https://main.sci.gov.in/supremecourt/2016/23612/23612_2016_4_101_19640_Judgement_14-Jan-2020.pdf
On Tue, Jan 21, 2020 at 12:13 PM Kasimani C <sangaman1...@gmail.com> wrote: > Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of 2016 > judgement > > https://indiankanoon.org/doc/190245590/ > > On Tue, Jan 21, 2020 at 12:11 PM Kasimani C <sangaman1...@gmail.com> > wrote: > >> Please say anybody : >> >> I am disabled person and working as Group C post in tamilnadu state >> government, On Jan 2017 I gave letter to promotion attached with >> Disability acts-2016, supreme court judgments and G.Os but they asking >> reference to already got promotion by Disabled persons but i have no >> reference. Please anybody have citation/reference/proofs above said >> problem send me. >> >> On Tue, Jan 21, 2020 at 11:33 AM vishal sharma < >> sharma1010vis...@gmail.com> wrote: >> >>> can anyone summarise the judgement ,please! >>> >>> On 1/21/20, Prasanna Kumar Pincha <prasannapin...@gmail.com> wrote: >>> > >>> > >>> > Sent from my iPhone >>> > >>> > Begin forwarded message: >>> > >>> >> From: Prasanna Pincha <prasannapin...@gmail.com> >>> >> Date: 20 January 2020 at 2:29:02 PM GMT-5 >>> >> To: "AccessIndia: a list for discussing accessibility and issues >>> >> concerning the disabled." <accessindia@accessindia.org.in> >>> >> Subject: Judgment on reservation in promotion >>> >> >>> >> >>> >> Dear friends! >>> >> >>> >> Warm greetings from New York. >>> >> >>> >> I am pasting at the bottom of this letter recent supreme court >>> judgment in >>> >> word format dated 14th January, 2020 pronounced by the Hon’ble >>> supreme >>> >> court of India in Sidaraju Vs. the State of Karnataka which is >>> >> self-explanatory. >>> >> >>> >> Kudos to the learned counsel Mr. Rajan Mani and also to the learned >>> >> counsel of Mr. Sidaraju and to others, if any, who have played a >>> genuine >>> >> role in obtaining such a landmark judgment of the Hon’ble supreme >>> court. >>> >> >>> >> You may recall in this context that I had mentioned about this >>> judgment >>> >> just two three days back in one of my posts on this list. >>> >> >>> >> With warm regards, >>> >> >>> >> Prasanna Kumar Pincha. >>> >> >>> >> >>> >> >>> >> >>> >> REPORTABLE >>> >> IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL >>> APPEAL >>> >> NO. 1567 OF 2017 >>> >> >>> >> Appellant(s) >>> >> >>> >> VERSUS >>> >> >>> >> STATE OF KARNATAKA & ORS. >>> >> >>> >> WITH >>> >> >>> >> REVIEW PETITION (C) NO. 36 OF 2017 >>> >> IN >>> >> CIVIL APPEAL NO. 5389 OF 2016 >>> >> >>> >> CIVIL APPEAL NO. 300 OF 2020 >>> >> (Arising out of SLP (C) No. 11632 of 2017) >>> >> >>> >> CIVIL APPEAL NO. 299 2020 >>> >> (Arising out of SLP (C) No. 21197 of 2017) >>> >> >>> >> CIVIL APPEAL NO. 310 2020 >>> >> (Arising out of SLP (C) No. 4650 of 2019) >>> >> >>> >> CIVIL APPEAL NO. 6092 OF 2019 >>> >> >>> >> CIVIL APPEAL NO. 6095 OF 2019 >>> >> >>> >> >>> >> >>> >> J U D G M E N T >>> >> "Delay condoned. Leave granted. >>> >> Question which has arisen in this case is whether persons, governed >>> under >>> >> "The persons with Disabilities (Equal Opportunities, Protection of >>> Rights >>> >> and Full Participation) Act, 1995", can be given reservation in >>> promotion. >>> >> A view has been taken by this Court in Rajiv Kumar Gupta & Others v. >>> Union >>> >> of India & Others - (2016) 6 SCALE 417 in the affirmative. >>> >> >>> >> Mr. Ranjit Kumar, learned Solicitor General, points out that the >>> >> prohibition against reservation in promotion laid down by the >>> majority in >>> >> Indra Sawhney & Others v. Union of India & Others - (1992) Supp. 3 >>> SCC 215 >>> >> applies not only to Article 16(4) but also 16(1) of the Constitution >>> of >>> >> India and inference to the contrary is not justified. >>> >> >>> >> Persons suffering from disability certainly require preferential >>> treatment >>> >> and such preferential treatment may also cover reservation in >>> appointment >>> >> but not reservation in promotion. Section 33 of the 1995 Act is >>> required >>> >> to be read and construed in that background. >>> >> >>> >> We find merit in the contention that the matter needs to be >>> considered by >>> >> the larger Bench. >>> >> >>> >> Accordingly, we direct the matter be placed before Hon'ble the Chief >>> >> Justice for appropriate orders. >>> >> >>> >> Union of India is at liberty to file its affidavit within one week >>> from >>> >> today." >>> >> >>> >> 2) Parliament passed the Persons with Disabilities (Equal >>> >> Opportunities, Protection of Rights and Full Participation) Act, 1995 >>> >> being Act 1 of 1996. The statement of objects and reasons for the >>> said Act >>> >> states that a Conference held at Beijing, China, in December, 1992 had >>> >> adopted the Proclamation on the Full Participation and Equality of >>> People >>> >> with Disabilities in the Asia and the Pacific region India being a >>> >> signatory to the said proclamation found it >>> >> necessary to enact a suitable legislation to provide for the special >>> care >>> >> that is necessary to remove discrimination against persons with >>> >> disabilities and to make special provision for the integration of such >>> >> persons into the social mainstream. >>> >> 3) Section 2(i) of the said Act defines "disability" as follows:- >>> >> >>> >> "(i) "disability" means- >>> >> >>> >> (i) blindness; >>> >> (ii) low vision; >>> >> (iii) leprosy-cured; >>> >> (iv) hearing impairment; >>> >> (v) locomotor disability; >>> >> (vi) mental retardation; >>> >> (viii) mental illness;" >>> >> >>> >> Section 2(t) defines "person with disability" as follows:- >>> >> >>> >> "(t) "person with disability" means a person suffering from not less >>> than >>> >> forty per cent of any disability as certified by a medical authority;" >>> >> 4) The Act then provides for Central and State Coordination >>> >> Committees and prevention and early detection of disabilities. We are >>> >> directly concerned with Chapter VI of the Act which deals with >>> >> identification and reservation of posts for the purpose of employment. >>> >> These Sections state as follows:- >>> >> "32. Identification of posts which can be reserved for persons with >>> >> disabilities.- Appropriate Governments shall- >>> >> >>> >> (a) identify posts, in the establishments, which can be reserved >>> for the >>> >> persons with disability; >>> >> >>> >> (b) at periodical intervals not exceeding three years, review the >>> list >>> >> of posts identified and >>> >> up- date the list taking into consideration the developments in >>> >> technology. >>> >> >>> >> 33. Reservation of posts.- Every appropriate Government shall appoint >>> in >>> >> every establishment such percentage of vacancies not less than three >>> per >>> >> cent for persons or class of persons with disability of which one per >>> cent >>> >> each shall he reserved for persons suffering from- >>> >> >>> >> (i) blindness or low vision; >>> >> (ii) hearing impairment; >>> >> (iii) locomotor disability or cerebral palsy, >>> >> >>> >> in the posts identified for each disability: >>> >> >>> >> Provided that the appropriate Government may, having regard to the >>> type of >>> >> work carried on in any department or establishment, by notification >>> >> subject to such conditions, if any, as may be specified in such >>> >> notification, exempt any establishment from the provisions of this >>> >> section." >>> >> >>> >> 5) In Union of India and Another vs. National Federation of the >>> Blind >>> >> and Others, (2013) 10 SCC 772, this Court went into the provisions of >>> the >>> >> aforesaid Act in some detail and, in particular, Sections 32 and 33. >>> The >>> >> Court considered Office Memorandum dated 29.12.2005 of the Government >>> of >>> >> India, which stated that the quantum of reservation would be as >>> follows:- >>> >> >>> >> "2. QUANTUM OF RESERVATION >>> >> >>> >> (i) Three percent of the vacancies in case of direct recruitment to >>> >> Group A, B, C and D posts shall be reserved for persons with >>> disabilities >>> >> of which one per cent each shall be reserved for persons suffering >>> from >>> >> (i) blindness or low vision, (ii) hearing impairment and (iii) >>> locomotor >>> >> disability or cerebral palsy in the posts identified for each >>> disability; >>> >> >>> >> (ii) Three percent of the vacancies in case of promotion to Group >>> D, >>> >> and Group C posts in which the element of direct recruitment, if any, >>> does >>> >> not exceed 75%, shall be reserved for persons with disabilities of >>> which >>> >> one per cent each shall