Showing posts with label 3% reservation for disabled. Show all posts
Showing posts with label 3% reservation for disabled. Show all posts

Thursday, August 27, 2020

Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities [Judgement Included]

Dear Colleagues,

This judgement by a single bench of Kerala High Court at Ernakulam Bench sets a long pending issue to rest whether private aided education institutions come under the term "establishment" and are bound to follow the mandate of reservation of jobs. There were several writ petitions tagged to the present case with similar prayers. Many educational institutions seeking protection of 'minority' institution have been defying the law of the land regarding reservation in jobs for persons with disabilities despite being funded by the State claiming that they don't need to reserve or fill up seats by persons with disabilities as they are not 'state'. 

Petition was finally heard on 22 July 2020 and judgement delivered on 26 Aug 2020. The lead case has been WP(C).No.4753 OF 2020(T) Renjith J.V. Vs. State of Kerala and Others. Other petitions tagged were all from the year 2019 i.e. WP(C).224/2019(C), WP(C).1806/2019(A), WP(C).2800/2019(Y).  

The Rights of Persons with Disabilities Act 2016 only supplements and enhances the earlier reservation of 3% to now 4% and must be implemented in right earnest. There is a need to raise awareness, break the stereotypes and ensure that the private institutions are made aware of their legal responsibilities before they are sanctioned the government aids and grants.

Read the Judgement embedded below or Download Judgement. WP(C).No.4753 OF 2020(T) 


Wednesday, January 15, 2020

SC once again reaffirms reservation in promotion for persons with disabilities in Siddaraju Vs. Govt. of Karnataka case [Judgement Included]

Dear Colleagues

Please refer to my following earlier posts on various attempts of the Union of India to deny reservation in promotion for persons with disabilities citing Indra Sawhney Judgement,

(a) Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A, B, C and D alike [01 Jul 2016]
(b) SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion [03 Mar 2015]
(c) SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well [10 Oct 2014]
(d) Physically Challenged Versus Logically Challenged [10 Dec 2013]

On 14 Jan 2020, a three judge Bench of Hon'ble Justice Rohinton Fali Nariman, Hon'ble Justice Aniruddha Bose and Hon'ble Justice V. Ramasubramanian while hearing Civil Appeal  No. 1567 OF 2017 titled Siddaraju Vs. State of Karnataka and Ors and batch of connected matters, once again reiterated its earlier stand on reservation in promotion for persons with disabilities allowing reservation in promotion for persons with disabilities in all the groups alike vis. Gp A, B, C or D.

A two judge bench of the SC had earlier clarified the same issue in matter titled Rajeev Gupta Vs. Union of India decided on 30 Jun 2016 had held that the bar against reservation in promotion in the Indra Sawhney judgment did not apply to persons with disabilities. The Court had then held that wherever posts are identified as suitable for persons with disabilities, 3% reservation must be given in direct recruitment as well as in promotion for employees with disabilities in Group A and B as it is given in Group C and D. The Govt. of India decided to however,  challenged it once again when the matter was referred to the present three judge bench to decide the question whether persons with disabilities were entitled to being granted reservation in promotion in view of the bar against reservation in promotion in the Indra Sawhney judgment along with batch of connected matters.

The lead case this time was Siddaraju vs The State Of Karnataka. In the instant case,  a disabled employee of the Karnataka Government approached the Karnataka High Court, seeking the benefit of reservation in promotion. The High Court dismissed his case in March 2016, before the SC judgment in Rajeev Kumar Gupta’s case was pronounced. Siddaraju appealed before the Supreme Court, and on 05 Jan 2017, a two judge bench presided over by Justice Adarsh Kumar Goel referred the matter to a larger (i.e. three judge) bench. Justice Goel’s bench felt that the Government’s contention that reservation in promotion was constitutionally impermissible, according to the 1992 SC judgment in Indra Sawhney’s case, deserved further consideration.

The three judge bench has once again reiterated its stand that Indra Sawhney judgement only applied to reservations under Art 16(4) of Constitution of India in favour of backward classes being a vertical reservation. The reservation in favour of persons with disabilities was covered under Article 16(1) and was a horizontal reservation and did not affect the total 50% ceiling of reservation.

Below is the judgement delivered on 14-15 Jan 2020 in the lead case Siddaraju vs The State Of Karnataka:

Hon'ble Supreme Court of India
Siddaraju vs The State Of Karnataka on 14-15 January, 2020
Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, Aniruddha Bose, V. Ramasubramanian

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.

Wednesday, December 28, 2016

RPWD Bill 2016 & the Right to Reservation in Promotion for Employees with Disabilities

Dear Colleagues,

Please refer to my earlier post dated July 1, 2016 titled 'Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C and D alike'. Subsequently on 15th Dec 2016, the Hon'ble Supreme Court rejected the Review Petition filed by the DoPT against the judgement thereby making the its said judgement final.


