SIDDARAJU versus STATE OF KARNATAKA & ORS. on 15 January 2020

1. This batch of cases before the Court has come to us on areference made by a Division Bench of this Court dated 03.02.2017.The reference order reads as follows:

“Delay condoned. Leave granted.

Question which has arisen in this case is whether persons, governedunder “The persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995”, can begiven reservation in promotion. A view has been taken by thisCourt in Rajiv Kumar Gupta & Othersv. Union of India & Others– (2016) 6 SCALE 417 in the affirmative.

Mr. Ranjit Kumar, learned Solicitor General, points out thatthe prohibition against reservation in promotion laid down by themajority in Indra Sawhney & Othersv. Union of India & Others– (1992) Supp. 3 SCC 215 applies not only to Article 16(4) butalso 16(1) of the Constitution of India and inference to the contraryis not justified.

Persons suffering from disability certainly requirepreferential treatment and such preferential treatment may alsocover reservation in appointment but not reservation in promotion.Section 33 of the 1995 Act is required to be read and construed inthat background.

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AWe find merit in the contention that the matter needs to beconsidered by the larger Bench.

Accordingly, we direct the matter be placed before Hon’blethe Chief Justice for appropriate orders.

Union of India is at liberty to file its affidavit within oneBweek from today.”

2. Parliament passed the Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act, 1995 beingAct 1 of 1996. The statement of objects and reasons for the said Actstates that a Conference held at Beijing, China, in December, 1992 hadCadopted the Proclamation on the Full Participation and Equality of Peoplewith Disabilities in the Asia and the Pacific region India being a signatoryto the said proclamation found it necessary to enact a suitable legislationto provide for the special care that is necessary to remove discriminationagainst persons with disabilities and to make special provision for theDintegration of such persons into the social mainstream.

3. Section 2(i) of the said Act defines “disability” as follows:- “(i) “disability” means—

(i) blindness;

(ii) low vision;

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(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

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(vii) mental illness;”

Section 2(t) defines “person with disability” as follows:- “(t) “person with disability” means a person suffering from notless than forty per cent of any disability as certified by a medicalGauthority;”

4. The Act then provides for Central and State Co-ordinationCommittees and prevention and early detection of disabilities. We aredirectly concerned with Chapter VI of the Act which deals withidentification and reservation of posts for the purpose of employment.

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These Sections state as follows:-

“32. Identification of posts which can be reserved for personswith disabilities.- Appropriate Governments shall- (a) identify posts, in the establishments, which can be reservedfor the persons with disability; (b) at periodical intervals not exceeding three years, review thelist of posts identified and up- date the list taking into considerationthe developments in technology.

33. Reservation of posts.- Every appropriate Government shallappoint in every establishment such percentage of vacancies notless than three per cent for persons or class of persons withdisability of which one per cent each shall he reserved for personssuffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:

Provided that the appropriate Government may, having regard tothe type of work carried on in any department or establishment,by notification subject to such conditions, if any, as may be specifiedin such notification, exempt any establishment from the provisionsof this section.”

5. In Union of India and Anothervs. National Federation ofthe Blind and Others, (2013) 10 SCC 772, this Court went into theprovisions of the aforesaid Act in some detail and, in particular, Sections32 and 33. The Court considered Office Memorandum dated 29.12.2005of the Government of India, which stated that the quantum of reservationwould be as follows:- “2. QUANTUM OF RESERVATION

(i) Three percent of the vacancies in case of direct recruitment toGroup A, B, C and D posts shall be reserved for persons withdisabilities of which one per cent each shall be reserved forpersons suffering from (i) blindness or low vision, (ii) hearingimpairment and (iii) locomotor disability or cerebral palsy in theposts identified for each disability; A

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A(ii) Three percent of the vacancies in case of promotion to GroupD, and Group C posts in which the element of direct recruitment,if any, does not exceed 75%, shall be reserved for persons withdisabilities of which one per cent each shall be reserved for personssuffering from (i) blindness or low vision, (ii) hearing impairmentand (iii) locomotor disability or cerebral palsy in the posts identifiedBfor each disability.

