Did govt of india asked for any review petition or went for any appeal on the judgement?
thanks and regards, sazid On 1/24/20, Rajesh Hardayaldas Asudani <rajeshasud...@rbi.org.in> wrote: > 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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