Dear Ma'am, What is the difference between reservation in cadre as against the identified posts in a total cadre?
Does it mean, propotionate reservation in cadre A, B, C etc. and in identified posts means what? On 3/12/14, Kanchan Pamnani <kanchanpamn...@gmail.com> wrote: > I have copied this judgement in this email because it may be useful for some > of you. Kanchan > > Order dated 4th December 2013 > > > > IN THE HIGH COURT OF JUDICATURE AT BOMBAY > > ORDINARY ORIGINAL CIVIL JURISDICTION > > PUBLIC INTEREST LITIGATION NO.106 OF 2010 > > ... > > National Confederation for Development > > of Disabled and another ...Petitioners > > v/s. > > Union of India and ors. ...Respondents > > ... > > Mr.Mahesh Jethmalani, Sr.Counsel with Mr.Kamlesh Ghumre and > > Ms.Gunjan Mangla i/b Mr.Rohit Mahadik for petitioners. > > Mr.Rajeev Chavan with Mr.H.V.Mehta for the respondentUoI. > > Mr.G.W.Mattos, AGP for State. > > ... > > CORAM: MOHIT S. SHAH, C.J. & > > M.S.SANKLECHA, J. > > DATE : 4 December 2013 > > P.C.: > > By consent of parties, petition is taken up for final hearing. > > > > 2. In this public interest petition, the petitioners National Confederation > for Development of Disabled have prayed for writ of mandamus to direct the > respondents to appoint the disabled persons in terms of Section 33 of the > Persons with Disabilities (Equal Opportunities, Protection of Rights and > Full Participation) Act, 1995 (PWD Act) in Indian Administrative Services > posts to be filled up either by promotion from the State Civil Services or > by selection from persons who hold gazetted posts in connection with the > affairs of a state but are not members of the State Civil Services, as per > their entitlement retrospectively from 1996 and to comply with the said > provisions hereafter. > > > > 3. This petition was filed on 8 December 2010. > > > > 4. In the affidavit in reply filed by Under Secretary in the Union Public > Service Commission on 1 March 2011 and in the affidavit in reply dated 20 > April 2012 filed by Under Secretary in the Department of Personnel and > Training, Government of India, it was contended that provisions of Section > 33 of PWD Act provides for reservation for the persons with disabilities > only in the matter of appointment to the vacancies in the establishment. It > does not provide for reservation in the matter of promotion. It was further > contended that such reservation is applicable for persons with disabilities > in Group "C" and Group "D" as provided in the Office Memorandum dated 20 > November 1989 and in the subsequent Office Memorandum dated 29 December 2005 > it is provided that 3% of the vacancies in case of promotion to Group "C" > and Group "D" posts in which the element of direct recruitment, if any, does > not exceed 75%, shall be reserved for persons with disabilities. It is, > therefore, submitted that reservations for persons with disabilities were > never available in Group "A" and Group "B" posts. It is further contended > that the whole scheme of the cadre management of officers appointed by > promotion to the promotion quota of an All India Service is quite different > in nature from the scheme of things as are generally prevailing in the > matter of promotion within the same service from a Group "B"/Group "A" post > to a Group "A" posts. > > > > 5. In any view of the matter, nothing is brought to our notice indicating > that posts in the Indian Administrative Services are excluded from > reservation for persons with disabilities. In fact, in Government of India > v/s. Ravi Prakash Gupta and anr. (2010) 7 SCC 626, the Supreme Court > specifically dealt with the question of reservation in the matter of > appointment to All India Service and held that reservation was applicable to > posts in Groups "A", "B", "C" & "D". The Supreme Court confirmed the > decision of the High Court and issued mandamus to the Central Government to > offer the writ petitioner appointment to one of the reserved posts by > issuing appropriate appointment order in the Indian Administrative > Services. > > > > 6. In the said decision the Supreme Court also noted in paras 20 and 26 that > neither Section 32 nor Section 33 of the PWD Act make any distinction with > regard to Groups A, B, C and D posts. It was further noted that proviso to > Section 33 does empower the appropriate Government to exempt any > establishment from the provisions of the said section, having regard to the > type of work carried out in any department or establishment. No such > exemption was brought to the notice of the Supreme Court on behalf of the > Government of India. Nor has any such exemption been brought to our notice. > > > > 7. In view of the above, we have to proceed on the basis that the > reservation is available for