IMPORTANT POINTS
The matter of policy for reservation of posts “constitutionally deserving” class of persons or otherwise, or mode of recruitment is choice of the State.
Stipulation that either all or some of the posts shall be filled up only through the mode of promotion amounts to denial of reservation to IDENTIFIED POSTS.
Indra Sawhney is applicable only in case of reservation to backward class and not to persons with disability.
Persons with disability are not and cannot be equated with backward classes.
Identified post must be reserved for PWD irrespective of the mode of recruitment.

JUDGMENT :

Chelameswar, J.

1. Leave granted in SLP (Civil) No. 244 of 2016.

2. The petitioners are employed with Prasar Bharati Corporation of India (hereinafter, “Prasar Bharati”), a statutory corporation brought into existence by the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter “the 1990 Act”). The petitioners are ‘persons with disability’ (hereinafter, “PWD”) as defined under Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter “the 1995 Act”). They filed this writ petition aggrieved by two office memoranda No.36035/16/91-Estt. (SCT) dated 18.02.1997 and No.36035/3/2004-Estt. (RES) dated 29.12.2005 (hereinafter impugned memorandum I and II respectively) issued by the Department of Personnel and Training, Government of India. The petitioners’ grievance is that the impugned memoranda deprive them of the statutory benefit of reservation under the 1995 Act w.r.t. Group A and Group B posts in Prasar Bharati.

3. Posts in Prasar Bharati are classified into four groups – A to D. Each group consists of a number of classes of posts and in each class there are a number of posts. Certain posts were identified by the Government of India vide notification No. 16-70/2004-DD.III dated 18.01.2007 (hereinafter, “NOTIFICATION”) as posts suitable for being filled up with PWD (hereinafter “IDENTIFIED POSTS”); an exercise in compliance with the mandate under Section 32 of the 1995 Act [Section 32-“Identification of posts which can be reserved for persons with disabilities. - Appropriate Governments shall-

(a) identify posts, in the establishments, which can be reserved for the persons with disability;

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.”

The 1995 Act was enacted on 01.01.1996 pursuant to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region adopted in the meeting convened by the Economic and Social Commission for Asian and Pacific Region at Beijing in December 1992 to launch the Asian and Pacific Decade of Disabled Persons 1993-2002. The proclamation was to ensure “opportunities for full participation and equality for people with disabilities, especially in the fields of rehabilitation, education and employment”. As a signatory to this proclamation, India passed the 1995 Act.]. After such identification, the ‘appropriate Government’ [The term ‘appropriate Government’ is defined under Section 2(a) of the 1995 Act.] is mandated under Section 33 [Section 33-“Reservation of posts. - Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent shall be reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy; in the posts identified for such disability:

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

The term “establishment" as referred to in Section 33 is defined in Section 2(k) of the 1995 Act.] to reserve not less than three per cent of IDENTIFIED POSTS in favour of PWD.

4. Under the regulations framed under the 1990 Act, various posts (falling in groups A to D) in Prasar Bharati are to be filled up by three different modes i.e. direct recruitment, promotion and some posts partly by direct recruitment and partly by promotion.

5. Memorandum II provides for reservation in favour of PWD to the extent of three per cent in all the IDENTIFIED POSTS in Prasar Bharati, when these are filled up by direct recruitment. However,