In a landmark case argued by the Disability Law Initiative, the Supreme Court on 30th June 2016 held as illegal Government of India instructions disallowing reservation in promotion for persons with disabilities, and said that wherever posts are identified to be suitable for disabled persons, 3% reservation must be given in direct recruitment as well as in promotion. The case, argued by Rajan Mani, Advocate of the Disability Law Initiative, in coordination with the Human Rights Law Network, represents success in a hard fought battle waged by persons with disabilities for equal opportunity and representation in the higher echelons of Government. Hitherto, disabled persons were likely to stagnate at the lower levels of the organizational hierarchy, as their promotion to higher level posts was made difficult because of their physical disadvantage.
In the instant case, Rajeev Kumar Gupta and seven other disabled persons serving as engineers in Prasar Bharti made the grievance that the higher level Group A and B posts in the engineering cadre were filled only by promotion. Although these posts were identified as suitable for persons with disabilities, the Government was denying them 3% reservation in these posts, which amounted to defeating the intent and purpose of reservation provided for in the Persons with Disabilities Act, 1995 (“the 1995 Act”). The Petitioners challenged the Office Memorandum dated 29.12.2005 of Government of India, which prohibited reservation in promotion for disabled persons in Group A and B posts.
Before the Supreme Court, the Government of India reiterated its stand that reservation in promotion for disabled persons was impermissible, quoting the Indra Sawhney judjment of 1992. The Court, however, did not find favour with this reasoning, and opined that the object of the 1995 Act was to ensure social integration of persons with disabilities through 3% reservation in employment. The Court, noting that the representation of persons with disabilities in Government jobs was admittedly very low, held as illegal the Government instructions of 29.12.2005, and said that wherever a Government post is identified to be suitable for persons with disabilities, 3% reservation must be provided, irrespective of whether recruitment is direct or by promotion.
Arguments in the Case:
Arguing for the Petitioners, the Disability Law Initiative submitted to the Court that Section 32 of the 1995 Act requires the Government to identify posts suitable for persons with disabilities, for the purpose of reservation. Section 33 of the said Act further provides that three percent of all vacancies arising in Government and public sector posts must be reserved for disabled persons, and the reservation is to be effected in the posts identified as suitable for them.
By its notification dated 18th January 2007, an Expert Committee set up by the Ministry of Social Justice and Empowerment, Government of India, identified an exhaustive list of more than 1000 Group A and B posts as suitable for the respective three categories of persons with disabilities i.e. hearing, visual and orthopedic impaired persons. To its credit, the Expert Committee took a very progressive view of the issue, and noting the availability of technology based aids and appliances, identified a wide array of jobs, including administrative, financial, scientific, technical and teaching posts in Government that were suitable for persons with disabilities.
The Petitioners pointed out to the Court that by the 18th January 2007 notification, the Group A and B engineering cadre posts in Prasar Bharti, i.e. Assistant Engineer, Station Engineer, Superintendent Engineer and Chief Engineer stood identified for persons with disabilities. According to Prasar Bharti rules, these posts were only to be filled by promotion, which the Petitioners aspired to. Therefore, the Petitioners argued, as per Sections 32 and 33 of the 1995 Act, three percent reservation must be made in these posts, and the Petitioners ought to be considered for promotion against such reserved posts.
The Petitioners also brought to the notice of the Court a 2012 article in the Indian Express newspaper disclosing information, obtained under the Right to Information Act, that disabled persons constituted only about 0.21 % of the Government work force. The Petitioner’s contended that without the benefit of reservation in promotion, the lawful requirement of 3% reservation could never be attained, since a majority of the Group A and B posts were filled by promotion only.
The Government of India and Prasar Bharti strongly opposed the Petitioners’ claim. They stated to the Court that for Group A and B Posts, the Office Memorandum dated 29.12.2005 provided for reservation for persons with disabilities only in direct recruitment but not in promotion. They also reiterated their stand that reservation in promotion for disabled persons was impermissible, according to the judgment of the Supreme Court in the 1992 case of Indra Sawhney. In that case, the Court had said that Article 16(4) of the Constitution of India, while permitting reservation in appointments for backward classes of persons, did not allow reservation in promotion, as that would result in inefficiency in administration.
Supreme Court Opinion:
The Court supported the stand taken by the Petitioner’s and did not find favour with Government of India reasoning. The Court opined:
“Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1)…..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 the PWD .…”
“The 1995 Act was enacted to fulfill India’s obligations under the ‘Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region’. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress. The intent is to turn PWD into ‘agents of their own destiny’ .….”
“It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act….. 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….”
“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.”
The judgment, Rajeev Kumar Gupta vs. Union Of India, Civil Writ Petition No. 521 / 2008, can be downloaded here.
All inquiries may be directed to the Disability Law Initiative, who along with the Human Rights Law Network, argued for the petitioners before the Court.