Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. Kamlesh Ghumre a/w Ms. Sonali Jadhav for the Petitioner.
  • Mr. Anil Singh, ASG a/w Mr. Parag A. Vyas and Mr. H.V Mehta for the Respondent No. 1-UOI.
  • Mr. Vinay S. Masurkar a/w Mrs. M.V Masurkar and Mr. S.G Thakur for the Respondent No. 2.
Judges
  • A.S Oka
  • A.A Sayed, JJ.
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Mr. Kamlesh Ghumre a/w Ms. Sonali Jadhav for the Petitioner.
  • Mr. Anil Singh, ASG a/w Mr. Parag A. Vyas and Mr. H.V Mehta for the Respondent No. 1-UOI.
  • Mr. Vinay S. Masurkar a/w Mrs. M.V Masurkar and Mr. S.G Thakur for the Respondent No. 2.
Judges
  • A.S Oka
  • A.A Sayed, JJ.
Acts
See more information ...
Smart Summary

Structured Summary of the Legal Opinion

Factual and Procedural Background

The matter arises from a Contempt Petition alleging breach of a judgment and order dated 4 December 2013 delivered by a Division Bench of this Court in Public Interest Litigation No. 106 of 2010. The Petitioners had originally sought a writ of mandamus directing Respondents to appoint persons with disabilities to Indian Administrative Service (IAS) posts by applying section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the "Disabilities Act"), by promotion from State Civil Services or by selection from gazetted posts in connection with state affairs.

The Division Bench's 4 December 2013 order relied in part on the Supreme Court's decision dated 8 October 2013 in Union of India v. National Federation of Blind (Civil Appeal No. 9096 of 2013), specifically referring to paragraph 54 (and paragraph 51 was relied upon before the Division Bench). Paragraphs 12 and 13 of the Division Bench's order (reproduced in the opinion) directed that reservation benefits be given to persons with disabilities in promotion to IAS posts by applying the Office Memorandum dated 29 December 2005 and subsequent office memoranda consistent with the Supreme Court's 8 October 2013 decision.

The Contempt Petition alleged failure by the Union of India to provide reservation for persons with disabilities in promotional posts. The Union of India, in reply, relied on a later Supreme Court judgment dated 1 September 2015 in Contempt Petition (Civil) No. 499 of 2014 and contended that the 8 October 2013 decision had been explained, precluding the implementation of the Division Bench's paragraph 13 direction insofar as it related to promotions.

Legal Issues Presented

  1. Whether the respondents committed contempt by failing to implement the Division Bench's directions of 4 December 2013 relating to reservation for persons with disabilities in promotional posts (specifically IAS promotions) as effected through the Office Memorandum dated 29 December 2005 and subsequent OMs.
  2. Whether paragraph 51 of the Supreme Court's judgment dated 8 October 2013 (regarding computation of reservation for persons with disabilities in Group A, B, C and D posts) requires provision of reservation in promotional posts or is confined to the manner of computing vacancies.
  3. Whether, in light of the Supreme Court's subsequent clarification in its order dated 1 September 2015 (Contempt Petition (Civil) No. 499 of 2014), the Division Bench's paragraph 13 direction can be implemented insofar as it deals with reserving promotions for persons with disabilities.

Arguments of the Parties

Petitioners' Arguments

  • Reliance on the Supreme Court judgment dated 8 October 2013, particularly paragraph 51, which the Petitioners interpreted as prescribing computation and implementation of reservation for persons with disabilities (including in promotions).
  • Assertion that while computing reservation for Group A, B, C and D posts, the Respondents committed an error and did not compute reservations in terms of paragraph 51 of the 8 October 2013 judgment.
  • Submission that the subsequent Supreme Court order dated 1 September 2015 did not clarify (or alter) the requirement in paragraph 51 concerning computation and thus the Division Bench's directions must be scrupulously implemented.