be reserved for persons suffering from (i) >>> >> blindness or low vision, (ii) hearing impairment and (iii) locomotor >>> >> disability or cerebral palsy in the posts identified for each >>> disability. >>> >> >>> >> The Court then held as follows: >>> >> >>> >> "39) It has also been submitted on behalf of the appellants herein >>> that >>> >> since reservation of persons with disabilities in Group C and D has >>> been >>> >> in force prior to the enactment and is being made against the total >>> number >>> >> of vacancies in the cadre strength according to the OM dated >>> >> 29.12.2005 but the actual import of Section 33 is that it has to be >>> >> computed against identified posts only. This argument is also >>> completely >>> >> misconceived in view of the plain language of the said Section, as >>> >> deliberated above. Even for the sake of argument, if we accept that >>> the >>> >> computation of reservation in respect of Group C and D posts is >>> against >>> >> the total vacancies in the cadre strength because of the >>> applicability of >>> >> the scheme of reservation in Group C and D posts prior to enactment, >>> >> Section 33 does not distinguish the manner of computation of >>> reservation >>> >> between Group A and B posts or Group C and D posts respectively. As >>> such, >>> >> one statutory provision cannot be interpreted and applied differently >>> for >>> >> the same subject-matter. >>> >> >>> >> 40) Further, if we accept the interpretation contended by the >>> appellants >>> >> that computation of reservation has to be against the identified posts >>> >> only, it would result into uncertainty of the application of the >>> scheme of >>> >> reservation because experience has shown that identification has never >>> >> been uniform between the Centre and the States and even between the >>> >> Departments of any Government. For example, while a post of middle >>> school >>> >> teacher has been notified as identified as suitable for the blind and >>> low >>> >> vision by the Central Government, it has not been identified as >>> suitable >>> >> for the blind and low vision in some States such as Gujarat and J&K, >>> etc. >>> >> This has led to a series of litigations which have been pending in >>> various >>> >> High Courts. In addition, Para 4 of the OM dated >>> >> 29.12.2005 dealing with the issue of >>> >> identification of jobs/posts in sub clause (b) states that list of the >>> >> jobs/posts notified by the Ministry of Social Justice & Empowerment >>> is not >>> >> exhaustive which further makes the computation of reservation >>> uncertain >>> >> and arbitrary in the event of acceptance of the contention raised by >>> the >>> >> appellants. >>> >> >>> >> 42) A perusal of Indra Sawhney would reveal that the ceiling of 50% >>> >> reservation applies only to reservation in favour of other Backward >>> >> classes under Article 16(4) of the Constitution of India whereas the >>> >> reservation in favour of persons with disabilities is horizontal, >>> which is >>> >> under Article 16(1) of the Constitution. In fact, this Court in the >>> said >>> >> pronouncement has used the example of 3% reservation in favour of >>> persons >>> >> with disabilities while dealing with the rule of 50% ceiling. Para >>> 812 of >>> >> the judgment clearly brings out that after selection and appointment >>> of >>> >> candidates under reservation for persons with disabilities they will >>> be >>> >> placed in the respective rosters of reserved category or open category >>> >> respectively on the basis of the category to which they belong and, >>> thus, >>> >> the reservation for persons with disabilities per se has nothing to do >>> >> with the ceiling of 50%. Para 812 is reproduced as follows:- >>> >> >>> >> "812............. all reservations are not of the same >>> >> nature. There are two types of reservations, which may, for the sake >>> of >>> >> convenience, be referred to as 'vertical reservations' and 'horizontal >>> >> reservations'. The reservations in favour of Scheduled Castes, the >>> >> Scheduled Tribes and the other backward classes [under Article 16(4)] >>> may >>> >> be called vertical reservations whereas reservations in favour of >>> >> physically handicapped [under Clause (1) of Article 16] can be >>> referred to >>> >> as