Thursday, April 27, 2017

Supreme Court of India asks compliance report of new RPwDAct 2016 in 12 weeks

Dear Colleagues,

Hon'ble Supreme Court of India has, in a major move to ensure speedy justice to persons with disabilities, has passed directions to implement the Rights of Persons with Disabilities Act 2016 enforced by the Govt. of  India on 19 April 2017. In an interlocutory application filed by the petitioner in Justice Sunanda Bhandare Foundation vs. Union of India and Another, reported as (2014) 14 SCC 383, and on the application filed by intervener "Sambhavana Organisation",  the bench of  Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar passed the directions to all the States and Union Territories to file compliance report within 12 weeks on the Act of 2016.

The Intervener, Sambhavana Organisation - a self help group of persons with disabilities had also filed an application citing examples of over seven Universities that were discriminating against persons with Blindness and Vision Impairments while filing up various teaching and non-teaching posts. The intervener also cited instances that UGC that funds these universities has not taken any action on implementation of the provisions of the Disabilities Act particularly the reservation in employment and successive employment notification systemically failed to give the rightful representation to the stakeholders with visual disabilities.

The bench observed, "The 2016 Act visualizes a sea change and conceives of actualization of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant."

The bench referred to certain provisions to highlight the salient features of the Act of 2016 and stressed that more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation. 

The Court directed, "When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made. The Bench directed the SC registry to send its order to chief secretaries of all states and directed them to take immediate steps to comply with its direction by 16 Aug 2017.

The Court directed that compliance report to be filed by the States shall be supplied to the learned counsel for the petitioner (Justice Sunanda Bhandare Foundation), learned counsel for the Union of India as well as to the learned counsel for the applicant/intervenor (Sambhavana Organisation) so that they can assist the Court.

A copy of the Order Dated 25 April 2017 in matter titled Justice Sunanda Bhandare Foundation vs. Union of India and Another can be accessed here.

78 comments:

  1. Nice direction..hopefully speedy compliance by all d concerned departments n state govts...Pratibha Bhatnagar

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  2. New PWD act has reservation in promotion or not ?

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  3. New Act has mentioned the words reservation in promotion. However it has been left to the states to make rules regarding it. For Centre, it should be governed by the Supreme court decisions. This matter has already been referred to a larger bench which is yet to hear it finally.

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  4. Sir,

    How many benches and how many hearings. What is ground for reappeal. Why govt should delay reservation, when supreme court already given decision.

    What harm is envisage in SC orders

    Totally at loss

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  5. Supreme Court bench has decided to give reservation promotion earlier but it not followed by central government. Why ?

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  6. Is case about reservation in promotion running now in supreme Court or not ?

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  7. But In a historic judgment in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others, the Hon'ble Supreme Court on 30 Jun 2016 has set aside / quashed the two office memorandums No.36035/16/91-Estt. (SCT) dated 18.02.1997 and No.36035/3/2004-Estt. (RES) dated 29.12.2005 issued by the Department of Personnel and Training, Government of India, terming them as illegal and inconsistent with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. And directed the Govt, of India for reservation in promotion for persons with disabilities in Groups A and B.

    Is it not a clear Order?? Then why The Supreme Court Order is not implemented till date??

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    1. Court contempt should be able to get the reservation in promotion.

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  8. When will larger bench sitting hope as earliest
    Thanks n regards

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  9. New PWD act is in favour of reservation in promotion or not ?

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  10. Are any reservation in promotion after rpdb in centre govt pls clearify

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  11. Are any reservation in promotion after rpdb

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  12. @ Sc Vasisht

    Sir, Can Govt appeal in still higher bench then the present one.

    Because govt seem to bent upon not giving the benifit to the PWD.

    I think SC has rejected the appeal three four times.

    Donot think it would end with this hearing, expert opinion please.


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  13. @ Sc Vasisht

    Sir, Can Govt appeal in still higher bench then the present one.

    Because govt seem to bent upon not giving the benifit to the PWD.

    I think SC has rejected the appeal three four times.

    Donot think it would end with this hearing, expert opinion please.