The Court then held as follows:

“39) It has also been submitted on behalf of the appellants hereinthat since reservation of persons with disabilities in Group C andCD has been in force prior to the enactment and is being madeagainst the total number of vacancies in the cadre strengthaccording to the OM dated 29.12.2005 but the actual import ofSection 33 is that it has to be computed against identified postsonly. This argument is also completely misconceived in view ofthe plain language of the said Section, as deliberated above. EvenDfor the sake of argument, if we accept that the computation ofreservation in respect of Group C and D posts is against the totalvacancies in the cadre strength because of the applicability of thescheme of reservation in Group C and D posts prior to enactment,Section 33 does not distinguish the manner of computation ofEreservation between Group A and B posts or Group C and Dposts respectively. As such, one statutory provision cannot beinterpreted and applied differently for the same subject-matter.

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40) Further, if we accept the interpretation contended by theappellants that computation of reservation has to be against theidentified posts only, it would result into uncertainty of theapplication of the scheme of reservation because experience hasshown that identification has never been uniform between theCentre and the States and even between the Departments of anyGovernment. For example, while a post of middle school teacherhas been notified as identified as suitable for the blind and lowvision by the Central Government, it has not been identified assuitable for the blind and low vision in some States such as Gujaratand J&K, etc. This has led to a series of litigations which havebeen pending in various High Courts. In addition, Para 4 of theOM dated 29.12.2005 dealing with the issue of identification ofjobs/posts in sub clause (b) states that list of the jobs/posts notified F

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by the Ministry of Social Justice & Empowerment is not exhaustivewhich further makes the computation of reservation uncertainand arbitrary in the event of acceptance of the contention raisedby the appellants.

42) A perusal of Indra Sawhney would reveal that the ceiling of50% reservation applies only to reservation in favour of otherBackward classes under Article 16(4) of the Constitution of Indiawhereas the reservation in favour of persons with disabilities ishorizontal, which is under Article 16(1) of the Constitution. Infact, this Court in the said pronouncement has used the exampleof 3% reservation in favour of persons with disabilities whiledealing with the rule of 50% ceiling. Para 812 of the judgmentclearly brings out that after selection and appointment of candidatesunder reservation for persons with disabilities they will be placedin the respective rosters of reserved category or open categoryrespectively on the basis of the category to which they belongand, thus, the reservation for persons with disabilities per se hasnothing to do with the ceiling of 50%. Para 812 is reproduced asfollows:-

“812. ……all reservations are not of the same nature. There aretwo types of reservations, which may, for the sake of convenience,be referred to as ‘vertical reservations’ and ‘horizontalreservations’. The reservations in favour of Scheduled Castes,the Scheduled Tribes and the other backward classes [under Article16(4)] may be called vertical reservations whereas reservationsin favour of physically handicapped [under Clause (1) of Article16] can be referred to as horizontal reservations. Horizontalreservations cut across the vertical reservations - what is calledinter-locking reservations. To be more precise, suppose 3% ofthe vacancies are reserved in favour of physically handicappedpersons; this would be a reservation relatable to Clause (1) ofArticle 16. The persons selected against this quota will be placedin the appropriate category; if he belongs to S.C. category he willbe placed in that quota by making necessary adjustments; similarly,if he belongs to open competition (O.C.) category, he will be placedin that category by making necessary adjustments. Even afterproviding for these horizontal reservations, the percentage ofreservations in favour of backward class of citizens remains -and should remain - the same……”

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AHaving concluded thus, the Court then held:

“50) Employment is a key factor in the empowerment and inclusionof people with disabilities. It is an alarming reality that the disabledpeople are out of job not because their disability comes in the wayof their functioning rather it is social and practical barriers thatBprevent them from joining the workforce. As a result, manydisabled people live in poverty and in deplorable conditions. Theyare denied the right to make a useful contribution to their ownlives and to the lives of their families and community.

51) The Union of India, the State Governments as well as theCUnion Territories have a categorical obligation under theConstitution of India and under various International treatiesrelating to human rights in general and treaties for disabled personsin particular, to protect the rights of disabled persons. Even thoughthe Act was enacted way back in 1995, the disabled people havefailed to get required benefit until today.

