Monday, March 2, 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. 




31 comments:

Sanjiv Sah said...

What for dopt is waiting and not issuing proper OM in this regard? Why dopt is depriving the disabled of their legal benefits?

Sanjiv Sah said...

Whether any further option is left for govt for depriving disabled?

SWAPNA PRABHA said...

A.Prabhakaran OCF AVADI : Again a land mark judgement. It is not understood why UOI is having kind heart to treate the disable in fair way and issue respective order for the development of disable for their livelihood.

U S SAHU said...

Earlier only C and D post were reserved, that was for many years to prevent the person from decision making post.

Sanjai Saxena said...

It is the bureaucrats who do not want promotion to physically handicapped persons in group A and B cadre. It will not be surprising if they may also be misleading the government.

gurpreet singh said...

I believe Babus are very much frustrated with this decision. They are not able to digest this dec

gurpreet singh said...

What is to be done , Actually we dont have a leader/organisation who can represent this fact to PM Modi Ji

vipin gupta said...

Ky aap meri help karenge sir ki C and D post k promotion me reservation ka order kahan se mil payega...

Subhash Chandra Vashishth said...

Vipin, for all dopt memos please visit site http://ccis.nic.in/CP_Circular_Report.asp?MinCode=2&DepCode=0&DivCode=0&SecCode=(0)&CNCode=1&MctCode=17&SctCode=243&ArchCode=2

For you Memo dated 29 Dec 2009 will apply which is available at http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02adm/36035_3_2004-Estt(Res)_29122005.pdf

gurpreet singh said...

Sir from group C to B ka decision pending kyon hai,ya hum 07 jan ke order ko properly samajh nahin paa rahe hain,please elaborate

Subhash Chandra Vashishth said...

Gurpreet- reservation in promotion to group C to B or from B to A or within B or A were not allowed as per the earlier interpretation. However, the SC has clarified that it has to be applied in all the groups in similar fashion. SC did not give a detailed order. It simply dismissed the Govt. of India's appeals against the Mumbai High Court order thereby making Mumbai High Court judgement absolute.

janardan singh said...

J Singh -For benefit in promotion, SC judgement will apply for both category (a) disabled Person recruited in PH quota (b) who acquire disability after entering in Govt service. Please clarify.

Subhash Chandra Vashishth said...

A person recruited under the quota for persons with disabilities or acquired disability subsequent to joining and was protected under section 47 of Disability Act - both are persons with disabilities under the Act. Therefore, both can benefit from the reservation provisions. The law doesn't make any distinction between the status of the two.

xyz said...

Contempt petition may be filed against dopt for not implementing supreme court judgements. As OMs issued by dopt are not in accordance with judgement of Bombay high court/supreme court as there Oms does not provide reservation in promotion to disable officers in group A and B posts where court has clearly granted reservation in promotion.

Vijay Karkar said...

Sir , please explain if total 4 post is available for promotion ,than reservation for PH person how can be consider? Please explain tharoughly.

xyz said...

Please file contempt petition against DOPT to force him to issue OM for grant of reservation to physically handicapped both in promotion and direct recruitment in all groups and grades

Devinder Garg said...

Subhash sir please help me to get reservation in promotion from clerical to officer cadre in psu banks State bank of patiala, sir bank denied there is no reservation in promotion but as Supreme court decision reservation applies to both recruitment and promotion
pls help me suggest the procedure to get reservation
Devinder garg

Ravi Kumar said...

Sir, I m Ravi from pondicherry. Even after the judgement, govt has not yet implemented it. I was affected. what i shall i do to get this implemented. Please guide me. Whether I have to approach the court.

Praveen Goswami said...

The PMO has said that the reservation in promotion in Group A and B is pending for final decision in the Hon'ble Supreme Court in a contempt petition pending before it. Is DOPT the one who has committed contempt of court. When do we expect its implementation?

Subhash Gawande said...

When is the next hearing before the Hon'ble Supreme Court in a contempt petition
please give details.
early hearing is possible ??????

Sunil Patel said...

When contempt petition has been filed? and what is the update?

INCOME TAX EMPLOYEE, PUNE said...

SC on 07.01.2016 dismissed an another attempt of govt for not granting reservation in promotion.

sai ra said...

3% reservation in promotions is not implimented in kerala...what we have to do???

Sapan Kumar said...

After passing more than 1 year dopt not ordet for reservation in promotion in grp A&B services

Sreeju Nair said...

sir
can I have the link of the judgement dated 27.02.2015?

Dr.SIDDARAJU KOTHATHI said...

Vashishthji,I am a physically disabled person selected to a group A category post during March 1997 without availing reservation under physically disabled category. Though I worked very hard sincerely in whichever post I have been posted, some of my prejudiced bosses have wrote in my annual performance report average and good, though some have written very good and outstanding. When I have approached the Karnataka Government requesting to promote me to IAS under Non-SCS quota as per the honourable Bombay high court judgement which was up held by the honourable supreme court, the Government were not responded positively.Quoting the reason that my ACRS are not on par with other candidates who are promoted to IAS, my petions are dismissed in the honourable CAT and honourable High court of Karnataka. Then what is the necessity of reservation to physically disabled, if they are considered with the physically fit candidates to deny the opportunities to the disabled. When we are treated in this way even from the courts which are considered as last hope to the weaker sections, to whom we have to approach. Having a 1st class B.Sc and M.Sc degree with Ph.d.,I have contributed many Science and Environmental articles in leading periodicles in Kannada. I have also worked as resource person to train Panchayath Raj institutions members and officials. Further why they are comparing the disabled with others as our honourable chief justice Mr. Dattu had rightly pointed out. From where I have to get justice Sir.
By
Dr.Siddaraju

moromor lego said...

IN ARUNACHAL PRADESH DISBLED PERSONS ARE HATED. I M A DISABLED PERSON 55% given promotion to a higher administrative post. unfortunately a senior officer so called elite leader of his community challenging my disability and post.

requesting the high court to quash my dpc and he should be given.
does not he sounds crazy or provoked and be fooled by others?

friends what measure should i take at this stage?

Subhash Chandra Vashishth said...

@Moromor It is difficult to comment without knowing the background of the case. Could you separately write to me at subhashvashishth@gmail.com

Subhash Chandra Vashishth said...

@Dr.SIDDARAJU KOTHATHI - You have equal right of being considered for promotion irrespective of your disability as the state can not discriminate on the grounds of disability. Secondly, after the recent judgement of Hon'ble SC that makes it very clear that reservation in promotion is to be provided in all grades and categories and you must seek the implementation of the same. Regarding the entries in the ACR, if you were not informed about the same, you should have immediately challenged as and when you came to know about it. write to me at subhashvashishth@gmail.com separately giving details of the petitions dismissed in CAT and High Court and the present status.

@Sreeju Nair - Please refer to http://disabilityrightsthroughcourts.blogspot.in/2016/07/supreme-court-says-section-33-entitles_1.html for the updated status.

@Sai RA - Please write RTI applications seeking status of implementation of section 33 from the concerned department. Ask them the copy of reservation rosters.



santoshganti said...

as per section 47 of pwd act the person cannot be terminated from service nor reduced in rank is also applicable to person with disabilities also or not

Unknown said...

Has BSNL implemented reservation for PWD in promotion of group B? I am a Sub divisional Engineer with 60% disability and is being denied of promotion as they claim that there is no such policy in BSNL.