Yes, after DoPT issues necessary Office memorandum and Ministry of finance forwards it for compliance.
सादर / With thanks & Regards राजेश आसुदानी Rajesh Asudani सहायक महाप्रबन्धक AGM बाजार आसूचना ईकाई MIU भारतीय रिजर्व बैंक Reserve Bank of India नागपुर Nagpur 0712 2806846 President VIBEWA Co-Moderator VIB-India President DARE-Disability Advocacy, Research and Education A-pilll = Action coupled with Positivity, Interest, Love, Logic and laughter -----Original Message----- From: AccessIndia [mailto:accessindia-boun...@accessindia.org.in] On Behalf Of ???? ?????? Akash Gupta Sent: 23 January 2020 20:00 To: AccessIndia: a list for discussing accessibility and issues concerning the disabled. Subject: Re: [AI] Fwd: Judgment on reservation in promotion 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.noclick_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.noclick_com/accessin...@accessindia.or >>>>>>> > g.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.noclick_in/mailman/listinfo/accessindia_a >>>>>>> ccessindia.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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