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  14. @Sanjay @SandeepGoyal - As I clarified, the matter has been referred to a larger bench which has not yet assembled. And that is why DoPT has not yet issued any Memo. The current case in question is a different one wherein the petitioner had petitioned for implementation of the PWD Act and now RPWD Act through applications. There is also an intervening application by Sambhavana Organisation seeking relief against UGC for not implementing the Act in various affiliated universities. Let us see, what various states say in their affidavits before the SC. Hon'ble Justice Dipak Misra is the second senior most Justice in the Supreme Court after the Chief Justice, therefore, the matter is being taken with its seriousness.

    As far as reservation in promotion for persons with disabilities is concerned, the State cannot take away an existing right in the name of implementation of UNCRPD. Therefore, the interpretation of the Hon'ble SC should be respected. Its only matter of time.

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  15. Sir, if any disciplinary authority punish to his disable subordinate on biasedness. Is there any legal option is available Rather than appeal in deptt.

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  16. This is delay or denying Government to implement Pwd's judgement. Upto now all governments are thinking disablly to implement PWD judgements. Let's wait n see like without disability. persons.

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  17. sir the dopt has passed a draft memorandum on 20th june 2017 wherein it clearly mentioned that no reservation for group A and B categories on promotion though the SC decision clearly direct that 3 % reservation for A
    and B on promotion.

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  18. Sir ji, there was a draft order No. No. 36035/02/2017-Estt (Res)20/06/2017 is placed at ccc.nic.in, circular portal, for suggestions,or opinions from general public, regarding Reservation for Persons with Benchmark Disabilities. But there, they keep provisions for reservation at promotion of physically disabled persons, but restricted the provision only at the post of Group C and D as they had done before. They clearly neglected and violated the Hon'able Supreme Court order, regarding reservation at promotion at Group A and B posts.

    What exactly are they planning to do?? Are they trying to stop the implementation of Supreme Court Order?? What to do in this situation??

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  19. @Sanjay, @Rokhala The draft order is due for revision in light of the new Act which recognizes new disabilities. Therefore, you all need to give your comments on the draft citing SC interpretation, new law and CRPD. The draft contains the old format about the reservation in promotion. However, soon this has to be implemented in light of the SC judgement. Though the new law seems to have weakened the reservation in promotion provision, however, it is certain that the govt. can't takeaway the interpretation of the earlier law in the name of implementing CRPD. So, I believe, it is only a matter of time. The mandate of law must be respected by one and all.

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  20. All person with disabilities candidates please send email to g.sreenivasan@nic.in,debabrata.d13@nic.in by mentioning Promotion reservation of person with disabilities to include in draft dopt 2017, which is coming in place of supreme Court squashed dopt2005.Draft dopt2017 is replaced 3% to 4% and d,e clauses type pwd candidates. But A,B,C,D groups promotion reservation of pwd was not included and kept as early dopt2005 of C,D groups only promotion reservation. So please send max pwd candidates ti the above mentioned emails immediately.

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  21. I have sent my comments to the DoPT as under :-
    Respected Sir,
    Most respectfully, it is to mention that I am a physically challenged citizen of India .Sir we have been battling for providing reservation in promotion for person with disabilities in all Groups of posts (A,B,C &D) since decades so as to have equal representation of every section of people at all levels of posts However when time came-up for implementation of Hon’ble Supreme Court’s order in WP(C) No 521/2008 in the case of Rajiv Kumar Gupta Vs UOI for providing reservation in promotion in Gr ‘A’ & Gr ‘B’ post for person with disabilities , the Govt has enacted the new law putting the issue of reservation in promotion for person with disabilities in silent mode .. Sir in case provision of reservation in promotion for person with disabilities in Group 'A' & 'B" is not clearly spelled-out, following implications may come-up in future :-
    (i) There is no direct recruitment element in Group ‘B’ posts of Assistant Personnel Officer , Assistant Accounts officer etc in Indian Railways and these posts are filled-up through departmental selections amongst suitable Group ‘C’ employees, if provision of reservation in promotion for PWDs is not clearly spelled-out in the rules ,some central Govt organization may deny reservation in promotion for PWDs in these posts consequently it is unlikely to fill-up four percent of total number of vacancies in the Group ‘B’ cadre where there is no element of direct recruitment thereby the representation of Person with Disabilities in these Group ‘B’ may be NIL/ZERO ,hence it may likely to infringe fundamental right of Equal Opportunities and Equal representation of PWDs guaranteed by the Indian Constitution & Act of 2016.
    (ii) The Hon’ble Supreme Court in the case of Rajiv Kumar Gupta Vs UOI, has clearly mentioned that 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 the PWD.The objective behind the Act is to integrate PWD into the society and to ensure their economic progress .The intent is to turn PWD into ‘agents of their own destiny’, hence ambiguous provision for reservation may defeat the vary purpose.
    Here it is pertinent to mention here that the country where we are residing is democratic republic and it is supposed to protect the rights of its disabled citizens without any discrimination .