Respondent's (Union of India) Arguments

  • Reliance on the Supreme Court's judgment dated 1 September 2015 in Contempt Petition (Civil) No. 499 of 2014 which, the Union contended, explained the earlier 8 October 2013 judgment and altered the scope of its directions.
  • Submission (recorded through the learned Attorney General) based on sub-section (2) of section 47 of the Disabilities Act that there is no other provision in the Act dealing with promotions; accordingly the Act cannot be read as mandating reservation in promotions on the basis of sub-section (2) of section 47 alone.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Union of India v. National Federation of Blind, Civil Appeal No. 9096 of 2013 (8 October 2013) Directed computation of 3% reservation for persons with disabilities "on total number of vacancies in the cadre strength" for Group A, B, C and D posts; struck down clauses of OM dated 29.12.2005 inconsistent with that reasoning and directed issuance of new OMs consistent with the decision. (See paragraph 51 and paragraph 54 as quoted.) The court interpreted paragraph 51 as being confined to the manner of computation of reservation for Group A–D posts (computing 3% on total cadre vacancies) and relied on the Supreme Court's directions in paragraph 54 as the basis for the Division Bench's earlier order (4 December 2013). However, the court contrasted paragraph 51's computational focus with the question of reservation in promotions.
Supreme Court order in Contempt Petition (Civil) No. 499 of 2014 (1 September 2015) Provided an explanation of the 8 October 2013 judgment, clarifying that paragraph 51 relates to computation of vacancies and does not direct provision of reservation in promotional posts; recorded submissions regarding lack of statutory provision for reservation in promotions (reference to s.47(2) of Disabilities Act). The court found that this clarification precludes implementing paragraph 13 of the Division Bench order dated 4 December 2013 insofar as it sought to give reservation benefits in promotions by applying the OM dated 29.12.2005. The opinion concluded that no contempt could be based on alleged failure to provide reservation in promotions, in view of the Supreme Court's clarification.

Court's Reasoning and Analysis

The court proceeded by closely comparing three documents: (i) the Supreme Court's judgment dated 8 October 2013 (particularly paragraph 51 and paragraph 54), (ii) the Division Bench's order dated 4 December 2013 (notably paragraph 13), and (iii) the Supreme Court's subsequent order dated 1 September 2015 in Contempt Petition (Civil) No. 499 of 2014 which explained the earlier decision.

Step-by-step analysis as contained in the opinion:

  1. Paragraph 51 of the 8 October 2013 judgment was quoted and analysed. On plain reading, paragraph 51 was held to be confined to the manner of computing the 3% reservation for persons with disabilities in Group A, B, C and D posts—specifically "computing 3% reservation on total number of vacancies in the cadre strength." The court emphasized that paragraph 51 concerns computation, not the creation of a statutory right to reservation in promotions.
  2. The Division Bench's paragraph 13 (4 December 2013) directed that benefits of reservation be given in promotion to IAS posts by applying the OM dated 29 December 2005 and subsequent OMs consistent with the Apex Court's 8 October 2013 judgment. The Contempt Petition alleged non-implementation of that direction with respect to promotions.
  3. The court referred to the Supreme Court's 1 September 2015 decision in Contempt Petition No. 499/2014, where the Apex Court recorded that the grievance in that contempt matter included absence of reservation in promotions and that the Attorney General submitted there was no provision in the Disabilities Act (except s.47(2)) dealing with promotion reservations. The Apex Court explained paragraph 51 of its earlier judgment as relating to computation of vacancies across Groups A–D, and expressly held that paragraph 51 could not be construed as issuing a direction to provide reservation in promotional posts.
  4. Applying that clarification, the court concluded that the Division Bench's paragraph 13 cannot be implemented insofar as it purports to give reservation benefits in promotions to IAS posts by applying the 29 December 2005 OM, because the Supreme Court's later clarification shows paragraph 51 did not mandate reservation in promotion.
  5. Consequently, the court determined that no contempt action can be initiated on the ground that reservation for promotion had not been provided, given the Apex Court's clarification. The court also noted that the specific grievance about identification of posts and computation of vacancies in Groups A–D was not specifically raised in the Contempt Petition before it, and therefore it declined to adjudicate that grievance; it left open the petitioners' alternative remedies.

Holding and Implications

Decision: The Contempt Petition is disposed of. The court found that no case is made out for initiating contempt proceedings against the Respondents based on the allegation that reservation had not been provided in the matter of promotion.

