In a case decided in January, 2020, the Supreme Court held that reservations provided under the 1995 PwD Act extend to promotions as well.
Question which arose in this case was whether persons, governed under “The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” (PwD Act), can be given reservation in promotion.
The Court answered the question in the affirmative. While doing so it cited Indra Sawhney, Rajeev Kumar and other relevant cases to differentiate between reservation under Article 16(1) and Article 16(4). It pointed out that reservation of persons with disabilities is horizontal while reservation based on class/caste, etc., is vertical. It also stated that reservation applies to the full cadre strength, and not just to the identified posts. For PwDs, the Court concluded that there is no bar for reservation in promotions, and that principles laid down for Article 16(4) do not apply to reservation for persons with disabilities.
Important paras from the case are provided hereunder for the reader’s benefit.
“9) We now come to the Division Bench judgment of this Court reported as Rajeev Kumar Gupta & Others v. Union of India & Others – (2016) 13 SCC 153. In this judgment, the posts in Prasar Bharati were classified into four Groups–A to D. The precise question that arose before the Court is set out in para 5 thereof in which it is stated that the statutory benefit of 3 per cent reservation in favour of those who are disabled is denied insofar as identified posts in Groups A and B are concerned, since these posts are to be filled through direct recruitment. After noticing the arguments based on the nine-Judge bench in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, this Court held:
“14. We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari, AIR 1962 SC 36. Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reser- vations could be permitted in matters of promotion under Article 16(4). The majority held that reservations in promotion are not permitted under our constitutional scheme.
15. The respondent argued that the answer to Que- tion 7 in Indra Sawhney squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney at para 828 must also apply to bar reservation in promotions to identified posts of Group A and Group B.
16. We do not agree with the respondent’s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article 16(4).
21. 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 (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such 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.
The Court then concluded:
“24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.
25. In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed.”
10) After hearing learned counsel appearing on behalf of all the parties including the learned Additional Solicitor General, 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.
11) 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 29.12.2005, in particular. Since the reference has been disposed of by us today, contempt petitions be listed for hearing.”
SIDDARAJU Appellant(s) Vs. STATE OF KARNATAKA & ORS. Respondent(s),CIVIL APPEAL NO. 1567 OF 2017, Decided on 14th January, 2020 (Supreme Court of India).