    It is therefore requested to kindly do needful for providing provision for reservation in promotion for Person with disabilities in all identified Group ‘A’ & Group ‘B’posts also .Else we will have no option but to carry out huge demonstration before the Hon'ble PM's House and Parliament

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    1. Not only person with disable persons, but also send by general public of so many others, request them to fwd from their email.so max public support is required

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  22. We should urge the government to Implement it in any way either silently or by demonstration , because without this noting will happen. We should send letter or tweetvin social media to PM Modi

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  23. Dear Ramesh sir,
    Demonstration before the HPM house and Parliament is not good since we are less in number. It is better to wait for the report of new RPwD act. Only legal remedy will fetch us dignity, though it is painful to wait endlessly.

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  24. Are any reservation in group A and group B to be made for disabled. And any one given suggestion of the above said case

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  25. Pls say about rpwd in which reservation in promotion of group A and B not given then next step

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  26. Any update regarding reservation at Group "A" and "B" for physically challenged person, at RPWD Act??

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  27. Sir myself ramkuwar vishnoi
    application applied for assistant professor post in department of botany in 2 universities 1.jai narayan vyas university jodhpur 2.university of Rajasthan jaipur, 14 post(botany) in jnvu jodhpur and 24 post(botany) in university of Rajasthan, JNVU Jodhpur advertised total 111 post for assistant professor but single post not identified for PH Category in any department,maximum posts in department of botany other then departments, I was only one physical handicapped candidate appeared in interview for botany department, in final selection list 7 GEN, 5 OBC, 1 SC,1 ST, There is no seats for PH,
    I'm well qualified for this post according to UGC standard norm,NET (JRF)CSIR, GATE cleared B.sc.1st class,M.sc. above 55%, B.ed.1st class after this Rajasthan university identified 1 post for PH in advertisement, university released short listed candidate list on 21sept 2013 on university website and interview held on 7th,8th, 9th, 10th and 11 October 2013, university contacted me on mobile on 10th October 2013 and called me next day 11 Oct 2013 for interview, took my interview on 11 Oct and after interview gave me back dated 21sept 2013 interview call letter, here also I'm single one physically handicapped candidate appeared in interview for botany department, in final selection list university declared me non found suitable in PH Category and one seat reserved blank, I filed civil writ in Rajasthan highcourt was dismissed in July 2014 after this filed special appeal writ in double bench jodhpur was still pending today pls help me about this case

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  28. Sir
    Thanks for fighting for rights for disabled. It's a noble cause.

    Every one forgetting here for implementing where we will go, in courts only. There inhuman Unethical GREEDY advocates don't allow to get Justice by dragging on the issue for years n years. I m hankering for Justice from 26 years.

    It should be time bound Justice for disabled.
    No one speaks about this.

    Ths

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  29. Is there any progress in this case & what is hearing date of review case of Rajeev gupta

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  30. @Dharmendra kumar - The matter has been referred to a 5 judge bench of the Hon'ble Supreme Court of India recently. Lets wait for the judgement!

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  31. Expected time and kindly provide case number

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  32. Kindly provide case number and any update

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  33. Aligarh muslim university is violated the reservation criteria in the admission procedures almost in every courses this year. Is that violation came under the category of PIL?
    Please guide us

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  34. Whether is would done any time soon ( 5 judge bench hearings etc)

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  35. I think if Supreme court judgement can be thrown to dustbin by DOPT ( by non compliance of judgement for reservation in promotion ) , we are left with no option .
    BETTER TO UNITE ALL DISABLED AND THEIR FAMILIES AND JOINTLY CALL FOR BOYCOTT THE VOTING IN THE COMING 2019 ELECTION ..... As legally we won in more than five times in supreme court but all in vain .... Govt legislatively snatched our right by implementing disability bill 2016 . In the whole episode only disabled got squeezed in the name of court cases ......

