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Reservation In Promotions For Persons With Disabilities : Centre Seeks Clarifications On Supreme Court Verdict

LIVELAW NEWS NETWORK
21 Sep 2021 11:58 AM GMT
Reservation In Promotions For Persons With Disabilities : Centre Seeks Clarifications On Supreme Court Verdict
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The Central Government has filed an application in the Supreme Court seeking clarifications with respect to its judgment which declared that persons with disabilities have right to reservation in promotions.On Tuesday, a bench comprising Justices L Nageswara Rao, BR Gavai and Sanjiv Khanna heard arguments on the Centre's application, which seeks clarifications with respect to the...

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The Central Government has filed an application in the Supreme Court seeking clarifications with respect to its judgment which declared that persons with disabilities have right to reservation in promotions.

On Tuesday, a bench comprising Justices L Nageswara Rao, BR Gavai and Sanjiv Khanna heard arguments on the Centre's application, which seeks clarifications with respect to the judgment delivered in 2020 by a 3-judge bench in the case Siddaraju v. State of Karnataka.

In that case, a 3-judge bench led by Justice RF Nariman had answered a reference to approve the view taken by a 2-judge bench in the 2016 decision Rajiv Kumar Gupta v.Union of India which held that reservation in promotion for persons with disabilities is not prohibited.

Centre's arguments

Additional Solicitor General Madhavi Divan argued that widespread application of reservation in promotions for persons with disabilities across the board as per the judgment will lead to several practical problems.

She pointed out that for lateral induction from State Civil Services to Indian Administrative Services, there is no SC/ST/OBC reservation. Therefore, applying PwD reservation for such lateral induction will be anomalous.

She further submitted that in Group A category, there are several layers without quota. Reservations for SC/ST/OBC are given only in the lower rungs in Group A.  So there needs to be clarification if PwD quota in promotions apply to all Group A posts.

"The judgment is being widely interpreted to say that reservation applies in all promotions, which is creating some practical problems", Divan submitted.

Divan submitted that the Rajeev Kumar Gupta case held that PwD reservation should not be denied merely because the mode of recruitment to a post is promotion, if such post has been identified under the Persons With Disabilities Act. The judgment cannot be understood as saying that PwD reservation will apply in all promotions.

The top law officer of the Union further submitted that the expert committee has identified several posts for PwD reservation, and hence lot of opportunities are now available for them.

"If we understand you correctly, you are saying that there is reservation in feeder posts...and there there are categories identified in higher levels. So, there are opportunities for a person to move up and there is no stagnation", Justice Rao asked.

"That's correct", Divan replied.

Divan further submitted that the judgment in Siddaraju was rendered in the context of the PwD Act 1995. However, the said Act has been replaced by the Rights of Persons With Disabilities Act 2016. Therefore, a clarification was necessary if Siddaraju applied with respect to the 2016 Act as well. This was needed as the 2016 Act prescribes 4% reservation( it was 3% reservation under the 1995 Act) and includes more categories of benchmark disabilities.

Justice Sanjiv Khanna asked the ASG if the Centre has issued instructions for applying reservation in promotions in terms of proviso to Section 34 of the 2016 Act. The said proviso reads as "Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time". The ASG replied that no such instructions to provide reservation in promotion has been issued by the Centre.

Centre seeking to undo the judgment, argues the opposite side.

Senior Advocate Jayna Kothari, appearing for Siddaraju, argued that the issues raised by the Centre in the clarification application were already considered in the judgment. The judgment had made it very clear that it was dealing with a case under the 1995 Act.

The lateral induction from state services to central services was the actual issue in the Siddaraju case. So, the Centre cannot seek to reopen the issues already settled by the judgment.

"The Rajeev Kumar Gupta judgment said that once the post is notified, mode of recruitment shall not be a ground to deny reservation. Also, the judgment of Justice Nariman clarifies that it is dealing with the 1955 Act . So whatever clarifications sought by Union are  already covered. This MA(Miscellaneous Application) is filed to undo the judgment", Kothari submitted.

Responding to the ASG's submissions regarding lack of SC/ST reservations in lateral inductions and higher levels, Kothari submitted "PwD reservation is not comparable to SC/ST reservation. It is a statutory reservation".

"The difficulty which will come in your way is... Centre has not yet issued instructions in terms of proviso to Section 34", Justice Khanna told Kothari.

In reply, she pointed out that the judgment had not just answered the reference on the point of law but also considered the individual case of Siddaraju, and held him entitled to promotion. She informed the bench that Siddaraju has not obtained the benefit of reservation at any point in his service.

Since the judgment has not yet been implemented, contempt petition has been filed, Kothari added.

The bench will continue the hearing tomorrow.

(Case Title : Siddaraju v. State of Karnataka, MA No.2171/2020 in CA No.1567/2017)

Click Here To Read/ Download Order








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