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 

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