Meanwhile, the Rights of Persons with Disabilities Bill 2016 has been passed by the Rajya Sabha (14 Dec 2016) and the Lok Sabha (16 Dec 2016) with over 119 amendment in the 2014 bill. Let me come straight to the concerned section dealing with the employment. I reproduce the concerned sections from 1995 Act and 2016 Bill below which clarifies things:


Extracts from PWD Act of 1995


32. 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. 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 be reserved for persons suffering from-

(i) Blindness or low vision;
(ii) Bearing impairment;
(iii) Loco motor 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.'

Extract from RPWD Bill 2016



'33. The appropriate Government shall—
(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;
(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and
(iii) undertake periodic review of the identified posts at an interval not exceeding three years

34. (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—

(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability and mental illness;
(e) multiple disabilities from amongst persons under clauses (a) to (d) including 35 deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.'

The problem areas

The interpretation of this section 33 of the Act of 1995 meant that reservation in promotion was available to employees with disabilities in all groups i.e. ABC& D as held by Hon’ble Supreme Court on 09 Oct 2013 in 'Union of India Vs. National Federation of Blind' wherein court directed Govt. of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts as was being done for Gp C & D earlier. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act 1995, provided for reservation in promotion for persons with disabilities in Groups A and B also. Again in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others court held that reservation in promotion has to be given in Gp A & B posts under section 33. 

Despite clear writing on the wall on the issue of reservation in promotion for persons with disabilities after the Supreme Court's clarification, the bill negates the judgement. It relegates the right to reservation in promotion to a provisio  where it is left with the appropriate governments to issue instructions from time to time! I would say this bill takes away reservation in promotion from the PwDs in a clandestine manner and leaves this to the mercy of the states who have never been serious about implementing the benevolent legislation.


A National Consultation on the RPWD Bill on 29-30 Dec 2016 in Delhi

The above is one example, there are host of others that we find are negating the rights of persons with disabilities and also these are not in conformity with the UNCRPD to which this Bill claims to align with. Lawyers, activists, persons with disabilities will put their mind to the Bill and analyse where its goes wrong and how can this be corrected to ensure that rights of persons with disabilities are not taken away under the garb of legislation. We invite you to this consultation that starts tomorrow. For more details please visit the page 'Invitation for National Consultation on RPWD Bill 2016 on 29-30 Dec 2016 at New Delhi'  


Will look forward to meeting and interacting with many of you tomorrow & day after.


Thursday, August 4, 2016

Are meritorious candidates with disabilities pushed into disability quota against the spirit of Section 33?

Dear Colleagues,

The govt. departments, who should be complying with the provisions of the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act 1995 have been flouting these very provisions under different garbs. This is not a new phenomenon. I remember in April 2005, I had challenged on behalf of All India Confederation of the Blind an advertisement of Govt. of NCT of Delhi and UPSC for filling up 90 posts of Principals without giving 3% reservation for persons with disabilities. In the counter filed by the Delhi Govt. it was suggested that they will adjust all persons with disabilities against reserved quota even if they cleared on their own merit. The Hon'ble Court presided by Justice S. Ravindra Bhat then had given a categorical judgement saying this could not be allowed and issued rule. The Delhi Govt. even went in appeal through LPA No.2042, 2043 and 2044/2005, however, on 21 Dec 2005 vide a common judgement, the double bench headed by the Hon'ble Chief Justice and Justice Madam B Lokur dismissed the said appeals upholding that Article 46 of the Constitution provides that the State shall promote the interests of weaker sections and weaker section would include not just SCs and STs but also persons with disabilities. The court had dismissed the LPAs with directions that a candidate with disabilities who has qualified in the selection and whose merit is so high that if he were a general category candidate he would still have been selected, then his appointment will not be made against the quota of persons with disabilities. Such a candidate would be treated as if in the general category and the reserved seats of the disabled category will be calculated excluding him or be filled up accordingly.

In fact, this fact has been repeatedly held by the Hon'ble Supreme Court that concessions to help / enable a candidate appear in examinations cannot be termed as “reservation benefits“ if she/he qualifies on merit. [PGI Medical Education and Research V. K.L. Narasimham, (1997) 6 SCC 283]

The trend of subverting the laws against the marginalized section continues to be pushed by many employing departments rendering the minimum reservations as maximum reservations. As simple as age relaxations, fee relaxations, lower threshold of qualifying marks and additionally in case of disabled candidates - using a scribe or availing compensatory time during examination is being used as the basis to classify them as "reserved candidates". Using a scribe or compensatory time or fee/ age /qualifying marks relaxation can at best be considered as enabling provisions. These provisions can not be used to push them in to the "reservation quota" thereby defeating the original intent of such beneficial legislation.

The National Commission for SCs is examining this issue and has issued notice to UPSC, DoPT etc. on receipt of complaints from the stakeholders. The Commissioner for Persons with Disabilities on the other hand, has not taken any suo moto notice of several such cases happening right under their nose. This is an alarming situation where the statutory bodies are lagging behind in restoring justice to the most marginalized and have failed to protect their rights and equal participation in the spirit of the Persons with Disabilities Act 1995.

Friday, July 1, 2016

Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A,B,C & D alike [Judgement Included]

Dear Colleagues,

Please refer to my earlier posts dated 02 March 15 and  10 Oct 14, on the subject. 