Group A and Group B posts as well and the same > would, therefore, include posts in the Indian Administrative Services. > > > > 8. Learned counsel for the Government of India, however, submits that the > above decision would not necessarily mean that the posts to be filled by > promotion are also available for reservation. Learned counsel submits that > the case of Ravi Gupta (supra) was concerned with direct recruitment to the > Indian Administrative Services and not with regard to promotion. > > > > 9. Learned counsel for the petitioners has, thereupon, invited our attention > to the recent judgment of three Judge Bench of the Supreme Court in Union of > India v/s. National Federation of the Blind & ors., dated 8 October 2013. > > > > 10. In the said decision, three Judge Bench of the Supreme Court has in > terms held that Section 33 of the Act establishes vividly the intention of > the legislature viz., reservation of 3% for differently abled persons has to > be computed on the basis of total vacancies in the strength of a cadre and > not just on the basis of the vacancies available in the identified posts. > The Supreme Court analyzed the provisions of Section 33 of the Act and > arrived at the following conclusion: > > "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 December 2005, which are > contrary to the above reasoning are struck down and we direct the > appropriate Government to issue new Office Memorandum(s) in consistent with > the decision rendered by this Court." > > (emphasis supplied) > > > > 11. In view of the aforesaid decision of the Supreme Court, it is clear that > reservation has to be computed with reference to total number of vacancies > in the cadre strength and, therefore, no distinction can be made between the > posts to be filled in by direct recruitment and by promotion. Total number > of vacancies in the cadre strength would include the vacancies to be filled > in by nomination and vacancies to be filled in by promotion. > > > > 12. The Supreme Court has given following directions to the Government of > India to ensure proper implementation of the reservation policy for the > disabled and to protect their rights:"54. In our opinion, in order to ensure > proper implementation of the reservation policy for the disabled and to > protect their rights, it is necessary to issue the following directions: > > (i) We hereby direct the appellant herein to issue an appropriate order > modifying the OM dated 29122005 and the subsequent Oms consistent with this > Court's Order within three > > months from the date of passing of this judgment. > > (ii) We hereby direct the "appropriate Government" to compute the number of > vacancies available in all the "establishments" and further identify the > posts for disabled persons within a period of three months from today and > implement the same without default. > > (iii) The appellant herein shall issue instructions to all the > departments/public sector undertakings/Government companies declaring that > the non observance of the scheme of reservation for persons with > disabilities should be considered as an act of nobedience and Nodal Officer > in department/public sector undertakings/Government companies, responsible > for the proper strict implementation of reservation for person with > disabilities, be departmentally proceeded against for the default." > > > > 13. In view of the above directions, it is clear that the respondents will > have to give benefits of reservation to persons with disabilities in the > matter of promotion to posts in the Indian Administrative Services by > applying the Office Memorandum dated 29 December 2005 and subsequent Office > Memorandum consistent with the aforesaid judgment dated 8 October 2013 of > the Supreme Court and accordingly give benefits of the reservation with > effect from the date of issuance of the said Office Memorandum dated 29 > December 2005. > > > > 14. Writ petition is, accordingly allowed in the aforesaid terms. > > > > CHIEF JUSTICE > > (M.S.SANKLECHA, J.) > > > > Register at the dedicated AccessIndia list for discussing accessibility of > mobile phones / Tabs on: > http://mail.accessindia.org.in/mailman/listinfo/mobile.accessindia_accessindia.org.in > > > Search for old postings at: > http://www.mail-archive.com/accessindia@accessindia.org.in/ > > To unsubscribe send a message to > accessindia-requ...@accessindia.org.in > with the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, please > visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > > > Disclaimer: > 1. Contents of the mails, factual, or otherwise, reflect the thinking of the > person sending the mail and AI in no way relates itself to its veracity; > > 2. 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