Implications:

  • Direct effect: The court will not initiate contempt proceedings against the Respondents on the basis that they failed to provide reservation in promotions to persons with disabilities, because the Supreme Court's clarification dated 1 September 2015 establishes that paragraph 51 of the 8 October 2013 judgment relates only to computation of vacancies and does not direct reservation in promotional posts.
  • Specific portions of the Division Bench's order dated 4 December 2013 (notably paragraph 13) cannot be implemented insofar as they direct giving reservation benefits in promotions to IAS posts by applying the Office Memorandum dated 29 December 2005, in light of the Supreme Court's clarification.
  • Other grievances (such as identification of posts in Groups A–D and computation of vacancies) were not specifically agitated in the Contempt Petition; the court did not adjudicate them but granted the Petitioners liberty to pursue those grievances by representation to the appropriate authority or by filing appropriate proceedings in accordance with law.
  • No new legal precedent was created by this opinion; the decision rests on interpreting and applying the Supreme Court's earlier judgments and its subsequent clarification.

This summary is based exclusively on the content of the provided opinion and does not add or infer information beyond what appears in the text.

Show full summary ...

    National Confedration For Development Of Disabled & Anr. Petitioners v. Union Of India & Ors. S

    1. Heard learned Counsel appearing for the Petitioners and learned ASG for the first Respondent.

    2. The breach alleged is of judgment and order dated 4 December 2013 passed by a Division Bench of this Court in the Public Interest Litigation No. 106 of 2010 which was disposed of by the said judgment and order dated 4 December 2013. A prayer was made by the present Petitioners for issuing a writ of mandamus directing the Respondents to appoint persons with disabilities in terms of section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short “the Disabilities Act”) in Indian Administrative Service posts to be filled up either by promotion from the State Civil Services or by selection from the persons who hold gazetted posts in connection with the affairs of the state but are not members of the State Civil Services. It appears that a reliance was placed before the Division Bench on a decision of Apex Court dated 8 October 2013 in the case of Union of India v. National Federation of Blind in Civil Appeal No. 9096 of 2013. Perhaps reliance was placed before the Division Bench on the observations made in paragraph 51 of the said decision dated 8 October 2013. In paragraph 12 of the judgment and order dated 4 December 2013, the Division Bench referred to the paragraph 54 of the judgment and order dated 8 October 2013 passed by the Apex Court which contains the directions issued by the Apex Court. The Public Interest Litigation (PIL) was disposed of in terms of paragraph 13 by the order dated 4 December 2013. For the sake of convenience, we reproduce paragraphs 12 and 13 which read thus:

    “12. The Supreme Court has given following directions to the Government of India to ensure proper implementation of the reservation policy for the disabled and to protect their rights:“

    “54. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:

    (i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29-12-2005 and the subsequent Oms consistent with this Court's Order within three months from the date of passing of this judgment.

    (ii) We hereby direct the “appropriate Government” to compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons within a period of three months from today and implement the same without default.

    (iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default.”

    13. In view of the above directions, it is clear that the respondents will have to give benefits of reservation to persons with disabilities in the matter of promotion to posts in the Indian Administrative Services by applying the Office Memorandum dated 29 December 2005 and subsequent Office Memorandum consistent with the aforesaid judgment dated 8 October 2013 of the Supreme Court and accordingly give benefits of the reservation with effect from the date of issuance of the said Office Memorandum dated 29 December 2005.”

    3. From the averments made in the Contempt Petition and in particular in paragraph 9 and grounds I and II, the allegation appears to be about the failure of the Union of India to provide for reservation for persons with disabilities in the promotional posts. In the Reply filed by the Union of India, reliance is placed on the judgment and order dated 1 September 2015 passed by the Apex Court in Contempt Petition (Civil) No. 499 of 2014. It is contended that the judgment and order dated 8 October 2013 has been subsequently explained by the Apex Court and in view of the said explanation, now the direction contained in paragraph 13 of the judgment and order dated 4 December 2013 cannot be implemented.

    4. The learned Counsel appearing for the Petitioners invited our attention to the judgment and order dated 8 October 2013 passed by the Apex Court and in particular paragraph 51 thereof. He submits that while computing the reservation for the persons with disabilities in Group A, B, C and D posts, the Respondents have committed an error and the said computation is not in terms of the judgment and order dated 8 October 2013 passed by the Apex Court. He urged that in the subsequent order dated 1 September 2015, the Apex Court had issued no clarification on this aspect. He, therefore, submitted that the directions in paragraph 51 of the judgment and order dated 8 October 2013 will have to be scrupulously implemented.