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.

In the instant case the petitioners, Rajeev Kumar Gupta and seven other persons with disabilities serving as engineers in Prasar Bharti made the grievance that the higher level posts in the engineering cadre were filled mostly by promotion. Although these posts were suitable for persons with disabilities, the Government was denying them 3% reservation in these posts, which amounted to defeating the intent and purpose of reservation provided for in the Persons with Disabilities (equal opportunities, protection of rights and full participation) Act, 1995. At the heart of the problem were the DoPT instructions dated 18.2.97 and 29.12.2005, which prohibited reservation in promotion for disabled persons in Group A and B posts. 

Petitioners had argued that a large number of Groups A and B were filled only through promotion and because of the impugned DoPT memorandums, the benefit of reservation under Section 33 of the 1995 Act was denied with respect to those posts. Petitioners therefore lost out on a significant amount of opportunities at the upper end of the organizational hierarchy.

The government opposed concession to the disabled, contending that they have no right to demand reservation in promotion to identified Group A and Group B posts. It also cited the nine-judge bench ruling by the apex court in the Indra Sawhney (Mandal reservation) case, to maintain reservation should be confined to recruitment at the initial level, and not at the stage of promotions.

It may be pertinent to mention that in the Indra Sawhney case while dealing with caste based reservation issue, the Bench had held "Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it."

But the bench dismissed the government’s arguments, noting that once the posts for the disabled have been identified under Section 32 of the Act, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation.

“It would be a device to defraud persons with disabilities of the statutory benefit. Once a post is identified, it means that a person with disability 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 3 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,” it held.

The bench further said that Indra Sawhney’s case shall not impose a bar on reservation for the disabled, since the principle laid down in this case is applicable only when the State seeks to give preferential treatment in the matter of employment to the backward class.

“The basis for providing reservation for persons with disabilities is physical disability and not any of the criteria forbidden under Article 16(1) such as caste, religion etc. The objective behind the 1995 Act is to integrate those living with disabilities into the society and to ensure their economic progress… persons with disabilities are not and cannot be equated with backward classes contemplated under Article 16(4),” it said. Article 16 of the Constitution empowers the state to prescribe preferential treatment to certain classes in matters of public employment.

The judgement is historic and a major milestone in the fight for restoring the rights of persons with disabilities in India. 

The argument in this case were concluded on 17.03.2016  and the bench had reserved the judgement.

The case, represents success in a hard fought battle waged by persons with disabilities for equal opportunity and representation in the higher echelons of Government. Hitherto, disabled persons were likely to stagnate at the lower levels of the organizational hierarchy, as their promotion to higher level posts was made difficult because of their physical disadvantage. 


Brief Background of related matters

It may be pertinent to mention that the Hon'ble Supreme Court  had on 08 Oct 2013 in the case titled Union of India vs. National Federation of the Blind delivered a land mark judgment directing the Govt, of India and State Governments to compute 3% reservation for persons with disabilities in all groups of posts against the total number of vacancies in the cadre strength. The Hon'ble Court also laid down that the computation had to be done in an identical manner in respect of all groups of posts. Subsequently, the Hon'ble Supreme Court vide its judgement dated 10 Dec 2013 in a case titled as MCD Vs. Manoj Kumar Gupta upheld a judgment of Hon'ble Delhi High court which declared that Section 33 of the Disabilities Act, provided for reservation in promotion for persons with disabilities in Groups A and B also.

But instead of implementing the judgement, the Govt. of India had been contesting the issue through various frivolous litigation which were nipped in the bud each time by the Hon'ble Court. 

Judgement Copy

(Hyperlinked text opens the judgement in a new windowJudgement dated 30 June 2016 in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others

Updates as on 04 Sep 2017 

The issue of whether persons with disabilities deserve reservation in promotions as well, apart from the reservation that exists in appointment, has been escalated by the Supreme Court to a five-judge bench since it requires interpretation by the Constitution bench.

On Monday (September 4, 2017) the bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud heard deposition by Solicitor General Ranjit Kumar and counsels  requested a larger bench to hear the issue. The three judge bench headed by the Hon'ble Chief Justice Dipak Misra agreed to refer the matter to a five-judge bench.

The question that 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 had been taken by this Court in Rajeev Kumar Gupta & Others vs Union of India & Others in the affirmative. The Solicitor General had pointed out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney vs Union of India and 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 with disabilities 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.

Wednesday, December 9, 2015

SC directs States & UTs to consider Acid Attack Survivors in Disability List [Judgement Included]

Dear Friends,

On Monday i.e. 07th December 2015, the Hon'ble Supreme Court of India, while hearing WP(C) No. 867/2013 titled Parivartan Kendra Versus Union of India and Others,  directed all states to treat "Acid Survivors" as disabled persons and extend job reservation and social welfare schemes. While it's good thought to extend the benefits of this benevolent legislation to mainstream and empower acid survivors, will there be corresponding increase in the %age of reservation? Which disability group would give up their share ? 

