2022: the year reservation in promotion finally happened
By Rajan Mani and Ritu Kumar, Disability Law Initiative
December 28, 2022
Public sector employees with disabilities have for long been fighting to get the benefit of reservation in promotion to higher posts. Without that, the inherent biases of their employers, as well as lack of reasonable accommodation of their needs, prevent their career progression on par with others. The year 2022 saw the successful culmination of this battle, when, prodded by the Supreme Court, the Government of India finally issued instructions to provide for reservation in promotion for persons with disabilities all over India.
Read about the battle-scarred pathway leading to this landmark outcome, along with Court decisions and Government instructions, below.
The Persons with Disabilities Act, 1995 heralded equal opportunity in employment
In 1995, following its obligations under the UN sponsored “Asia-Pacific Decade for the Disabled”, 1993-2002, the Indian Parliament enacted the first Disabilities Act in India. In the area of employment, it provided for the Government to identify public sector jobs that were suitable for persons with disabilities, and to provide a reservation quota of 3% while filling up these jobs. The social justice ministry of the Central Government took a progressive view, and in 2001 published a long list of the identified jobs. However, implementation of the reservation by the different departments and public sector units was spotty for several years. It was only the sustained legal activism on the part of the disability community that got the Central and State governments to get serious about implementing reservation at the point of induction into their cadres.
But, what about equal opportunity in career progression?
The question arose, did the reservation quota apply to posts filled by promotion? Certainly, the Disabilities Act did not restrict the reservation quota only to the posts filled by induction (also known as direct recruitment). The Central Government, however, took an inconsistent stand, saying that reservation in promotion was only available in the lower echelons of government jobs such as clerical “Group C” and manual skill “Group D” jobs, but not in the executive “Group A” and “Group B” jobs. The Government explained away this inconsistency by saying that reservation in promotion for Group C and D jobs pre-dated the 1995 Disabilities Act, whereas the Act itself did not provide for reservation in promotion in Government jobs.
The landmark Supreme Court judgment in the case of Rajeev Kumar Gupta
In 2008, Rajeev Kumar Gupta, an engineering assistant with orthopedic disability at Prasar Bharti Corporation (the parent organization of AIR and Doordarshan) sought and was denied the benefit of reservation in promotion to the higher engineering cadres, on the ground that these were executive level Group A and B posts. He approached the Supreme Court of India, saying that such denial was in violation of the Disabilities Act, 1995. The Disability Law Initiative, representing Mr. Gupta, argued that the posts in question were identified for persons with orthopedic disabilities and so reservation must follow. In June 2016, a two-judge bench of the Supreme Court, led by then Justice Chelameswar, came out with a landmark judgment in Rajeev Kumar Gupta’s case that rejected the Government’s position that reservation in promotion for persons with disabilities was impermissible under our Constitution. The Court noted that the presence of persons with disabilities in Government jobs was abysmally low, especially in Group A and B posts. The Court further noted that whereas a large number of Group A and B posts were identified as suitable for persons with disabilities, most of these were filled only by promotion from the lower cadres. Therefore, the reservation in promotion quota of 3% must be applied, else the intent and purpose of reservation provided for in the Persons with Disabilities Act would be defeated. The Court therefore directed the Government to extend 3% reservation to persons with disabilities in all identified posts in Group A and B, irrespective of the mode of filling up of such posts.
Euphoria, followed by disappointment
The sigh of relief and satisfaction in the disability community was short lived. It so happened that just prior to the 2016 Supreme Court judgment in Rajeev Kumar Gupta’s case, the Karnataka High Court had rejected the petition of Siddaraju, a disabled employee of the Karnataka Government, to be given the benefit of reservation in promotion to the Indian Administrative Service. On Siddaraju’s appeal to the Supreme Court, the Central Government represented by the Solicitor General of India, argued before a different two judge bench that the Rajeev Kumar Gupta judgment was erroneous and that the issue of whether reservation in promotion for persons with disabilities was permissible under the Constitution ought to be referred to a larger bench of judges for re-examination. Much to the dismay of the disability community, in February 2017, the latter SC bench agreed to refer the question to a three-judge bench. In this manner, the question settled in Rajeev Kumar Gupta’s case in June 2016 was re-opened in Siddaraju’s case, barely six months later.
Disability law prevails, again, in Siddaraju’s case
The Government immediately halted all reservations in promotions for persons with disabilities, even though the Supreme Court’s judgment in Rajeev Kumar Gupta’s case was the law of the land so long as the matter was pending before the three-judge bench in Siddaraju’s case. In the meanwhile, the Disability Law Initiative, representing Petitioners Syed Ghouse Basha and Poonam Manchanda, joined the case. Finally in January 2020 the three-judge bench hearing the matter, led by then Justice Rohinton Nariman, affirmed the Rajeev Kumar Gupta case as the correct law with regard to reservation in promotion for persons with disabilities. The Court did not agree with the Government’s main contention that the Constitution of India in Article 16 (4) did not allow for reservation in promotion. The Court said that reservation in favour of the backward classes was under Article 16(4) of the Constitution of India whereas reservation in favour of persons with disabilities was under Article 16(1) of the Constitution. Article 16(4) did not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserved such treatment. Consequently, the three- judge bench held that “…the judgment in Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153, will bind the Union and the State Governments and must be strictly followed.”
But the Government was not yet to be outdone. Rather than implementing the Rajeev Kumar Gupta judgment, in October 2020 during the lockdown the Government filed an “application for clarification” before the Supreme Court in Siddaraju’s case. The Disability Law Initiative, representing another employee with a disability, Satyaveer Singh Dagur, opposed the Government’s application and brought to the notice of the Court that even the new 2016 Disabilities Act mandated the Government to issue instructions to implement reservation in promotion but nothing had been done in this regard for over 5 years. Finding merit in this stand, the Court dismissed the Government’s application on September 28, 2021 and directed that suitable instructions be issued by the Central Government within three months. Following which, the May 2022 instructions of the Central Government providing for reservation in promotion have come to be.