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52) Thus, after thoughtful consideration, we are of the view thatthe computation of reservation for persons with disabilities has tobe computed in case of Group A, B, C and D posts in an identicalmanner viz., “computing 3% reservation on total number ofvacancies in the cadre strength” which is the intention of theElegislature. Accordingly, certain clauses in the OM dated29.12.2005, which are contrary to the above reasoning are struckdown and we direct the appropriate Government to issue newOffice Memorandum(s) consistent with the decision rendered bythis Court.

F53) Further, the reservation for persons with disabilities has nothingto do with the ceiling of 50% and hence, Indra Sawhney is notapplicable with respect to the disabled persons.”

6. Certain directions were then made in the end of the judgmentto ensure proper implementation of the reservation policy for the disabledGand to protect their rights.

7. We may mention that, pursuant to this Court’s judgment, theUnion of India issued Office Memorandum dated 03.12.2013 in which itmade only one change in the Office Memorandum dated 29.12.2015 asfollows:- “5. Keeping in view the directions of the Hon’ble Supreme Court,Para 14 of the OM dated 29.12.2005 is modified to the followingextent:

“Reservation for persons with disabilities in Group ‘A’ or Group‘B’ posts shall be computed on the basis of total number ofvacancies occurring in direct recruitment quota in all the Group‘A’ posts or Group ‘B’ posts respectively, in the cadre.”

Contempt petitions were filed stating that the directions containedin this judgment have not been carried out, which is not the subject-matter before us. These petitions have been ordered to be listed afterthe decision in these cases.

8. The next important judgment that needs to be adverted to inthis behalf is the judgment in National Federation of the Blindvs.Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9)Scale 611, in para 10 of which para 51 of the earlier judgment wasclarified as follows:- “10. Para 51 of the order on which reliance has been placed byShri Rungta must be viewed in the context of the questions arisingfor answer before the Court i.e. the manner of computation ofvacancies in case of Groups A, B, C and D posts. All that theCourt in the aforesaid paragraph 51 has held is that the manner ofsuch identification must be uniform in the case of all the groupsviz. A, B, C and D. Nothing beyond the above should be read inparagraph 51 of the Courts’ order as aforesaid.”

9. We now come to the Division Bench judgment of this Courtreported as Rajeev Kumar Gupta & Othersv. Union of India &Others– (2016) 13 SCC 153. In this judgment, the posts in PrasarBharati were classified into four Groups–A to D. The precise questionthat arose before the Court is set out in para 5 thereof in which it isstated that the statutory benefit of 3 per cent reservation in favour ofthose who are disabled is denied insofar as identified posts in Groups Aand B are concerned, since these posts are to be filled through directrecruitment. After noticing the arguments based on the nine-Judge benchin Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, thisCourt held:

“14. We now examine the applicability of the prohibition onreservation in promotions as propounded by Indra Sawhney. Prior A

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to Indra Sawhney, reservation in promotions were permitted underlaw as interpreted by this Court in Southern Railway v.Rangachari, AIR 1962 SC 36. Indra Sawhney specificallyoverruled Rangachari to the extent that reservations in promotionswere held in Rangachari to be permitted under Article 16(4) ofthe Constitution. Indra Sawhney specifically addressed thequestion whether reservations could be permitted in matters ofpromotion under Article 16(4). The majority held that reservationsin promotion are not permitted under our constitutional scheme.

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15. The respondent argued that the answer to Quetion 7 in IndraSawhney squarely covers the situation on hand and the reasonsoutlined by the majority opinion in Indra Sawhney at para 828must also apply to bar reservation in promotions to identified postsof Group A and Group B.

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16. We do not agree with the respondent’s submission. IndraSawhney ruling arose in the context of reservations in favour ofbackward classes of citizens falling within the sweep of Article16(4).

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21. The principle laid down in Indra Sawhney is applicable onlyEwhen the State seeks to give preferential treatment in the matterof employment under the State to certain classes of citizensidentified to be a backward class. Article 16(4) does not disablethe State from providing differential treatment (reservations) toother classes of citizens under Article 16(1) if they otherwisedeserve such treatment. However, for creating such preferentialFtreatment 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 basisfor providing reservation for PWD is physical disability and notany of the criteria forbidden under Article 16(1).Therefore, theGrule of no reservation in promotions as laid down in IndraSawhney has clearly and normatively no application to PWD.