horizontal reservations. Horizontal reservations cut across the >>> >> vertical reservations - what is called inter-locking reservations. To >>> be >>> >> more precise, suppose 3% of the vacancies are reserved in favour of >>> >> physically handicapped persons; this would be a reservation relatable >>> to >>> >> Clause (1) of Article 16. The persons selected against this quota >>> will be >>> >> placed in the appropriate category; if he belongs to S.C. category he >>> will >>> >> be placed in that quota by making necessary adjustments; similarly, >>> if he >>> >> belongs to open competition (O.C.) category, he will be placed in that >>> >> category by making necessary >>> >> adjustments. Even after >>> providing >>> >> for these >>> >> horizontal reservations, the >>> >> percentage of >>> >> reservations in favour of backward class of citizens remains - and >>> should >>> >> remain - the same " >>> >> >>> >> Having concluded thus, the Court then held: >>> >> >>> >> "50) Employment is a key factor in the empowerment and inclusion of >>> people >>> >> with disabilities. It is an alarming reality that the disabled people >>> are >>> >> out of job not because their disability comes in the way of their >>> >> functioning rather it is social and practical barriers that prevent >>> them >>> >> from joining the workforce. As a result, many disabled people live in >>> >> poverty and in deplorable conditions. They are denied the right to >>> make a >>> >> useful contribution to their own lives and to the lives of their >>> families >>> >> and community. >>> >> >>> >> 51) The Union of India, the State Governments as well as the Union >>> >> Territories have a categorical obligation under the Constitution of >>> India >>> >> and under various International treaties relating to human rights in >>> >> general and treaties for disabled persons in particular, to protect >>> the >>> >> rights of disabled persons. Even though the Act was enacted way back >>> in >>> >> 1995, the disabled people have failed to get required benefit until >>> today. >>> >> >>> >> 52) Thus, after thoughtful consideration, we are >>> >> of the view that the computation of reservation for persons with >>> >> disabilities has to be computed in case of Group A, B, C and D posts >>> in an >>> >> identical manner viz., "computing 3% reservation on total number of >>> >> vacancies in the cadre strength" which is the intention of the >>> >> legislature. Accordingly, certain clauses in the OM dated 29.12.2005, >>> >> which are contrary to the above reasoning are struck down and we >>> direct >>> >> the appropriate Government to issue new Office >>> >> Memorandum(s) consistent with the decision rendered by this Court. >>> >> >>> >> 53) Further, the reservation for persons with disabilities has >>> nothing >>> >> to do with the ceiling of 50% and hence, Indra Sawhney is not >>> applicable >>> >> with respect to the disabled persons." >>> >> >>> >> 6) Certain directions were then made in the end of the >>> >> >>> >> judgment to ensure proper implementation of the reservation >>> >> policy for the disabled and to protect their rights. >>> >> 7) We may mention that, pursuant to this Court's judgment, >>> >> the Union of India issued Office Memorandum dated 03.12.2013 >>> >> in which it made only one change in the Office Memorandum >>> >> dated 29.12.2015 as follows:- >>> >> "5. Keeping in view the directions of the Hon'ble Supreme Court, Para >>> 14 >>> >> of the OM dated 29.12.2005 is modified to the following extent: >>> >> >>> >> "Reservation for persons with disabilities in Group 'A' or Group 'B' >>> posts >>> >> shall be computed on the basis of total number of vacancies occurring >>> in >>> >> direct recruitment quota in all the Group 'A' posts or Group 'B' posts >>> >> respectively, in the cadre." >>> >> >>> >> Contempt petitions were filed stating that the directions contained in >>> >> this judgment have not been carried out, which is not the >>> subject-matter >>> >> before us. These petitions have been ordered to be listed after the >>> >> decision in these cases. >>> >> 8) The next important judgment that needs to be adverted >>> >> to in this behalf is the judgment in National Federation of >>> >> the Blind vs. Sanjay_Kothari,_Secy._Deptt._of_Persgnnel_and_ >>> >> Training, 