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  36. @ SC Vasisth Sir, Any news on 5 judge bench hearing etc.

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  37. Or otherwise should we take stay for effecting promotion for others, until implementation reservation for physically challenged. Then govt. may think over for implementation.

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  38. Sir at what level the ( bench strenth of SC) the decision would be binding on CG. Or it can go even higher bench each time.

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  39. what is the biggest bench in Sc by way of numbers. can the cse go to still higher bench if the decision is against DOPT/CG.

    The the plantiff can go to higher bench if the case is in favour of gov

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  40. I support boycotting 2019 Election in case reservation in promotion in Gr 'A' and 'B' for PWDs is not implemented by the Govt

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  41. Also whether 5 Judge bench act in time bound manners or many years would be lost once again

    In this case justice delayed would be justice denied.

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  42. The hope is lost for us. Wish the gen-next gets it

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  43. @scvasishth:

    There are provision for fast track courts, if a rape case be heard on day to day basis, why cannot this case.

    Fail to understannd why there is no sense of urgency here, if the case had been regarding SC/ ST rights, story would have been different.

    Can Supreme court and CG not not disables, we talk of inclusion, what is reality

    Expert opinion please.

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  44. Friends, any update regarding our reservation at promotion?? Please share.

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  45. Sir please update on this news sir all the members have become silent. Ramesh Sir, Padmanaban Sir and Vashisht Sir please give updates if any you people are big source of inspiration to the entire community in the country please if any suggestions as to how to take this issue further and succeed we all need to step toward that. Sir kindly Share your emails I am available on ravi.sadula@gmail.com looking forward for your responses

    Regards

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  46. Hello any progress or any changes

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    1. Dear all, Is any one knows about New Office Memorandum published by MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS
      DEPARTMENT OF PERSONNEL & TRAINING
      North Block, New Delhi
      Dated the 15thJanuary, 2018.

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  47. Dear all,
    Is anybody knows about recent Memorandum published by MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS
    DEPARTMENT OF PERSONNEL & TRAINING
    Dated: 15th January, 2018.

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  48. Dear Vashisht Ji,
    Whether the new memorandum includes for promotion (Group A & B) published by Min of PERSONNEL, PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING Dated: 15th January 2018.

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  49. @Dinesh Sam - No, the Memo dt 15 Jan 18 is silent on reservation in promotion. However, the Act is not silent. Earlier the interpretation of the court brought the subject forward. This time the law itself is vocal but it provides the states to deal with it separately. Centre i believe will soon come out with a memorandum covering this subject as well. Similarly states also have to bring it. But I believe both are looking towards how the matter would be addressed by the Hon'ble Supreme Court of India. So they don't look like in hurry to get the memo at this point in time. There is no denying the fact that with this delay, most promotional avenues for persons with disabilities have been put on hold by many organisations which is a worry-some trend!

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    1. Dear Vashisht Ji & Other friends,
      Is any know when the aforementioned disability case is coming for honorable S.C 5 judges bench hearing. Please reply.

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  50. respected Sir,
    I just want to know that the larger bench comprising 5 judges name of those judges declare by chief justice sri Mishra sir or not. if not then when he will do that for our petition please.

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  51. Dear Vashisht Ji & Others,
    Is anyone knows when disability case for promotion is coming for hearing of supreme court 5 judge constitution for hearing. Please confirm.

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  52. Vashisht Ji,
    In our organisation (OFB under MOD) recently 2016-17 & 2017-18 vacancies DPC conducted for 1500 Group B Gazetted posts(JWM) & promotion also given from Group B Non Gazetted. However, not even single PWD quota operated. There could be minimum 45 vacancies PWD, if we get reservation for promotion to group A & B. At the same time rest all reservation followed more than the limit for safer side as case was with judiciary for final judgement.