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The Court then concluded:

24. A combined reading of Sections 32 and 33 of the 1995 Actexplicates a fine and designed balance between requirements ofadministration and the imperative to provide greater opportunities H

to PWD. Therefore, as detailed in the first part of our analysis,the identification exercise under Section 32 is crucial. Once apost is identified, it means that a PWD is fully capable ofdischarging the functions associated with the identified post. Oncefound to be so capable, reservation under Section 33 to an extentof not less than three per cent must follow. Once the post isidentified, it must be reserved for PWD irrespective of the modeof recruitment adopted by the State for filling up of the said post.

25. In light of the preceding analysis, we declare the impugnedmemoranda as illegal and inconsistent with the 1995 Act. Wefurther direct the Government to extend three percent reservationto PWD in all identified posts in Group A and Group B, irrespectiveof the mode of filling up of such posts. This writ petition isaccordingly allowed.”

10. After hearing learned counsel appearing on behalf of all theparties including the learned Additional Solicitor General, we are of theview that the judgment of this Court cannot be faulted when it statedthat Indra Sawhney dealt with a different problem and, therefore, cannotbe followed.

11. We may also note that review petitions were filed and havesince been dismissed against both the 2013 and 2016 judgments.Consequently, the reference stands answered by stating that the 2013judgment as clarified in National Federation of the Blindvs. SanjayKothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611and the judgment in Rajeev Kumar Gupta & Othersv. Union of India& Others– (2016) 13 SCC 153 case will bind the Union and the StateGovernments and must be strictly followed notwithstanding the OfficeMemorandum dated 29.12.2005, in particular. Since the reference hasbeen disposed of by us today, contempt petitions be listed for hearing.

Civil Appeal No. 1567 OF 2017:

12. Application for impleadment in C.A. 1567/2017 is allowed.

13. This matter arises out of the order of the Central AdministrativeTribunal, Bangalore Bench, Bangalore dated 24.07.2015 in which the2005 O.M has been followed without reference to any of the judgmentsof this Court. A writ petition from the aforesaid judgment was dismissedby the Karnataka High Court on 23.03.2016, stating that the precise AB

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Aquestion of law that arises in this case was kept open. Accordingly, weset aside the judgment of the CAT and consequently that of the HighCourt. The case is to be governed by the three decisions of this Courtoutlined above, which judgments have to be followed by the Union ofIndia and the States. It is not necessary to pass any further directions.The appeal is disposed of accordingly.B

Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of2016:

14. Delay is condoned.

15. This matter stands dismissed in view of today’s judgment.CSLP (C) No. 11632 of 2017:

17. The mpugned judgment of the High Court dated 22.06.2016 inthis appeal, after referring to the judgment of this Court in NationalDFederation of the Blindvs. Sanjay Kothari, Secy. Deptt. of Personneland Training, 2015 (9) Scale 611 arrived at the following conclusion:

“8. The contention of the learned Attorney General was that exceptfor sub-section 2 of Section 47, there was no other provision underthe Disabilities Act dealing with the promotions and, therefore, onEthe strength of sub-section 2 of Section 47 of the Disabilities Act,it cannot be contended that the Act provides for reservation in thematter of promotion. In paragraphs 9 and 10 of the judgment andorder dated 1[st] September, 2015, the Apex Court has dealt withissue of reservation in promotion. In paragraph 10 of the judgmentand order dated 1[st] September, 2015, the Apex Court has explainedFparagraph 51 of the earlier judgment and order dated 8[th] October,2013 by observing that what is observed in paragraph 51 is aboutthe manner of computation of vacancies in case of all the Groupsviz. A, B, C and D posts. That is the reason why the Apex Courtdeclined to initiate any action for contempt on the basis ofGallegations that there is no provision made for the reservation ofpersons with disabilities in promotion. In terms the Apex Courtobserved that what is held in paragraph 51 of the judgment andorder dated 8[th] October, 2013 cannot be construed to mean thatthere is a direction issued to provide for the reservation for thepersons with disabilities even in the promotional posts.H

9. In view of the clarification issued by the Apex Court under theorder dated 1[st] September, 2015 in Contempt Petition (Civil) No.499 of 2014, now the directions contained in paragraph 13 of thejudgment and order dated 4[th] December, 2013 cannot beimplemented insofar as the same deal with giving benefit ofreservation to the persons with disabilities in the matter of promotionto the posts in the Indian Administrative Service by applying theOffice Memorandum dated 29[th] December, 2005.”