A bench of Justices M Y Eqbal and C Nagappan said that steps must be taken to bring such victims to the national mainstream and putting them in the category of disabled person would be a step in that direction. The victims can claim benefits under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act if they are brought in the disability list.

The central law- The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 provides for reservation in jobs etc to the tune of 3% where 1% each is reserved for Visually Impaired (both low vision and Blind), Orthopedic Disabilities (including cerebral palsy) and Hearing Impaired. There are several other categories defined in the definition of a person with disability in the Act viz. Leprosy Cured, Mental Illness, Mental Retardation etc. but the reservation is not extended to any other categories except the above three. The judgement is silent on the process of granting such reservation as the law currently has no such provision. The direction in the last para is :

"Disposing of the present writ petition, we additionally direct all the States and Union Territories to consider the plight of such victims and take appropriate steps with regard to inclusion of their names under the disability list."

Let us see how the States and UTs respond to this direction coming from none other than top court of the country. But one thing is certain, in today's scenario, no disability group would be willing to let go their share!



Judgement
Here is a media coverage from Times of India: 


Wednesday, September 2, 2015

Supreme Court on filling up of backlog Disability quota (in promotion?)

A unique example of how selected media reporting can create grapevines.  I have learnt that the proceedings in the court were completely different from what has been reported here by the TNN.

The Hon'ble Supreme Court was actually hearing a contempt petition filed by the National Federation of the Blind against the Central Govt for complying with the court's October 8, 2013, regarding filling up of 15000 vacant posts. SC dismissed the plea saying that implementation is under way and accepted Center's response that it will be completed by 31st March 2016.

In this context, While disposing of the plea, SC clarified that since the Govt. of India has committed itself to fill up the entire backlog of vacancies numbering about over 15,000 by way of a special recruitment drive in terms of office memorandum dt. 22.5.15, the contempt proceedings will not be initiated. 

The court said the question of reservation in promotion was not there for adjudication since its October 2013 judgment was only in respect of filling up the vacancies reserved for physically disabled people at the entry point, and could not be read into promotion. The story made out thus is unnecessary reading between the lines.

The bench of Justices Ranjan Gogoi and N V Ramana said this while giving clarification on its October 2013 judgment by which the court had held that the 3 percent reservation for physically challenged people would depend on the total number of vacancies in the cadre strength.

The court said its order has to read in the context of two questions it had framed and addressed in its October 8 judgment. And these two questions were:

(a) First was about the manner of computing 3 percent reservation for people with disabilities as per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act.

(b) The second question that the court had answered in the October 8 judgment was whether the reservation should be post-based or vacancy-based.

I feel the Hon'ble Bench  thus did not sit to review or clarify its earlier order on the issue of reservation in promotion for persons with disabilities. In fact after the said judgement of October 08, 2013,  the Hon'ble SC upheld the orders of Bombay High court, High court of Delhi and High court of Allahabad laying down that Section 33 includes reservation in promotion as well by way of various judgments particularly judgments dt. 10.12.13 in Civil Appeal No. 9473/2011 titled as Municipal Corporation of Delhi Vs. Manoj Gupta, judgment dt. 12.9.14 in C.C. No.13344/2014 and judgment dt. 27.2.15 in civil Appeal No.5914/2015 titled as Union of India Vs. National Confederation for Development of Disabled and Ors and judgment dt. 20.3.15 in Civil Appeal No.4641/2015 titled as State of U.P. Ors. Vs. Sanjeev Kumar Jain and Ors. dismissing the civil Appeals/ SLPs both of Govt. of India as well as respective State Govts.

Therefore, it is to be clearly understood that if  SC /ST are given the quota in direct recruitment as well as in promotion, the disabled category should not be left out from this benefit under the benevolent legislation whose mandate is equal opportunities, protection of rights and full participation of those living with disabilities.  The govt should bring out appropriate revised DoPT memo to implement this long pending issue of reservation in promotion for government employees with disabilities.

Here is the TNN reported version that sought to create confusion among the stakeholders :

SC: Differently abled can’t claim quota in promotion

Amit Anand Choudhary,TNN | Sep 2, 2015, 05.36 AM IST


NEW DELHI: Differently abled persons can claim benefit of reservation in government jobs only at the time of appointment and cannot get the benefit of the affirmative policy in promotion, the Supreme Court said on Tuesday while clarifying its earlier verdict.

A bench of Justices Ranjan Gogoi and N V Ramana said the apex court's 2013 verdict did not hold that the reservation policy could also be extended to promotion in jobs and stressed that the disabled could claim benefits only at the time of recruitment.

The SC had in 2013 directed the Centre and all state governments to provide three per cent job reservation to disabled persons in all their departments, companies and institutions under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act which came into force in 1995.

The Centre submitted that the court had not, while passing order for three percent reservation, dealt with the issue of reservation in promotion and the disabled could not be allowed to claim the benefits.

Although the Court had directed that all vacancies under 3% reservation be filled up within three months, the governments failed to comply with the order in the last two years and there are still 10,000 vacant posts in central government. Solicitor General Ranjit Kumar assured the court that all vacancies would be filled up by the end of this financial year.

