Showing posts with label Supreme Court Judgement on Reservation in Promotion. Show all posts
Showing posts with label Supreme Court Judgement on Reservation in Promotion. Show all posts

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

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, 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. 




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