Showing posts with label reservation in promotion for disabled. Show all posts
Showing posts with label 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]

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, September 17, 2009

Reservation on single post would amount to 100% Reservation

Dear Friends,

Many of us in the Disability sector believe that 3% reservation for the PWD can be claimed on all posts including single posts. However, the courts have several times clarified that reservation on the single posts would be discriminatory to others and is against the provisions of Constitution of India as it will tantamount to 100% reservation.
regards

SC Vashishth
To read from source, click here

Delhi HC dismisses plea for reservation to single post of VC
9/16/2009

The Delhi High Court dismissed the petition of a person who sought the court’s intervention to grant disability reservation to him in the appointment of Vice-Chancellor (VC) in newly-formed 15 universities.

A bench, comprising Chief Justice A P Shah and Justice Manmohan, dismissed the petition as withdrawn as there was only one post for the VC which could not be covered under any reservation clause.

Petitioner P R Ramanujam, who is suffering from locomotive disability and working as a professor of distance education and director of staff training and research institute in IGNOU, applied for the post of first VC in the newly formed 15 universities established under the Central University Act, 2009.

Mr Ramanujam contended that there was a statutory mechanism providing three per cent reservation to persons with disabilities, therefore, his name should be considered under the reserved category. Additional Solicitor General A S Chandhioke and Government Standing Counsel Ravinder Agarwal told the court that in this case reservation of any type could not be granted because there was only one seat for the post of VC and if reservation was granted, it would mean 100 per cent reservation. On this, the petitioner withdrew his petition.
UNI

Wednesday, July 29, 2009

Reflections on SC judgement on Efficiency a ground for denying promotion to PWD

Dear Friends,

After my last post on the subject, I studied the detailed judgement of the Hon'ble Supreme Court titled Union of India Versus Devendra Kumar Pant & Ors, Civil Appeal No. 4668 of 2007 and following are few reflections on the same:

  • The whole debate around Medical standards for Persons with disabilities is actually confusing to many disabled people including those with visual impairments that this judgement might affect them adversely. There is a general fear that on one hand the employers might use the clause of efficiency & medical standards against the persons with disabilities to deny them promotional avenues and on the other hand, people without a certain nature and extent of disabilities (read -disabilities not covered under PWD Act) might usurp the rights and facilities of those who are presently allowed the benefits under the Persons with Disabilities Act.
  • In this case, the Hon'ble Court failed to take in to cognizance that for a person with any disability to be eligible to a post for recruitment & reservation, there exist a List of Identified Jobs which can be held and performed by that category of persons with disability. The separate question of medical standards and disability will not arise here as the jobs have been identified taking in to account all such factors.
  • Although the identification list of no consequence in the present case as it relates to the right to promotion which can not be denied to the person on the grounds of Disability acquired. If the person is unable to do the job, reasonable accommodation must be tried and use of modern technology should be promoted to help him settle in new role. If even that fails, he can be shifted on equivalent posts within the same department.
  • The court has coined a new interpretation of Efficiency as a necessary condition besides minimum medical standards under Section 47 which is not in sync with the spirit of PWD Act. The purpose of Section 47 is not to recruit a person afresh but rehabilitating an employee who has acquired disability during his service, hence including clauses of medical standards and efficiency seem to be misplaced. Also Efficiency is subjective and when attached to disabilities can be misinterpreted and misused by bureaucrats, employers etc in their own way allowing grounds for discrimination rather than reducing and minimizing them.
  • Incidentally, none of the posts in question i.e. Junior Research Assistant, Senior RA and Chief RA, are identified for persons with Blindness or Low vision, therefore, it hardly affects the rights of visually challenged in the Country.
  • Though the respondent is not a person with disability in terms of the Medicalised definitions given in the Persons with Disabilities Act as neither the Colour blindness is defined as a type of disability nor the disability of the respondent has been assessed to be above 40%. However, Section 47 is a social security and human rights provision to ensure continuity of support from the Government in case an employee of the Government acquires disability during his service.
  • Thus, to me here, the degree and extent of disability is of no relevance for the purposes of Section 47 (1) as the said person should be allowed to save his job under this provision, even if his disability is less than 40% for the simple fact that he is not claiming the 3% reservations available for the three categories of disabilities.
  • If degree and percentage of disability is made relevant here to attract this section, then any employee acquiring less than 40% disability would be left without any rights and social security that this Section intends to guarantee.
  • However, in case his disability is more than 40 %, he would be surely authorized to claim other benefits available to Persons with disabilities under the PWD Act besides saving his job under Section 47 (1).
  • Therefore, if the Hon’ble Court had shown a little bit of judicial craftsmanship, it may have been possible to expand the definition of disability to include within its ambit the lack of or reduction in colour perception. On earlier occasions, Delhi High Court had considered a person with heart ailment as person with disability to save his job under section 47. This would have given a wider and appropriate interpretation to the Section 47.
  • However, in the instant case, the issue was of denial of promotion and not saving the job.
  • As claimed by the Respondent, the job of the all the three levels is same and earlier the post of Junior Research Assistant, Senior Research Assistant were suitable for Medical Category B3 and B2 respectively while the Chief Research Assistant was required to have B1 medical category (that requires person to be free from colourblindness). The same stood revised in 1990 as B1 for all three successive posts.
  • However, the old employees were allowed to continue on their existing posts even if they were below B-1 (post revision category). The respondent is Medical Category B-2 currently and holding the post of Senior Research Assistant for which currently B-1 is the requirement as per revised standards of 1990. If the job is almost similar, then the rule of medical standards seems highly misplaced. Also if the old employees with lower medical categories can continue to hold and work on the present posts (now requiring B-1) without being a risk to safety, security and efficiency, then the same employees could also be promoted using same logic.
  • However, looking at the judgement from a cross disability perspective, and from the perspective of UNCRPD, the Hon'ble Court has once again perpetrated the age old view of looking at impairments from the medical point of view i.e. the individual's condition and impairment in the body is seen as the problem and not the inaccessible social structures around. In fact the whole human rights agenda has been thrown to the back burners.
  • The UNCRPD doesn’t make mention of degree and extent of disability in terms of percentage and types the way PWD Act does hence perpetrates the medical model of disability. The domestic Act is desperately in need of amendments to be in sync with UNCRPD.
  • Also the employer, i.e. RDSO did not explore any possibilities of reasonable accommodation which could make possible conditions of work of higher post which amounts to discriminatory exclusion. Whether Chief Research Assistant work during night and whether the job could be done easily with special equipments/devices was never explored in this case. The whole attempt was to relegate him to be medically unfit for the promotion by blindly following the revised medical standards. Colour Blindness is not a disease but a condition, thus discrimination on this ground is surely against the tenets of UNCRPD, if not of PWD Act which is constrained by medicalised definitions of various disabilities.



The judgement has left a bitter taste in the mouth of activists in the field and the disappointment is because of the inability of the Apex Court to arrive at a reasonable conclusion after considering all issues involved in the case and the UNCRPD & human rights philosophy.

regards

SC Vashishth, Advocate



Thursday, July 23, 2009

Employees with Disabilities can be denied promotion on grounds of efficiency, security and safety.