Source: Times of India 

Tuesday, July 21, 2015

SC directs TN govt to keep a Judge slot for visually impaired candidate


Keep judge slot for 70% blind lawyer, SC tells Tamil Nadu govt
A Subramani, TNN | Jul 18, 2015, 05.54PM IST

CHENNAI: A CBI prosecutor suffering 70% blindness is close to realizing his dream of becoming a judicial magistrate, as the Supreme Court has directed Tamil Nadu government to keep one post of civil judge vacant for him.

An interim order to this effect was passed by a bench of Justice V Gopala Gowda and Justice S A Bobde on July 10.

Though V Surendra Mohan, 29, of Thiruvotriyur in Chennai got through written examination his name was not shortlisted for viva voce. He filed a writ petition for inclusion in the interview list. As an interim order, the court allowed him to take part in the interview and the result was kept in a sealed envelope. When it was opened after a later order, it was revealed that Surendra Mohan had secured 178 marks out of 400 in written examination, and 38.25 marks out of 60 in viva voce. To a court query, Tamil Nadu Public Service Commission said he was well within the zone of consideration and appointment for a civil judge post.

However, he was not considered for appointment since he suffered more than 50% visual disability, whereas a proposed amendment to rules limited the disability between 40% and 50% for eligible candidates.

On June 5, the high court upheld his exclusion saying, "Taking into account the nature of duties to be performed by the civil judge, the government in consultation with the high court, had proposed to restrict the applicability of the benefit of reservation only to those whose disability ranges from 40% to 50%."

Surendra Mohan took the case to the Supreme Court saying the high court "wholly erroneously relied on admittedly a 'proposed amendment' to deprive him of his right to be appointed as a civil judge on the basis of his partial blindness as provided under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995."

The judgment proceeds to reject the petitioner's claim without either an executive order or an amendment coming into force, he said, adding, "without the law having been changed, there was no basis for the judgment at all."

Reiterating that there is no way he could be excluded from the selection process, he said a GO dated April 11, 2005 clearly notified that PB (partially blind) persons are eligible for civil judge post. "The petitioner, who has 70% partial blindness, cannot in any way be excluded from the recruitment, he said, adding that the high court judgment overlooked the overwhelming discrimination in the system against the disabled, and in an egregious step it excludes the only fully eligible blind man."


Tuesday, June 9, 2015

Kerala High Court: Non-consideration of VH candidate by Kannur University illegal

Terming the non-consideration of VH candidate and appointment of another candidate on the post reserved for persons with Disabilities as illegal, High Court has directed the Kannur University to appoint the visually impaired petitioner within two months.


HC to the aid of visually challenged woman

KOCHI, June 9, 2015
K.S. SUDHI

The High Court of Kerala has come to the support of Prasannakumari, a visually challenged woman from Chottanikkara, who appeared for an interview to a post of lecturer in law reserved for disabled persons in Kannur University.

Justice A.K. Jayasankaran Nambiar of the High Court ordered Kannur University to consider the suitability of Ms. Prasannakumari “for the post notified by treating her as a candidate who has the necessary age qualification for the post and is otherwise eligible for the post.”

The court also ordered the university to complete the aforesaid exercise within two months.

In her writ petition, the 40-year-old woman stated that she applied for the post of lecturer in law, reserved for the physically challenged, in 2008 and appeared for the interview on October 5, 2011.

Later, she received information that another woman had been appointed to the post.

The petitioner approached the court to quash the appointment and direct the university to consider her for the post.

Allowing the petition, the court held that the “action of the university in not considering the suitability of the petitioner for the post of lecturer in law, under the quota earmarked for the physically challenged candidates, is clearly illegal.”

The court also declared illegal the appointment of another candidate to the post that was intended for physically challenged candidates, consequent to a finding that no such candidate was available.

The appointment of another candidate as the lecture in law was also annulled by the court.

Source:  The Hindu 

Monday, May 4, 2015

Chennai HC asks for all GOs by Tamil Nadu on disability reservation for judicial scrutiny

Govt orders on disabled quota under HC scrutiny
TNN | May 3, 2015, 12.42AM IST

CHENNAI: All government orders in Tamil Nadu allowing or disallowing disabled persons from applying for certain posts in government services have come under judicial scrutiny, with the Madras high court making it clear that it would go through all such orders and circulars to ascertain possible anomalies and discriminations.

A directive to this effect was issued on Friday by the first bench comprising Chief Justice Sanjay Kishan Kaul and Justice T S Sivagnanam while dealing with a PIL challenging exclusion of all disabled persons, except those with orthopaedic disability, from the post of village administrative officer (VAO).

The matter relates to Tamil Nadu Public Service Commission (TNPSC) notification to recruit VAOs. Since there was no mention about the quota for visually impaired persons, a federation for visually disabled persons challenged the legality of the employment notification. After being directed by the court to spell out its stand, the government filed a report agreeing that there should not be any blanket ban on visual or hearing impaired persons from applying for the jobs.