2015 (9) Scale 611, in para 10 of which para 51 of >>> >> the earlier judgment was clarified as follows:- >>> >> "10. Para 51 of the order on which reliance has been placed by Shri >>> Rungta >>> >> must be viewed in the context of the questions arising for answer >>> before >>> >> the Court i.e. the manner of computation of vacancies in case of >>> Groups A, >>> >> B, C and D posts. >>> >> All that the Court in the aforesaid paragraph 51 has held is that the >>> >> manner of such identification must be uniform in the case of all the >>> >> groups viz. >>> >> A, B, C and D. Nothing beyond the above should be read in paragraph >>> 51 of >>> >> the Courts' order as aforesaid." >>> >> 9) We now come to the Division Bench judgment of this Court >>> reported >>> >> as Rajeev Kumar Gupta & Others v. Union of India & Others - (2016) 13 >>> SCC >>> >> 153. In this judgment, the posts in Prasar Bharati were classified >>> into >>> >> four Groups-A to D. The precise question that arose before the Court >>> is >>> >> set out in para 5 thereof in which it is stated that the statutory >>> benefit >>> >> of 3 per cent reservation in favour of those who are disabled is >>> denied >>> >> insofar as identified posts in Groups A and B are concerned, since >>> these >>> >> posts are to be filled through direct recruitment. After noticing the >>> >> arguments based on the nine-Judge bench in Indra Sawhney vs. Union of >>> >> India, 1992 Supp (3) SCC 217, this Court held: >>> >> >>> >> "14. We now examine the applicability of the prohibition on >>> reservation in >>> >> promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, >>> >> reservation in promotions were permitted under law as interpreted by >>> this >>> >> Court in Southern Railway v. Rangachari, AIR 1962 SC 36. Indra Sawhney >>> >> specifically overruled Rangachari to the extent that reservations in >>> >> promotions were held in Rangachari to be permitted under Article >>> 16(4) of >>> >> the Constitution. Indra Sawhney specifically addressed the question >>> >> whether reservations could be permitted in matters of promotion under >>> >> Article 16(4). The majority held that reservations in promotion are >>> not >>> >> permitted under our constitutional scheme. >>> >> >>> >> 15. The respondent argued that the answer to Que- tion 7 in Indra >>> >> Sawhney squarely covers the situation on hand and the reasons >>> outlined by >>> >> the majority opinion in Indra Sawhney at para 828 must also apply to >>> bar >>> >> reservation in promotions to identified posts of Group A and Group B. >>> >> >>> >> 16. We do not agree with the respondent's submission. Indra >>> Sawhney >>> >> ruling arose in the context of reservations in favour of backward >>> >> classes of citizens falling within the sweep of Article 16(4). >>> >> >>> >> xxx xxx >>> >> >>> >> 21. The principle laid down in Indra Sawhney is applicable only when >>> the >>> >> State seeks to give preferential treatment in the matter of employment >>> >> under the State to certain classes of citizens identified to be a >>> backward >>> >> class. Article 16(4) does not disable the State from providing >>> >> differential treatment (reservations) to other classes of citizens >>> under >>> >> Article 16(1) if they otherwise deserve such treatment. However, for >>> >> creating such preferential treatment under law, consistent with the >>> >> mandate of Article 16(1), the State cannot choose any one of the >>> factors >>> >> such as caste, religion, etc. mentioned in Article 16(1) as the >>> basis. The >>> >> basis for providing reservation for PWD is physical disability and >>> not any >>> >> of the criteria forbidden under Article 16(1). Therefore, the rule of >>> no >>> >> reservation in promotions as laid down in Indra Sawhney has clearly >>> and >>> >> normatively no application to PWD. >>> >> >>> >> The Court then concluded: >>> >> >>> >> 24. A combined reading of Sections 32 and 33 of >>> >> the 1995 Act explicates a fine and designed balance between >>> requirements >>> >> of administration and the imperative to provide greater opportunities >>> to >>> >> PWD. Therefore, as detailed in the first part of our analysis, the >>> >> identification exercise under Section 32 is crucial. Once a post is >>> >> identified, it means that >>> >> a PWD is fully capable of >>> >> discharging the functions associated with the identified post. Once >>> found >>> >> to be so capable, reservation under Section 33 to an extent of not >>> less >>> >> than three per cent must follow. Once the post is identified, it must >>> be >>> >> reserved for PWD irrespective of the mode of recruitment adopted by >>> the >>> >> State for filling up of the said post. >>> >> >>> >> 25. In light of the preceding analysis, we declare the impugned >>> >> memoranda as illegal and inconsistent with the 1995 Act. We further >>> direct >>> >> the Government to extend three percent reservation to PWD in all >>> >> identified posts in Group A and Group B, irrespective of the mode of >>> >> filling up of such posts. This writ petition is accordingly allowed." >>> >> 10) After hearing learned counsel appearing on behalf of all the >>> >> parties including the learned Additional Solicitor General, we are of >>> the >>> >> view that the judgment of this Court cannot be faulted when it stated >>> that >>> >> Indra Sawhney dealt with a different problem and, therefore, cannot be >>> >> followed. >>> >> >>> >> 11) We may also note that >>> review >>> >> petitions were filed and >>> >> have since been dismissed >>> >> against both the 2013 and 2016 >>> >> judgments. Consequently, the reference stands answered by stating >>> that the >>> >> 2013 judgment as clarified in National Federation of the Blind vs. >>> Sanjay >>> >> Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 >>> and >>> >> the judgment in Rajeev Kumar Gupta & Others v. Union of India & >>> Others - >>> >> (2016) 13 SCC 153 case will bind the Union and the State Governments >>> and >>> >> must be strictly followed notwithstanding the Office Memorandum dated >>> >> 29.12.2005, in particular. Since the >>> >> reference has been disposed of by us today, >>> >> contempt petitions be listed for hearing. >>> >> Civil Appeal No. 1567 OF 2017: >>> >> 12) Application for impleadment >>> >> in C.A. 1567/2017 is >>> >> allowed. >>> >> 13) This matter arises out of the order of the Central >>> Administrative >>> >> Tribunal, Bangalore Bench, Bangalore dated 24.07.2015 in which the >>> 2005 >>> >> O.M has been followed without reference to any of the judgments of >>> this >>> >> Court. A writ petition from the aforesaid judgment was dismissed by >>> the >>> >> Karnataka High Court on 23.03.2016, stating that the precise >>> >> question of law that arises in this case was kept open. Accordingly, >>> we >>> >> set aside the judgment of the CAT and consequently that of the High >>> Court. >>> >> The case is to be governed by the three decisions of this Court >>> outlined >>> >> above, which judgments have to be followed by the Union of India and >>> the >>> >> States. It is not necessary to pass any further directions. The >>> appeal is >>> >> disposed of accordingly. >>> >> >>> >> Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of 2016: >>> >> 14) Delay is condoned. >>> >> 15) This matter stands dismissed in view of today's judgment. >>> >> >>> >> SLP (C) No. 11632 of 2017: >>> >> 16) Leave granted. >>> >> 17) The impugned judgment of the High Court dated >>> >> 22.06.2016 in this appeal, after referring to the judgment >>> >> of this Court in National Federation of the Blind vs. >>> >> Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 >>> >> (9) Scale 611 arrived at the following conclusion: >>> >> "8. The contention of the learned Attorney General was that except for >>> >> sub-section 2 of Section 47, there was no other provision under the >>> >> Disabilities Act dealing with the promotions and, therefore, on the >>> >> strength of sub-section 2 of Section 47 of the Disabilities Act, it >>> cannot >>> >> be contended that the Act provides for reservation in the matter of >>> >> promotion. In paragraphs 9 and 10 of the judgment and order dated 1st >>> >> September, >>> >> 2015, the Apex Court has dealt with issue of reservation in >>> promotion. In >>> >> paragraph 10 of the judgment and order dated 1st September, >>> >> 2015, the Apex Court has explained paragraph 51 of the earlier >>> judgment >>> >> and order dated 8th October, 2013 by observing that what is observed >>> in >>> >> paragraph 51 is about the manner of computation of vacancies in