Will this order will applicable on all government banks? On 21/01/2020, bhawani shankar verma <bsvermad...@gmail.com> wrote: > yes, it is clearcut order in judgment that DOPT have to issue fresh OM in > the context of this judgment. > > ----- Original Message ----- > From: "vivek doddamani" <vivekka...@gmail.com> > To: "AccessIndia: a list for discussing accessibility and issues concerning > the disabled." <accessindia@accessindia.org.in> > Sent: Tuesday, January 21, 2020 3:51 PM > Subject: Re: [AI] Fwd: Judgment on reservation in promotion > > >> 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. 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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. 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