Dear Friends,
We have got in to a habit of opposing any thing that takes away rights of the disabled. But here is the time to think, cogitate and reason out. While on one hand the enabling PWD Act says that Promotion can not be denied on the grounds of Disability, this black judgement says people with disability can be a risk to safety & security to equipments, themself and to the organisation they work for, etc!
Hon'ble Supreme Court has said that Efficiency can be a ground to refuse promotions to those with disability if their disability poses a threat to the security, safety and efficiency. The issue is very sensitive for it goes against the intent of the beneficial legislation and poses threat of stagnation before an employee with disability or those who acquire a disability while in service.
The PWD Act actually mandates a social security system for those who happened to acquire disability or have disability that they don't get stagnated. And it is well known now that with assistive aids and devices, the employees with disabilities are no less than their non-disabled counter parts.
The problem is that there is no rehabilitation programme for those who acquire disability during service and also there is no sensitization in the superior officers who recommend or decide on promotions and sit in the Selection Committees and DPCs!
Even this judgement seem to be going against the spirit of the PWD Act and also doesn't take in to account the role of modern technology in enabling a person with disability while at work. Its easy to label some one unproductive, inefficient, risk for security and safety but equally difficult to remove these labels.
To me, this judgement reflects the attitude of general society toward the disabled. It reinforces a minimum medical standard for promotion even for disabled people. There were already biases and negative attitudes but the law was enabling the employees with disabilities to fight back and seek their rights.
I am sure this judgement would go as a dark phase in the history of disability and development and employees would never be promoted under this garb and would remain stuck at where ever they are.
I fear that under these situations and conditions, the Courts might come against Section 47 also and refuse the employee acquiring disability during service to even continue on the present post in the garb of security, safety and efficiency!! I deeply regret this judgement for I don't find it any way close to the intent of The Persons with Disabilities Act and as well as UN Convention on Rights of Persons with Disabilities!
My experience with The Indian Railways has been very negative so far as the rights of disabled in employment are concerned. At each step they have refused to accommodate people with disabilities in their workforce on some or the other ground and the sector had to knock the doors of the Judiciary. We had favourable judgements from the highly sensitized judges of High Court of Delhi and other high courts but this time the Railways have managed to manipulate and misrepresent the abilities of people with disabilities before the court as well as perpetuated their age old believe that disabled employees pose a risk even in the controlled set up like research laboratories!!
To me, its more a case of improper and misrepresentation of facts and law before the double bench and this is not in the interest of the disability sector. I don't see that after this judgement, the long list prepared by Min. of Social Justice of the Jobs suitable for People with disabilities is of any relevance!!
regards
SC Vashishth, Advocate-Disability Rights
To reach from source click here: Times of India
Efficiency can be a ground to deny promotion to a disabled: SC
Dhananjay Mahapatra, TNN 23 July 2009, 03:43am IST

NEW DELHI: In a significant judgment, the Supreme Court has ruled that the government or an employer can deny promotion to a disabled person if they are of the opinion that it can compromise efficiency, security or safety.
A Bench comprising Justices R V Raveendran and P Sathasivam gave this ruling despite being fully aware of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which mandated that "no promotion shall be denied to a person merely on the ground of his disability". Allowing an appeal of the Union government, the Bench said the 1995 Act would have no significance where the employer stipulated minimum standards for promotion keeping in view safety, security and efficiency.
"If the employee is unable to meet the higher minimum standards on account of any disability or failure to possess the minimum standards, then the Act would not be attracted, nor can it be pressed into service for seeking promotion," said Justice Raveendran writing the judgment for the Bench.
Clarifying that it was not against the legislative intention behind the 1995 Act, the SC said: "Where the disability is likely to affect the maintenance of safety and security norms, or efficiency, then the stipulation of standards for maintaining such safety, security and efficiency will not be considered as denying a person with disability, promotion merely on the ground of his disability."
The Bench said it was aware of the intention of the Act, that was to give a helping hand to persons with disability so that they could lead a self-reliant life with dignity and freedom. "But, the intention of the Act is not to jeopardize the safety and security of public, co-employees, or the employee himself or the safety and security of the equipments or assets of the employer nor to accept reduced standards of safety and efficiency merely because the employee suffers from a disability," the Bench said.
The apex court, through this judgment, upheld the prescription of a minimum medical standard for promotion from Senior Research Assistant to Chief Research Assistant in the Research Designs and Standards Organisation of the railway ministry and upheld the Union government's decision not to grant promotion to a disabled person who did not meet the minimum standards.
dhananjay.mahapatra@timesgroup.com