Consequently, the High Court held that no action can be initiatedin the contempt petition on the ground that reservation had not beenprovided in the matter of promotion. We may hasten to add that this isnot a correct reading of the law laid down by this Court. NationalFederation of the Blindvs. Sanjay Kothari, Secy. Deptt. of Personneland Training, 2015 (9) Scale 611 was a judgment in a contempt petitionin which the contention taken up by the petitioner was repelled by statingthat para 51 of the 2013 judgment has held that the manner ofidentification of posts of all groups must be uniform and nothing beyond.After the declaration of the law in Rajeev Kumar Gupta & Othersv.Union of India & Others– (2016) 13 SCC 153 it is now clear beyonddoubt that the O.M. of 2005 cannot be given effect to when it is in theteeth of the 2016 judgment. On the basis of this judgment, the impugnedjudgment is set aside and the contempt petition is restored to the file.The petition be disposed of on merits.The appeal is disposed ofaccordingly.

SLP (C) No. 21197 of 2017:

19. In view of our judgment today, the appeal is dismissed.

SLP (C) No. 4650 of 2019:

20. Leave granted.

21. Having heard learned senior counsel for the appellant at somelength, we may note that paragraph 4(C) of the counter affidavit statesas follows:

“(C) That Chhattisgarh State Power Holding Company Ltd. hasappointed a committee for identification of the post upon whichreservation in promotion will be applicable. The said Committeein its meeting held on 10.01.2017 decided that the post of ExecutiveEngineer, Mechanical and Electrical in transmission, distribution A

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1188SUPREME COURT REPORTS

Aand generation companies where the Executive Engineer has tovisit sites and perform various acts personally, it is not advisableto keep such post under reservation. However, reservation willbe applicable in promotion to the post of Executive Engineer,Computer Science, Information & Technology and CivilEngineering. The said decision of the company has not beenBchallenged till date and thus binding on all the employees as perthe provisions of Rights of Persons with Disabilities Act, 2016.On this ground also the Special Leave Petition filed by thePetitioner is not maintainable.”

22. It is clear that the Internal Committee of respondent No. 2Chas applied its mind to the post of Executive Engineer, Mechanical andElectrical, and has opined that in the said post, reservation for thephysically disabled will not be possible for the reason given therein.

23. Learned senior counsel appearing on behalf of the appellanthas pointed out that as per the Gazette Notification dated 31.05.2001, itis an Expert Committee that has to identify, keeping in view the provisionsDof the Persons with Disabilities (Equal Opportunities, Protection of Rightsand Full Participation) Act, 1995, and Section 32 in particular, suitableposts for persons with disabilities, and this has not been done in thepresent case. Since this point has not been argued in any of the crossappeals, we reserve liberty to the appellant to challenge the InternalCommittee’s findings on grounds available to them in law. Apart fromEthis, the impugned judgment does not call for interference. The appeal isdisposed of accordingly.

24. Needless to add if such a challenge succeeds, the threejudgments pointed out by us in the Judgment in the lead matter, i.e., CivilAppeal No. 1567 of 2017 will have to be applied and followed.

FCivil Appeal No. 6092 of 2019:

25. The appeal is dismissed in accordance with today’s judgment.Interim order dated 08.07.2019 stands vacated. It has beencontended before us that there are only 2 Group ‘A’ posts available/identified as a result of which the reservation will have to beworked in accordance with the roster system. We may only clarify thatGwe have not, in any manner, indicated as to how such system should beworked.

Civil Appeal No. 6095 of 2019:

26. The appeal is dismissed in view of today’s judgment.

HAnkit Gyan