As readers may recall, in a case argued by the Disability Law Initiative (Rajeev Kumar Gupta Vs. Union of India), the Supreme Court had decided on June 30, 2016 that wherever a promotional post was identified to be suitable for a person with disability, all public sector employers were to provide the benefit of 3% reservation in promotion to their disabled employees. This was a landmark judgment for the disability sector and provided a measure of relief for disabled persons from stagnating at the lower levels of the organization.
However, despite this judgment, the Central Government and most State Governments and Public Sector Undertakings have not been providing any reservation in promotion to their disabled employees. In fact, the Central Government issued a notification on 15th January, 2018 setting out the norms to be followed in implementing the 4% reservation for public sector employees, provided in Section 34 of the new Rights of Persons with Disabilities Act, 2016, which came into force last year. In that notification, procedures have been laid down for providing reservation for disabled persons in direct recruitment only. There is no mention at all of reservation in promotion. Although most State Governments and PSUs are following this line, there are some State Governments such as those of Haryana, UP, Punjab, Goa, AP and Chattisgarh that have issued notifications providing for reservation in promotion for disabled employees in their cadres.
There is indication that the Central Government is avoiding implementing the Rajeev Kumar Gupta judgment, by claiming that the issue is again “sub-judice” (i.e., under judicial consideration) in the Supreme Court in the case of Siddaraju Vs. State of Karnataka. In that case a disabled employee of the Karnataka Government approached the Karnataka High Court, seeking the benefit of reservation in promotion. The High Court dismissed his case in March 2016, before the SC judgment in Rajeev Kumar Gupta’s case . He appealed before the Supreme Court, and on January 5th, 2017, a two judge bench presided over by Justice Adarsh Kumar Goel referred the matter to a larger (i.e. three judge) bench. Justice Goel’s bench felt that the Government’s contention that reservation in promotion was constitutionally impermissible, according to the 1992 SC judgment in Indra Sawhney’s case, deserved further consideration. This point had already been considered in Rajive Kumar Gupta’s case, wherein the two judge bench of the Court had held that the bar against reservation in promotion in the Indra Sawhney judgment did not apply to persons with disabilities. Therefore, the matter was referred to the three judge bench headed by the Chief Justice of India, and is pending for final hearing.
Analysis and Opinion:
Any Supreme Court judgment is in force unless overturned by a larger bench of the Court. Siddaraju’s case is still pending hearing before the three judge bench. Therefore, at the present time the SC judgment in Rajeev Kumar Gupta’s case is very much in force. The Central Government’s stand that it need not follow the Rajeev Kumar Gupta judgment because the matter is “sub-judice” appears to be illegal. Therefore, refusal of any Government or Public Sector Undertaking to provide the benefit of reservation in promotion to their disabled employees can be challenged in the appropriate Court.
The above is a general analysis and opinion. It is not legal advice in any particular case and should not be taken as such. Legal advice should be taken from a qualified and competent legal professional in the particular facts and circumstances of a given case. Advocates for Public Justice Foundation shall not be responsible for viewer’s decisions resulting from the content on this website.