"In view of the question posed by this court, the report, in fact, agrees that there should not be a blanket exemption of persons with blindness and low vision or hearing impairment from reservation to the post of VAO or for that matter any post without considering the percentage of disability and level of functionality," the bench said.

The bench then felt there is a need to reconsider the notification, and added: "A person with disability has potential to enhance his skill either by using technology or training through rehabilitation process. It is stated that in respect of VAO a person with 40% visual impairment can discharge the functions after acquiring certain skills."

It then asked the government to take corrective action by issuing fresh GOs in supersession of the earlier orders, and suggested that it hand over a compilation of all the past and existing GOs in for judicial scrutiny. The matter was then adjourned to June 3 for further hearing.

Source: Times of India 

Tuesday, March 3, 2015

SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion

Dear Colleagues,


Despite a three judge bench of the then Chief Justice, Justice Kurian Joseph and Justice Rohinton Fali Nariman of the Hon'ble Supreme Court rejecting the Centre's argument against the reservation in promotion for persons with disabilities on 12th Sep 2014 in Special Leave to Appeal (C) CC No(s). 13344/2014  in terms of The Persons with Disabilities Act 1995, the Union of India (read DoPT) has been dilly-dallying on the implementation of the Bombay High Court judgement in PIL 106/2010 dated 04 Dec 2013 titled National Confederation for Development of Disabled Versus Union of India and Ors by preferring some or the other objections since September 2014.

However, finally on 27 Feb 2015, a bench of Hon'ble Chief Justice HL Dattu and Mr. Justice AK Sikri of Hon'ble Supreme Court, have once again dismissed a Petition for Special Leave to Appeal (C) No 5914/2015 (Arising out of impugned final judgment and order dated 05/12/2014 in NOML No. 690/2014 in  RPL No. 85/2014 in PIL No. 106/2010 passed by the High Court Of Bombay). 

"How do you expect disabled persons to compete with the abled persons," the bench asked while dismissing the appeal filed by the Centre against the Bombay High Court order directing it and the Union Public Service Commission to implement a three per cent quota in direct recruitments and promotions for the disabled in the IAS.

Like last time, The Hon'ble Bench did not give specific reasons. For a copy of Supreme Court Order dated 27 Feb 2015 click here.

However, a large section of media was present in the Supreme Court and has reported the proceedings succinctly


A report in Times of India covers the entire proceedings as below:

Source: Times of India 

‘Disabled should get reservation in promotion’
Dhananjay Mahapatra, TNN | Feb 28, 2015, 03.33AM IST

NEW DELHI: The Supreme Court on Friday said the government could not deny quota in promotion to those who were appointed to a post under the reservation policy for the physically handicapped. 

A bench of Chief Justice H L Dattu and A K Sikri rejected the Union government's plea to set aside a high court decision ordering that those appointed in government service through physically handicapped quota would also be entitled to reservation while getting promoted. 

Arguing for the Centre, attorney general Mukul Rohatgi said there were four categories of civil services and if a person had availed the reservation benefit in getting a job, it would be unfair to extend the reservation benefit yet again to him while considering him for promotion to the higher category of service. 

The bench was not convinced. It said, "Why confine the reservation benefit only to the entry level and not for promotion. If a person is disabled, he is always disabled. So, as long as the disability continues, he should continue to get reservation benefits. We feel that these disabled persons should have reservation not only at the entry level but also at the time of promotion." 

The law provides for 3% reservation to physically challenged persons in government service. After a long adjudication process on a public interest litigation, the apex court had directed governments to implement the quota for disabled and fill the vacancies including backlog. 

On October 8, 2013, the SC in a landmark order had directed the Centre and states to implement within three months an 18-year-old law mandating 3% reservation for such persons in government jobs. 

The 1995 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act came into force on February 7, 1996 providing a minimum 3% reservation in government establishments to the extent of 1% each for persons suffering from blindness or low vision; hearing impairment; and locomotor disability or cerebral palsy. 

The reservations will be implemented by all government departments, public sector undertakings and government companies at the Centre and states, enlarging opportunities for persons with disabilities eligible for benefits under the law. 

Rejecting the AG's arguments, the bench of Justices Dattu and Sikri said, "Don't give a restrictive meaning to reservation by confining it to the appointment level. Disabled persons should be empowered to compete with normal people in promotion." 

When the AG argued further against grant of reservation benefits in promotion to disabled persons, the bench cut it short by telling him that persons belonging to Scheduled Castes and Schedule Tribes got the benefit of reservation both in appointment and promotion. 




Wednesday, February 18, 2015

CAT allows VH candidate to take exam for unidentified post

Now here, the Central Administrative Tribunal has put its mind to work unlike the traditional approach followed by the courts of mechanical interpretation of statutes. If the Government fails to identify posts where VH can work effectively, the VH candidates should not be made to suffer. Identification of posts has in fact become a roadblock for the competent candidates with disabilities to seek better career opportunities who are better placed  given the advancement in technology. Here is the detailed news appearing in Business Standard.

