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.
>>
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