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  53. @DineshSam - DPCs conducted for promotion should consider candidates with disabilities like their similarly placed non-disabled counterparts. The departments can not discriminate against people with disabilities in promotion merely because the reservation in promotion for PH is under consideration before the Hon'ble Supreme Court. Do you meanb that departments are ignoring candidature of employees with disabilities in the zone of consideration on their own seniority and merit?

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  54. Thanks Vashisht Sir,
    No Ji, PWD quota not operated. However few disable persons have also got promotion on their own merit against general vacancies as the JWM(T&NT) posts are Identified post.

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  55. Dear Vashisht Ji,
    My reply for above, has not posted so far, hence I I confirm once again that, as the JWM posts are being a identified, few PWD people also got promotion as per their own open service (general) seniority.
    Further, no PWD case (521/2008 or 107/2011) apears to be pending before SC or forwarded any bench. Is it so, can you tell me case No. or when probably it will come to 5 judges bench hearing please.

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  56. Dear Vashisht Ji,
    Any updates regarding reservation for promotion to group A & B. I think those who are going for contempt petition may get their promotion.

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  57. When the matter will come before honourable court for hearing

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  58. Dear Vashisht Ji,
    Any progress, and can you intimate the current status of the disability promotion to Group A & B case.
    Regards.
    Thanks for replying.
    Dinesh Sam

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  59. Sir kindly let us know the status of the case of Reservations in Promotions for all of us. what is the current position? any efforts made to get it on bench for hearing? any support required from the members please let us know. at present we all are in dark.

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  60. Sir kya SC/st ki trah hi disabled persons ka case nhi ho sakta pls explain the date of hearing

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  61. Sir any updates regarding reservation in promotion

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  62. Subhash Sirg,
    The Honourable SC allowed reservation in promotion for SC/ ST TILL THE JUDGEMENT COMES.
    iS IT NOT APPLICABLE FOR PWD?

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  63. Sri vashish her
    Pranaam
    On 2nd October honourable chief justice of India will retire and we all are in hope that he will verdict in favour of us. becz not only ofb but also other org discrimination are being made for us. Sir you are our first and last hope for we get reservation in promotion in all groups basically grow A &B.
    Profound regards

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  64. Sir I am to group B gazetted Officer under MoD working as Jr. Works Manager in OFC KANPUR .it universal truth my friend blog before me face same like me.even after passing law more than one year of RPwD even after no greivance Redressal officers are being posted. Even I was not given sitting job after I myself lodged complaint against discrimination in cpgram.

    Regards Sapan kumar
    JWM

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  65. Sir is there any update regarding reservations in promotions to Group B cadres. Kindly let me know status of case

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  66. Dear Vashiahta sir what is present position of reservation in promotion for disabled?

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  67. Though Hon Supreme Court had ordered all States and UT to comply with 4pc reservation in appointments many States including Kerala have not adopted till date.So also some GOI Institutions have not even cared to give posting to any differently abled though there are differently abled who represented.The attitude of these Institutions is to avoid posting of Differently abled for 2years and there after fill using UR candidates simply saying that no differently abled candidates are available.This deliberate action is only to deprived the Constitutional Fundamental rights of Differently abled.This sort of action should be curtailed to protect the Rights of all persons with disabilities included in A -E of 4pc Reservation in Employment as in RPWD Act2016 and Rules and Instructions issued there in.The Reservation in Promotions should be adopted.The facts regarding this should be brought to the notice of all concerned.Please respond.

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  68. The Solicitor General had pointed out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney & Others vs Union of India & Others – (1992) case applies not only to Article 16(4) but also to 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,” he said.
    Any news of when this larger bench held ????? and when we gor our due???

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  69. Dear Sir,

    Any updates. Keenly waiting for the any positive outcome.
    lets do something

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  70. Respected bashitha jee
    When will be
    Constitution bench sit to see reservations in promotion basically for Grp A &Grp B.if you have any information please reply.
    Regard
    Sapan kumar
    Grp B officer in OFB under MoD

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  71. Shashidhara GR. I am deaf and dumb for lost both of 100 percentage. My response want dismissed petitioner court case HMO 22/2019 because my hearing impaired suffering look after two children's in Bangalore Request dismissed petitioner by judge court decide. Please send my email id hitharunrajigs@gmail.com

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  72. Sir any update on the reservation in promotion case? please update. everyone has become dormant

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