Friday, January 24, 2020
Thursday, January 23, 2020
RESERVATION IN PROMOTION FOR PERSONS WITH DISABILITY (PWDS) NOT PROHIBITED: SC UPHOLDS 2-JUDGE BENCH DECISION [READ JUDGMENT]
The Supreme Court has observed that the rule of no reservation in promotions as laid down in Indra Sawhney has no application to Persons With Disability (PWD).
A three judge bench headed by Justice Rohinton Fali Nariman upheld a two judge bench view that the basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1).
The bench, also comprising of Justices Aniruddha Bose and V. Ramasubramanian, was considering a reference which doubted a view taken in Rajiv Kumar Gupta & Others v. Union of India & Others – (2016) 6 SCALE 417. The bench in Rajiv Gupta, in the context of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 had noted that there is no prohibition against reservation in promotion for Persons With Disabilities. The bench in Rajiv Gupta said that the principle in Indra Sawhney & Others v. Union of India & Others – (1992) Supp. 3 SCC 215 against reservation in promotions will not extended to PWDs.
But this view was doubted by a division bench in 2017, observing that Persons With Disabilities required preferntial treatment but not reservation in promotion. On that premise, the bench referred the decision in Rajiv Kumar Gupta to larger bench.
Upholding the view in Rajiv Kumar Gupta, the bench held thus:
"we are of the view that the judgment of this Court cannot be faulted when it stated that Indra Sawhney dealt with a different problem and, therefore, cannot be followed. We may also note that review petitions were filed and have since been dismissed against both the 2013 and 2016 judgments. Consequently, the reference stands answered by stating that the 2013 judgment as clarified in National Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611 and the judgment in Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153 case will bind the Union and the State Governments and must be strictly followed notwithstanding the Office Memorandum dated 29.12.2 in particular."
In Rajeev Kumar Gupta, it was observed thus:
The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion, etc. mentioned in Article 16(1) as the basis.
The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to PWD.
Limited Transfer Facility for all categories of Gramin Dak Sevaks (GDS).
O.M. No 17-312016-GDS dated 22.01.2020 from Ministry of Communications Department of Posts (GDS Section)
The undersigned is directed to convey approval of Competent Authority on the following guidelines to regulate the Limited Transfer facility of Gramin Dak Sevaks in supersession of all previous orders:-
1. Conditions of Transfer
(i) The maximum number of chances to be provided for male GDSs is ONE only and TWO for female GDSs.
(ii) The transfer will be at his/her own request and own cost to a vacant post at his/her place of choice to his/her/spouse home village or home division or a place recommended for medical treatment.
(iii) A minimum engagement period of TWO years from the date of regular engagement on GDS Post will be mandatory for male GDS, before transfer request can be entertained.
(iv) A minimum engagement period of ONE year from the date of regular engagement on GDS post will be mandatory for female GDS.
(v) For PwD GDS and GDS having PwD dependents Mentally retarded dependents, a minimum engagement period of ONE year from the date of regular engagement on GDS Post will be mandatory.
(vi) Transfer request of GDS who are under put off duty or against whom any disciplinary action, Police case or Court case is pending will not be entertained.
(vii) Past engagement period will be counted for assessing the eligibility for appearing in departmental examination as well as for annual increment. GDS will not have any claim to go back to the previous engagement /recruitment Unit/Division in any circumstances.
(viii) When a GDS is transferred at hisrher own request and the transfer is approved by the competent authority, she/he will rank junior in the seniority list of the new unit, to all the GDS of that unit who exist in the seniority list on the date on which the transfer is ordered, except in case of transfer withi.n the same engagement / recrui.tment Sub Division/Unit /Division.
(ix) (ix) Mutual Exchange facility can be provided to all GDS on completion of ONE year (for Female GDS) and TWO years (for Male GDS) engagement period as the case may be.
(x) The GDS can be transferred on her/his request in following circumstances:-
(a) BPM Level 2 to BPM Level'-2 in TRCA slab 3
(b) BPM Level -1 to BPM Level-1 in TRCA slab-2
(c) ABPM/Dak Sevaks Level-2 to ABPM/Dak Sevaks Levl-2 in TRCA slab-2
(d) .ABPM /Dak Sevaks Level-1 to ABPM/Dak Sevaks Level-1 in TRCA slab-1
(e) BPM Level-1 to ABPM/Dak Sevak Level-2(PostaliRMS) in same TRCA slab.
(f) ABPM/Dak Sevak Level-2 (Postal) to BPM Level-l in the same TRCA slab provided that, the GDS has to make accommodation arrangement for managing BO as per standard prescribed for BO and fulfilling the condition of educational qualification, Computer certificate etc. prescribed by the Department from time to time. Before joining as BPM Level-l, he/she has to undergo prescribed training for BPM.
(g) Request transfer of ABPM/Dak Sevak from Postal to RMS in the
same TRCA slab.
(h) Transfer from RMS to Postal i.e. from Dak Sevak to ABPM/Dak
Sevak in the same TRCA level. However, Dak Sevak from RMS should not be transferred to Postal Dn. as BPM.
(xi) There will not be any drop in TRCA slab on account of a request transfer and numbers of increments earned by GDS will be retained.
(xiil All request transfers are to be considered subject to condition that verification formalities viz (Caste, Education and Police verification report etc.) should have been completed.
2. Competent Authority
The transfer of GDS wiII be approved by Regional PMG, if the transfer is within the Region and by the Head of the Circle, if the transfer is within the Circle. The approval of two concerned Head of Circle will be required, if the transfer is between two Circles.
3. Process of Transfer
(i) Application for transfer should be called for during April June of every year.
(ii) An application will be submitted to the Divisional Head on a prescribed Proforma attached herewith as Annexure-I.
(i)The application will be submitted through head of the recruitment/engagement Unit/ Division duly recommended.
(III) Divisional Head will submit all the applications to approving authority through proper channel with factual report and recommendations.
(iv) A separate register in prescribed Proforma attached herewith as Annexure-Il is to be maintained at Circle Office/Regional Office/Divisional Office for recording transfer requests of all categories of GDS.
(v) All the applications received wiII be arranged in order of seniority from the date of engagement of GDS and the orders for transfer may be issued during July.
4. The above instructions will come into effect from the date of issue of this O.M.
5. Hindi version will follow.
,(S.B.Vyavahare)
Assistant Director General (GDS/PTC)
Tel No 011-23096629
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