case >>> of >>> >> all the Groups viz. A, B, C and D posts. That is the reason why the >>> Apex >>> >> Court declined to initiate any action for contempt on the basis of >>> >> allegations that there is no provision made for the reservation of >>> persons >>> >> with disabilities in promotion. In terms the Apex Court observed that >>> what >>> >> is held in paragraph 51 of the judgment and order dated 8th October, >>> 2013 >>> >> cannot be construed to mean that there is a direction issued to >>> provide >>> >> for the reservation for the persons with disabilities even in the >>> >> promotional posts. >>> >> >>> >> 9. In view of the clarification issued by the Apex Court under the >>> order >>> >> dated 1st September, 2015 in Contempt Petition (Civil) No. 499 of >>> 2014, >>> >> now the directions contained in paragraph 13 of the judgment and order >>> >> dated 4th December, 2013 cannot be implemented insofar as the same >>> deal >>> >> with giving benefit of reservation to the persons with disabilities >>> in the >>> >> matter of promotion to the posts in the Indian Administrative Service >>> by >>> >> applying the Office Memorandum dated 29th December, 2005." >>> >> Consequently, the High Court held that no action can be initiated in >>> the >>> >> contempt petition on the ground that reservation had not been >>> provided in >>> >> the matter of promotion. We may hasten to add that this is not a >>> correct >>> >> reading of the law laid down by this Court. National Federation of the >>> >> Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, >>> 2015 (9) >>> >> Scale 611 was a judgment in a contempt petition in which the >>> contention >>> >> taken up by the petitioner was repelled by stating that para 51 of the >>> >> 2013 judgment has held that the manner of identification of posts of >>> all >>> >> groups must be uniform and nothing beyond. After the >>> >> declaration of the law in Rajeev Kumar Gupta & Others v. Union of >>> India & >>> >> Others - (2016) 13 SCC 153 it is now clear beyond doubt that the O.M. >>> of >>> >> 2005 cannot be given effect to when it is in the teeth of the 2016 >>> >> judgment. On the basis of this judgment, the impugned judgment is set >>> >> aside and the contempt petition is restored to the file. The petition >>> be >>> >> disposed of on merits.The appeal is disposed of accordingly. >>> >> >>> >> SLP (C) No. 21197 of 2017: >>> >> 18) Leave granted. >>> >> 19) In view of our judgment today, the appeal is dismissed. >>> >> >>> >> SLP (C) No. 4650 of 2019: >>> >> 20) Leave granted. >>> >> 21) Having heard learned senior counsel for the appellant >>> >> at some length, we may note that paragraph 4(C) of the >>> >> counter affidavit states as follows: >>> >> "(C) That Chhattisgarh State Power Holding Company Ltd. has appointed >>> a >>> >> committee for identification of the post upon which reservation in >>> >> promotion will be applicable. The said Committee in its meeting held >>> on >>> >> 10.01.2017 decided that the post of Executive Engineer, Mechanical and >>> >> Electrical in transmission, distribution and generation companies >>> where >>> >> the Executive Engineer has to visit sites and perform various acts >>> >> personally, it is not advisable to keep such post under reservation. >>> >> However, reservation will be applicable in promotion to the post of >>> >> Executive Engineer, Computer Science, Information & Technology and >>> Civil >>> >> Engineering. The said decision of the company has not been challenged >>> till >>> >> date and thus binding on all the employees as per the provisions of >>> Rights >>> >> of Persons with Disabilities Act, 2016. On this ground also the >>> Special >>> >> Leave Petition filed by the Petitioner is not maintainable." >>> >> 22) It is clear that the Internal Committee of respondent No. 2 has >>> >> applied its mind to the post of Executive Engineer, Mechanical and >>> >> Electrical, and has opined that in the said post, reservation for the >>> >> physically disabled will not be possible for the reason given therein. >>> >> 23) >>> >> Learned senior counsel appearing on behalf of the appellant >>> has >>> >> pointed out that as per the Gazette Notification dated 31.05.2001, it >>> is >>> >> an Expert Committee that has to identify, keeping in view the >>> provisions >>> >> of the Persons with Disabilities (Equal Opportunities, Protection of >>> >> Rights and Full Participation) Act, 1995, and Section 32 in >>> particular, >>> >> suitable posts for persons with >>> >> disabilities, and this has not been done in the present case. Since >>> this >>> >> point has not been argued in any of the cross appeals, we reserve >>> liberty >>> >> to the appellant to challenge the Internal Committee's findings on >>> grounds >>> >> available to them in law. Apart from this, the impugned judgment does >>> not >>> >> call for interference. The appeal is >>> >> disposed of accordingly. >>> >> 24) Needless to add if such a challenge succeeds, the three >>> judgments >>> >> pointed out by us in the Judgment in the lead matter, i.e., Civil >>> Appeal >>> >> No. 1567 of 2017 will have to be applied and followed. >>> >> >>> >> Civil Appeal No. 6092 of 2019: >>> >> 25) The appeal is dismissed in accordance with today's judgment. >>> >> Interim order dated 08.07.2019 stands vacated. >>> >> It has been contended before us that there are only 2 Group 'A' posts >>> >> available/identified as a result of which the reservation will have >>> to be >>> >> worked in accordance with the roster system. We may only clarify that >>> we >>> >> have not, in any manner, indicated as to how such system should be >>> worked. >>> >> >>> >> Civil Appeal No. 6095 of 2019: >>> >> >>> >> 26) The appeal is dismissed in view of today's judgment. >>> >> >>> >> ............................................................ J. >>> >> (ROHINTON FALI NARIMAN) >>> >> >>> >> J. >>> >> (ANIRUDDHA BOSE) >>> >> >>> >> J. >>> >> (V. RAMASUBRAMANIAN) >>> >> >>> >> New Delhi; >>> >> January 14-15, 2020. >>> >> >>> > >>> > >>> > >>> > Search for old postings at: >>> > http://www.mail-archive.com/accessindia@accessindia.org.in/ >>> > >>> > To unsubscribe send a message to >>> > accessindia-requ...@accessindia.org.in >>> > with the subject unsubscribe. >>> > >>> > To change your subscription to digest mode or make any other changes, >>> please >>> > visit the list home page at >>> > >>> http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in >>> > >>> > >>> > Disclaimer: >>> > 1. Contents of the mails, factual, or otherwise, reflect the thinking >>> of the >>> > person sending the mail and AI in no way relates itself to its >>> veracity; >>> > >>> > 2. AI cannot be held liable for any commission/omission based on the >>> mails >>> > sent through this mailing list.. >>> > >>> > >>> >>> >>> >>> >>> Search for old postings at: >>> http://www.mail-archive.com/accessindia@accessindia.org.in/ >>> >>> To unsubscribe send a message to >>> accessindia-requ...@accessindia.org.in >>> with the subject unsubscribe. >>> >>> To change your subscription to digest mode or make any other changes, >>> please visit the list home page at >>> http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in >>> >>> >>> Disclaimer: >>> 1. Contents of the mails, factual, or otherwise, reflect the thinking of >>> the person sending the mail and AI in no way relates itself to its veracity; >>> >>> 2. AI cannot be held liable for any commission/omission based on the >>> mails sent through this mailing list.. >>> >>> >> >> -- >> * ___* >> *C.Kasimani* M.A., M.L.I.S., M.Phil., Ph.D, PGDCA., NET., SET >> Librarian and Information Asst, >> Anna Centenary Library, >> Gandhimandabam Road, >> Kotturpuram, >> Chennai-600085. >> > > > -- > * ___* > *C.Kasimani* M.A., M.L.I.S., M.Phil., Ph.D, PGDCA., NET., SET > Librarian and Information Asst, > Anna Centenary Library, > Gandhimandabam Road, > Kotturpuram, > Chennai-600085. > -- * ___* *C.Kasimani* M.A., M.L.I.S., M.Phil., Ph.D, PGDCA., NET., SET Librarian and Information Asst, Anna Centenary Library, Gandhimandabam Road, Kotturpuram, Chennai-600085. Search for old postings at: http://www.mail-archive.com/accessindia@accessindia.org.in/ To unsubscribe send a message to accessindia-requ...@accessindia.org.in with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in Disclaimer: 1. Contents of the mails, factual, or otherwise, reflect the thinking of the person sending the mail and AI in no way relates itself to its veracity; 2. AI cannot be held liable for any commission/omission based on the mails sent through this mailing list..
