Point of Law: Disability - Reservation in promotion - Internal Committee of respondent No. 2 has applied its mind to post of Executive Engineer, Mechanical and Electrical, and has opined that in said post, reservation for physically disabled will not be possible for reason given therein.

JUDGMENT

R.F. Nariman, J. - This batch of cases before the Court has come to us on a reference made by a Division Bench of this Court dated 03.02.2017. The reference order reads as follows:

"Delay condoned. Leave granted.

Question which has arisen in this case is whether persons, governed under "The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995", can be given reservation in promotion. A view has been taken by this Court in Rajiv Kumar Gupta & Others vs. Union of India & Others (2016) 6 SCALE 417 in the affirmative.

Mr. Ranjit Kumar, learned Solicitor General, points out that the prohibition against reservation in promotion laid down by the majority in Indra Sawhney & Others vs. Union of India & Others (1992) Supp. 3 SCC 215 applies not only to Article 16(4) but also 16(1) of the Constitution of India and inference to the contrary is not justified.

Persons suffering from disability certainly require preferential treatment and such preferential treatment may also cover reservation in appointment but not reservation in promotion.

Section 33 of the 1995 Act is required to be read and construed in that background.

We find merit in the contention that the matter needs to be considered by the larger Bench.

Accordingly, we direct the matter be placed before Honble the Chief Justice for appropriate orders.

Union of India is at liberty to file its affidavit within one week from today."

2. Parliament passed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 being Act 1 of 1996. The statement of objects and reasons for the said Act states that a Conference held at Beijing, China, in December, 1992 had adopted the Proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region India being a signatory to the said proclamation found it necessary to enact a suitable legislation to provide for the special care that is necessary to remove discrimination against persons with disabilities and to make special provision for the integration of such persons into the social mainstream.

3. Section 2(i) of the said Act defines "disability" as follows:-

"(i) "disability" means --

(i) blindness;

(ii) low vision;

(iii) leprosy-cured;

(iv) hearing impairment;

(v) locomotor disability;

(vi) mental retardation;

(vii) mental illness;"

Section 2(t) defines "person with disability" as follows:-

"(t) "person with disability" means a person suffering from not less than forty per cent of any disability as certified by a medical authority;"

4. The Act then provides for Central and State Coordination Committees and prevention and early detection of disabilities. We are directly concerned with Chapter VI of the Act which deals with identification and reservation of posts for the purpose of employment. These Sections state as follows:-

"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.

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 each shall he reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the posts identified for each 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."

5. In Uni