>> mails sent through this mailing list.. >>>>> >>>>> >>>> >>>> -- >>>> * ___* >>>> *C.Kasimani* M.A., M.L.I.S., M.Phil., Ph.D, PGDCA., NET., SET >>>> Librarian and Information Asst, >>>> Anna Centenary Library, >>>> Gandhimandabam Road, >>>> Kotturpuram, >>>> Chennai-600085. >>>> >>> >>> >>> -- >>> * ___* >>> *C.Kasimani* M.A., M.L.I.S., M.Phil., Ph.D, PGDCA., NET., SET >>> Librarian and Information Asst, >>> Anna Centenary Library, >>> Gandhimandabam Road, >>> Kotturpuram, >>> Chennai-600085. >>> >>> >>> >>> 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. AI cannot be held liable for any commission/omission based on the >>> mails >>> sent through this mailing list.. >>> >>> >> >> >> >> >> 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. AI cannot be held liable for any commission/omission based on the mails >> sent through this mailing list.. >> >> > > > -- > Let's be in peace but not into pieces > > > > > 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. AI cannot be held liable for any commission/omission based on the mails > sent through this mailing list.. > > -- Vivek Doddamani Ph-9868954833 & 08860410944 skype: vivek.doddamani, FB: vivek doddamani. 105, Lancer Road, Near Mall Road, Delhi-110054. 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. AI cannot be held liable for any commission/omission based on the mails sent through this mailing list..