CAT allows visually impaired to participate in Auditor's exam

Press Trust of India  |  New Delhi  February 17, 2015 Last Updated at 18:40 IST

The Central Administrative Tribunal (CAT) has asked the government to allow a visually- impaired staffer to appear in an examination for promotion to the post of auditor, which was denied on the ground that the post was not suitable for the blind. 

A bench of CAT's judicial officer V Ajay Kumar asked the Centre to permit 41-year-old Mithlesh Choudhary, who is visually handicapped and also belongs to SC category, noting that "a prima facie case is made out". 

Choudhary, who is working as a Multi Tasking Staff at the Jaipur office of the Director, Post and Communication Audit, was barred from participating in the selection process for the post of Auditor on the ground that post was not suitable for blind persons. 

"In the circumstances and in view of prima facie case made out, respondents (Centre, Director, Post and Communication Audit and others) are directed to permit Choudhary to participate in the departmental examination for the post Auditor scheduled to be held on February 24 to 27, 2015, provisionally," the bench said. 

However, the tribunal made it clear that his result shall not be declared until further orders are passed by CAT. 

The interim order was passed by the tribunal after applicant's counsel Aurobindo Ghose, while citing an order passed by CAT in a similar matter, argued before it that Choudhary was entitled for direction to participate in the departmental examination for the post of Auditor.

Thursday, January 8, 2015

Not convinced, Court directs second revision in DoPT Memo 29.12.2005 on Reservation for PwDs

Dear Friends,

Post the directions of the Hon'ble Delhi High Court in its judgment dated 17.07.2014 to the DoPT to carry out further modifications in Para 15 of the OM dated 29.12.2005  so that the directions of the Hon'ble Supreme Court to compute 3% of reservation on total number of vacancies in the cadre strength can be implemented, the DoPT has been playing tactics to avoid granting the dues to the stakeholders. 

Yesterday, i.e. on 07th Jan 2015, the DoPT posted on its website at link: Available OM for Persons with Disabilities  the following memorandum carrying out some "further" (second in series) modifications in to its earlier Comprehensive Memorandum on Reservation for Persons with Disabilities : 





Click here for a screen reader accessible copy of the above memorandum.  For all other memorandums by DoPT related to the disability subject click here: Available OM for Persons with Disabilities.

Objective behind the amendment
The objective of this amendment was to harmonise the Comprehensive Memorandum on reservation to persons with disabilities dated 29.12.2005 with the recent clarification of the Hon'ble Supreme Court  in Civil Appeal No. 9096 of 2013 (arising out of SLP (Civil) No. 7541 of 2009) titled Union of India and Anr Vs. National Federation of the Blind and Others which I covered in my blog entry of Dec 10,  2013 titled Physically challenged Vs. Logically Challenged

Does this amendment bring anything new to the stakeholders?
Personally, I failed to find any major difference in the interpretation of said para 14 after two amendments at the direction of the Courts - it is nothing  but merely playing with the words. In nutshell, after a long battle in the court of law, the DoPT just added, "Separate rosters for Group 'A' posts and Group 'B' posts in the establishment shall be maintained."

Was this the intention of the legislature? Did the clarification of Hon'ble Supreme Court really meant this? Is DoPT really intending to giving the disabled their dues as per the spirit of the law and the clarification of the Hon'ble Supreme Court? These are the questions that the Babus of DoPT and Hon'ble PM Modi has to answer. People with Disabilities aren't happy with this attitude nor the way the disability subject is being handled by the departments particularly DoPT. 
  

Friday, October 10, 2014

SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well

Dear Colleagues,
The observations of a 3 member bench comprising Hon'ble Chief Justice R.M Lodha,  Mr. Justice Kurian Joseph and Mr. Justice Rohinton Fali Nariman on 12 September 2014 while hearing a fresh appeal titled Union of India and Others Versus National Confederation for Development of Disabled and Anr speak volumes about the attitude of the bureaucracy towards implementing reservation in jobs for persons with disabilities. The matter was widely reported in media. Appended towards the end of the posts are the two major coverage by PTI and Indian Express on the subject for your ready information.

I have been receiving several requests from several Government officials including State Commissioners for Persons with Disabilities, Stakeholders and friends in the NGOs to write a brief on the judgement, hence this post. 

For some strange reasons, the bench though dismissed this appeal arising out of a Bombay High Court judgement dated 04 Dec 2013 in PIL No. 106/2010, but did not record their reasons for dismissing the appeal perhaps to save the Union Government from further embarrassment. What appeared in the media was thus obiter dicta. i.e. what the Hon'ble Chief Justice commented during the hearing in the court. This did not come in the formal written order. For benefit of readers, you may see the Order dated 12.09.14 by clicking here (Word Format /  PDF Format)

In the instant case at Bombay High Court, the  petitioners National Confederation for Development of Disabled had 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.

In this regard please refer to my earlier blog entry titled Physically challenged versus Logically Challenged dated  10 Dec 2013 wherein I had also posted the Judgement for ready reference. The same can be accessed by clicking link below:

Judgement of Mumbai High Court in PIL 106/2010 titled National Confederation for Development of Disabled and Anr Versus Union of India and Ors. (PDF file that will open in a new window). Also available on High Court website.