    5. We have given careful consideration to the submissions. It will be appropriate if we make a reference to paragraph 51 of the judgment and order dated 8 October 2013 passed by the Apex Court. Paragraph 51 reads thus:

    “51) Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., “computing 3% reservation on total number of vacancies in the cadre strength” which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court.”

    6. On plain reading of paragraph 51, the directions are confined to computation of reservation for the persons with disabilities in the Group A, B, C and D posts. We have already quoted paragraph 13 of the judgment and order dated 4 December 2013 of the Division Bench of which breach is alleged. The direction contained in paragraph 13 is for giving benefits of the reservation to the persons with disabilities in the matter of promotion to the posts of Indian Administrative Services by applying Office Memorandum dated 29 December 2005 and subsequent Office Memorandum consistent with the judgment and order dated 8 October 2013 of the Apex Court.

    7. Now it will be necessary to advert to the judgment and order of the Apex Court in Contempt Petition (Civil) No. 499 of 2014. The breach alleged before the Apex Court was of the same directions contained in paragraph 54 of the judgment and order dated 8 October 2013 which we have quoted above. In paragraph 3 of the judgment and order dated 1 September 2015, the Apex Court has clearly recorded that the grievance before the Apex Court was that the Union of India has committed the breach of the order dated 8 October 2013 by not making provision for reservation in promotion and also by not identifying the posts against which the persons with disabilities can be appointed and in not making such appointments. The Intervener supported the said submission by contending that even reservation in promotional posts will have to be provided. In paragraph 6 of the judgment and order dated 1 September 2015, the Apex Court has recorded the submission of the learned Attorney General of India appearing for Union of India. The submission was based on sub section 2 of section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short “Disabilities Act”).

    8. The contention of the learned Attorney General was that except for sub-section 2 of section 47, there was no other provision under the Disabilities Act dealing with the promotions and, therefore, on the strength of sub section 2 of section 47 of the Disabilities Act, it cannot be contended that the Act provides for reservation in the matter of promotion. In paragraphs 9 and 10 of the judgment and order dated 1 September 2015, the Apex Court has dealt with issue of reservation in promotion. In paragraph 10 of the judgment and order dated 1 September 2015, the Apex Court has explained paragraph 51 of the earlier judgment and order dated 8 October 2013 by observing that what is observed in paragraph 51 is about the manner of computation of vacancies in case of all the Groups viz. A, B, C and D posts. That is the reason why the Apex Court declined to initiate any action for contempt on the basis of allegations that there is no provision made for the reservation of persons with disabilities in promotion. In terms the Apex Court observed that what is held in paragraph 51 of the judgment and order dated 8 October 2013 cannot be construed to mean that there is a direction issued to provide for the reservation for the persons with disabilities even in the promotional posts.

    9. In view of the clarification issued by the Apex Court under the order dated 1 September 2015 in Contempt Petition (Civil) No. 499 of 2014, now the directions contained in paragraph 13 of the judgment and order dated 4 December 2013 cannot be implemented in so far as the same deal with giving benefit of reservation to the persons with disabilities in the matter of promotion to the posts in the Indian Administrative Service by applying the Office Memorandum dated 29 December 2005.

    10. Therefore, on the basis of allegations made in the Contempt Petition, no action can be initiated on the ground that the reservation had not been provided in the matter of promotion.

    11. The grievance made by the learned Counsel appearing for the Petitioner regarding the identification of the posts in Group A, B, C and D and computation of vacancies is not specifically agitated in the Contempt Petition. In short, the contention is that what is held by the Apex Court in paragraph 51 of the judgment and order dated 8 October 2013 as clarified by the order dated 1 September 2015 has not been implemented. As this grievance has not been made in the Contempt Petition, we are not making any adjudication on the said grievance. Notwithstanding disposal of the Contempt Petition it will be open for the Petitioners to make the said grievance either by making representation to the appropriate authority or by filing appropriate proceedings in accordance with law.

    12. Subject to what is observed above, we find that no case is made out for initiating the action for contempt of Court against the Respondents on the basis of allegations of breach of the judgment and order dated 4 December 2013. Therefore, we dispose of the Contempt Petition subject to the liberty granted to the Petitioners which is set out above.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    National Confedration For Development Of Disabled & Anr. Petitioners v. Union Of India & Ors. S
    (Jun 22, 2016)