Showing posts with label latest supreme court judgement on reservation in promotion for disabled. Show all posts
Showing posts with label latest supreme court judgement on reservation in promotion for disabled. 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]


Court: Hon'ble Supreme Court of India
Bench: Rohinton Fali Nariman, Aniruddha Bose, V. Ramasubramanian
Case Title: Siddaraju vs The State Of Karnataka on 14-15 January, 2020
Case No.: 
CIVIL APPEAL NO. 1567 OF 2017
Date of Judgement: 14-15 Jan 2020
Author: Rohinton Fali Nariman

Brief:

Dear Colleagues,

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

  1. Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A, B, C and D alike [01 Jul 2016]
  2. SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion [03 Mar 2015]
  3. SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well [10 Oct 2014]
  4. 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:


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 to 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.


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]

Court: Supreme Court of India

Bench: Hon'ble Mr. Justice J. Chelameswar & Hon'ble Mr. Justice Abhay Manohar Sapre

Case TitleRajeev Kumar Gupta and Others Versus Union of India and Others

Case No.: Writ Petition (Civil) No. 521/2008

Date of Judgement30 June 2016

Subject: Reservation in Promotion for Disabled to Group A and B posts; Section 33 of The Persons with Disabilities Act 1995

Brief:

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 below office memorandums 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.:-
  •  OM No. 36035/16/91-Estt.(SCT) dated 18.02.1997  and 
  •  OM NoNo.36035/3/2004-Estt. (RES) dated 29.12.2005 
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 

Download the Judgement dated 30 June 2016 in Writ Petition (Civil) No. 521/2008 titled Rajeev Kumar Gupta and Others Versus Union of India and Others (PDF 326BKB) or read the judgement below:



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.