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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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