Legal Challenges in Implementing Reservation in Promotion for PwBDs
The Office Memorandum from the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, Government of India, dated 26 April 2023, highlights the need for compliance with the orders given by the Hon’ble Courts regarding reservation in promotions to Persons with Benchmark Disabilities (PwBD).
It instructs all Ministries/Departments to examine cases where the Hon’ble Court has given directions, implement them within the given time frame or seek legal remedy in consultation with the Department of Legal Affairs.
The Department of Personnel and Training is the nodal Department that formulates policies on service matters, and instructions on reservation matters must be followed scrupulously by the Ministries/Departments of the Central Government.
Litigation involving reservation in promotion to Persons with Benchmark Disabilities (PwBD)
No. 36012/1/2020-Estt. (Res-II)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel and Training
ESTT.(Estt. Reservation-II)
North Block, New Delhi – 110 001
Dated 26 April, 2023
OFFICE MEMORANDUM
Subject:- Litigation involving reservation in promotion to Persons with Benchmark Disabilities (PwBD)-regarding
The undersigned is directed to say that in pursuance of the Order, dated 28.9.2021 delivered by the Hon’ble Supreme Court of India in the ‘Application for Clarification’ in the matter of ‘Siddaraju vs. State of Karnataka’ in the Civil Appeal No.1567/2017 and in pursuance of the provisions contained in Section 34 of the Rights of Persons with Disabilities Act, 2016, this Department has issued detailed guidelines for providing reservation in promotions to Persons with Benchmark Disabilities (PwBDs) vide O.M. No.36012/1/2020-Estt (Res.-II), dated 17.5.2022. However, before the issuance of the aforesaid O.M., dated 17.5.2022, certain contempt petitions had been filed by some affected parties. In addition, there are certain Orders given by Hon’ble High Courts and Hon’ble Supreme Court of India directing the Government to implement their orders in the matter of reservation in promotion for PwBDs. There may be some other cases also which may have been filed by the affected parties in various Courts before the issuance of the aforementioned O.M., dated 17.5.2022, and some directions might have been issued by different courts which have not been brought to the notice of this Department.
- It is stated that the judgment/orders given by the Hon’ble Courts are required to be complied with within the time frame given by the Hon’ble Courts. In case, any Department finds any difficulty in implementing the order of the Hon’ble Court, the Department is required to consult the Department of Legal Affairs in the matter and file a suitable affidavit before the Court of Law within time bringing out the difficulties being faced by it in implementing the said order. However, it is not appropriate to neither implement the Order of the Hon’ble Court nor to bring it to the notice of the Hon’ble Court within the time frame indicating the difficulty in implementing the order in such case. In one such case, it has come to the notice of this Department that neither the order of the Hon’ble Court was implemented nor any legal remedy was sought on the said order, which invited the displeasure of the Hon’ble Court.
- In view of the above, all the Ministries/Departments of the Government of India, including their attached/subordinate offices, CPSEs, autonomous bodies and other organizations are requested to ensure that all such cases, where the Hon’ble Court has given some directions, may be examined for implementation of the same and in case of any difficulty in implementing such orders of the Hon’ble Courts, appropriate legal remedy may be obtained in consultation with Department of Legal Affairs within the time frame provided by the Hon’ble Court and submit an affidavit before the Hon’ble Court explaining the difficulty in implementing the orders passed by the Hon’ble Court.
- It is also stated that this Department has issued instructions to all the Ministries/Departments regarding handling of Court cases by them, vide OM No. 28027/1/2016-Estt. A.III, dated 16.03.2016 (copy enclosed). It is reiterated that the Department of Personnel and Training is the nodal Department that formulates policies on service matters and issues instructions on reservation matters from time to time. These instructions are to be followed by the Ministries/Departments of the Central Government scrupulously. All the Court cases filed by employees have to be defended on the basis of the facts available with the Administrative Ministry/Department concerned, keeping in view the instructions issued on the subject by this Department. Attention is also invited to the Cabinet Secretariat’s D.O letter, dated 25.02.1994, and 16.06.2016 (copies enclosed), addressed to all the Secretaries to the Government of India, requesting that a common counter reply may be filed in each case, unless otherwise directed by the Court, so that the different Departments do not take divergent positions/individual interpretation in court cases.
- This issues with the approval of Secretary (P).
Encls. As above.
(Sign of Authority)
Debabrata Das
Under Secretary to the Government of India
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