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SUPREME COURT OF INDIA
J. Chelameswar, Abhay Manohar Sapre, JJ.
Rajeev Kumar Gupta & Others – Petitioners
Versus
Union of India & Others – Respondents
Writ Petition (Civil) No. 521 of 2008 With Civil Appeal No. 5389 of 2016 (Arising out of SLP (Civil) No. 244 of 2016)
Decided On : 30-06-2016
(b) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Section 32 – Government of India identifying posts suitable for PWD – Includes some posts in Group A and B for which mode of recruitment is only through promotions – Once posts are identified, mode of recruitment which results in denial of statutory reservation cannot be adopted – It would be a device to defraud PWD of the statutory benefit under Section 33. (Para 12, 13)
(c) Service law – Reservation – In promotion – Article 16, Constitution of India – There is no bar under Article 16(4) on providing differential treatment (reservations) to other classes of citizens under Article 16(1) – However, such treatment on the basis of caste, religion etc. is forbidden 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) – PWD are not and cannot be equated with backward classes contemplated under Article 16(4). (Para 21, 22)
1992 Supp (3) SCC 215 – Distinguished
AIR 1962 SC 36; AIR 1964 SC 179 – Referred
(d) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Sections 32 and 33 – Identification exercise under Section 32 is crucial – After identification reservation as provided must follow irrespective of mode of recruitment adopted for filling up of the said post. (Para 24)
Facts of the case:
The petitioners are employed with Prasar Bharati Corporation of India. The petitioners are ‘persons with disability’ as defined under Section 2(t) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
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 issued by the Department of Personnel and Training, Government of India on the ground 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.
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.
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, it provides for three per cent reservation in IDENTIFIED POSTS falling in Groups ‘C’ and ‘D’ irrespective of the mode of recruitment i.e. whether by direct recruitment or by promotion. As a consequence, the statutory benefit of three per cent reservation in favour of PWD is denied insofar as IDENTIFIED POSTS in Groups ‘A’ and ‘B’ are concerned, since these posts, under relevant regulations of Prasar Bharati are to be filled up exclusively through direct recruitment.
The crux of the issue is legality of denial by the impugned memoranda of the statutory benefit of three per cent reservation in IDENTIFIED POSTS falling in Groups A and B.
Finding of the Court:
Impugned memoranda are illegal and inconsistent with the 1995 Act.
Result: Writ petition allowed and Civil Appeal No. 5389 of 2016 disposed of.
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,
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