Thus in nutshell, the Hon'ble Supreme Court has upheld the above Judgement of the Bombay High Court meaning thereby that the reservation provisions of Section 33 will extend to all appointments in all groups i.e. A,B,C and D and appointment is not restricted to direct recruitment only. It would also include promotion, deputation etc. 

I had in my research work carried out in 2008-09 for HRLN  which later became a part of a book titled "Harmonizing Indian Domestic Laws with UNCRPD"  I had indicated that the reservation for persons with disabilities is to extend to all form of appointments however, the babus of the DoPT and MSJE continue to force upon the limited interpretation of the provisions. I am glad that the Hon'ble court subsequently upheld it in this above matter. I hope this broad interpretation - the will of the legislature while enacting the disabilities Act 1995  - will be preserved in the new draft Disabilities Act as well.

regards
Subhash Chandra Vashishth
Advocate


News Coverage

SC clears 3% reservation for disabled in jobs, promotions  (Indian Express)

Written by Utkarsh Anand | New Delhi | Posted: September 12, 2014 5:44 pm | Updated: September 12, 2014 9:59 pm

The Supreme Court on Friday ruled in favour of three per cent reservation for differently-abled candidates in civil services, not only at the stage of their  appointments but also for departmental promotions.

Giving a level-playing field to more than four crore people with disabilities in India, the apex court held that the Centre, states and Union Territories were obligated to implement the rules of reservation for this class in the matters of appointment, selection, direct recruitment, deputation and also for promotions. It asked the Centre to show a big heart and give the differently-abled people their due in all central and state government jobs.

A bench led by Chief Justice of India R M Lodha reiterated its earlier verdict that the principle of not exceeding 50 per cent reservation would not be applicable while granting quota for differently-abled people.

The bench expressed its displeasure at the government seeking to adopt a hyper-technical approach, as its counsel pressed that three per cent reservation could be given only at the stage of appointment but not for promotion. The Persons With Disabilities Act provides for three per cent quota for the differently-abled people.

“Appointment will include promotion. You are frustrating the very reservation policy for the disabled — the class for which this beneficial piece of legislation was enacted, by arguing against it,” the bench, also comprising Justices Kurian Joseph and Rohinton F Nariman, told Additional Solicitor General Pinky Anand.
Anand sought to point out that the reservation at the stage of promotion may lead to huge resentment, especially among employees in Group A and Group B categories, since many beneficiaries may get ahead of their seniors.

She was placing an appeal against the Bombay High Court order, directing the government to implement three per cent reservation for the differently-abled in civil services recruitment, besides granting the benefit in the matter of promotion too. This order was issued on a PIL filed by the National Confederation for Development of Disabled, which was represented by senior advocate R S Suri and Arpit Bhargava in the apex court.

The bench, however, told the Additional Solicitor General that the objective of the reservation policy, as envisaged by Parliament, was unequivocal that the differently-abled people must get the benefits without technical impediments.

“Once Parliament prescribes for reservation in appointments, it will cover direct recruitment, promotion and even deputation. Our experience tells us that it is one legislation that has never been effectively implemented. In any case, it is a beneficial legislation and you should interpret in a manner so that they get the benefits,” said the bench.

At this, the Additional Solicitor General agreed with the bench and conceded not to press the appeal any further. The court then dismissed the appeal. The three per cent reservation, as clarified by the apex court in its last year’s judgment, is to the extent of one per cent each for the blind, hearing and speech impaired, and persons suffering from locomotor disability or cerebral palsy. The Supreme Court had in October last ruled in favour of a minimum three per cent reservation for them in all central and state government jobs. Regretting the denial of opportunities to the differently-abled people in the country, the court had quashed the Centre’s 2005 office memorandum and the government’s claim that the reservation policy not only had to be different for Group A, B C and D posts but the quota had to confine to “identified” posts. 

Source: Indian Express

3% quota must for disabled people in all govt jobs including IAS: Supreme Court
PTI | Sep 12, 2014, 06.17PM IST

NEW DELHI: The Supreme Court on Friday held that three per cent reservation for disabled people be given in all categories of government jobs including in appointments and promotions to IAS, while pulling up the Centre for "blocking" the very purpose of this empowering legislation by opposing it.

A bench headed by Chief Justice R M Lodha said that people with disabilities have not got their due in the last 19 years despite the framing of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, which was passed in 1995.

Additional solicitor general Pinky Anand, appearing for the Centre, contended that reservation cannot be given in case of promotion to Group A and Group B officers category as it is not a case of appointment. The bench, however, observed that appointment is a broader concept and the Centre is giving a narrow interpretation of it.

"You are frustrating the very reservation policy and cause of class for which Parliament passed the law," the bench said.

"For the last 19 years it is not being implemented and the class, for which the legislation was made, had not got benefited as it should have," the bench said.

The court dismissed the petition of the Centre challenging an order of Bombay high court which had directed the Centre and the Union Public Service Commission to implement 3 per cent quota in direct recruitment and promotions for the disabled in the IAS.

Source: Times of India