Dear Harish, I feel the reservation in promotion in favour of SC and ST etc and reservation in favour of persons with disabilities are two completely different matters. The SC in recent judgement in Siddaraju Vs. State of Karnataka & Ors has amply clarified this difference and how the limitation set by Indira Sawhney judgement doesn't apply to promotion in reservation for people with disabilities. SC had indicated in the order “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.”
Therefore, a preferential treatment on the basis of disability duly supported by the Disability laws is valid and can not be equated with preferential treatment on the basis of caste or religion. But sadly the bureaucracy had with its understanding of Art 16 and selective interpretation of Indira Sawhney judgement, changed the language about reservation in promotion in the RPwD Act 2016 and left it to the States to take a call on the reservation. I feel the essence of UNCRPD, which is sought to be implemented through the new RPwD Act is ignored when an existing relief or better provision is taken away in the name of CRPD implementation. Article 4(4) o CRPD specifically provides as under: "4. Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present." Thus the new RPwD Act provisions can not take away the right to reservation in promotion that existed in the PWD Act 1995 in the garb of implementing CRPD. This must be continued in favour of the people with disabilities as it existed to be in compliance with article 4(4) of the convention as above. Hope this clears the air. regards Subhash Chandra Vashishth Advocate On Mon, 10 Feb 2020 at 10:44, Harish Kumar P Kotian <hpkot...@rbi.org.in> wrote: > Hi > I understand, there is a catch here. As per this judgement, the state > government has to notify reservation in promotion. It could also hold good > for us and I don't think any state government will not bother to do it for > us as we are not a vote bank. > > Legal experts may throw more light and their opinion. > Harish. > > -----Original Message----- > From: AccessIndia [mailto:accessindia-boun...@accessindia.org.in] On > Behalf Of Vikas Kapoor > Sent: 08 February 2020 22:20 > To: AccessIndia: a list for discussing accessibility and issuesconcerning > the disabled. > Subject: [AI] No fundamental right to claim reservation, State not bound > to provide reservation in promotion: SC > > No fundamental right to claim reservation, State not bound to provide > reservation in promotion: SC New Delhi, list of 2 items Feb 07 2020, > 19:11pm ist > updated: Feb 07 2020, 21:09pm ist > list end > Reuters file photo > Reuters file photo > Highlights: Article 16 (4) and (4-A) (reservation in promotion) is clear > which mean inadequacy of representation is a matter within subjective > satisfaction of State State can form its own opinion on the basis of > material through a Commission or Committee, person or authority The data to > be collected is only to justify reservation in appointment or promotion to > public posts Data collection on inadequate representation of SC/STs is a > pre requisite and is not required when the state government decided not to > provide reservations > > In a significant judgement, the Supreme Court on Friday said an individual > cannot claim reservation as a fundamental right and the government is not > bound to provide quota in promotion for the Scheduled Caste and Scheduled > Tribe employees in public jobs. > > A bench of Justices L Nageswara Rao and Hemant Gupta said Articles 16 > (4) and 16 (4-A) of the Constitution empowered the State to make > reservation in matters of appointment and promotion in favour of the > Scheduled Castes and Scheduled Tribes “if in its opinion, they are not > adequately represented in the services”. > > The top court said it was for the state government to decide whether > reservations were required in the matter of appointment and promotions to > public posts. > > “In view of the law laid down by this court, there is no doubt that the > state government is not bound to make reservations. There is no fundamental > right which inheres in an individual to claim reservation in promotions. No > mandamus can be issued by the court directing the state government to > provide reservations,” > the bench held. > > The top court relied upon the Constitution bench judgements in Indra > Sawhney (1992), M Nagaraj (2006) and Jarnail Singh (2018) and Suresh Chand > Gautam > (2016) cases, among others, to set aside the Uttarakhand HC's directions > issued on July 15, 2019 to the state government to implement reservations > in promotion. > > The HC's direction for filling up all future vacancies in post of > Assistant Engineers in PWD from the members of SC/STs was “wholly > unjustifiable”, it said. > > The bench found the HC's direction to collect quantifiable data was > “wholly unnecessary”, since the state government took a conscious decision > not to provide reservation in promotions. > > The court said since the State was not bound to provide reservations in > promotions, it was not required to justify its decision on the basis of > quantifiable data, showing adequate representation of members of the > Scheduled Castes and Schedules Tribes in its services. > > “Even if the under-representation of Scheduled Castes and Schedules Tribes > in public services is brought to the notice of this court, no mandamus can > be issued to the state government to provide reservation,” it said. > > > https://www.deccanherald.noclick_com/national/sedition-charges-being-distributed-freely-like-prasad-says-kanhaiya-kumar-802661.html > > -- > Vikas Kapoor, > > > > > Search for old postings at: > http://www.mail-archive.noclick_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.noclick_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.. > > > ________________________________ > > Caution: The Reserve Bank of India never sends mails, SMSs or makes calls > asking for personal information such as your bank account details, > passwords, etc. It never keeps or offers funds to anyone. Please do not > respond in any manner to such offers, however official or attractive they > may look. > > > Notice: This email and any files transmitted with it are confidential and > intended solely for the use of the individual or entity to whom they are > addressed. If you are not the intended recipient, any dissemination, use, > review, distribution, printing or copying of the information contained in > this e-mail message and/or attachments to it are strictly prohibited. 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AI cannot be held liable for any commission/omission based on the mails > sent through this mailing list.. > > -- Warm regards, Subhash Chandra Vashishth Mobile: +91 (11) 9811125521 Please don't print this e-mail unless you really need to. Consider environment! 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..
