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Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL/APPELLATE JURISDICTION

WRIT PETITION (CIVIL)  No.521 OF 2008

Rajeev Kumar Gupta & Others                 …            Petitioners

Versus

Union of India & Others                        …            Respondents

WITH

CIVIL APPEAL NO. 5389 OF 2016 (Arising out of SLP (Civil) No.244 of 2016)

J U D G M E N T

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

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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 Act1.

After such identification, the ‘appropriate Government’2 is mandated

1 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.  2 The term ‘appropriate Government’ is defined under Section 2(a) of the 1995 Act.   

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under  Section  333 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, 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.

3 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.  

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6. The  crux  of  the  issue  before  us  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.   Such

denial, the petitioners contend, violates the State’s obligation under

Sections 32 and 33 of the 1995 Act and subverts of the object of the

said Act enacted by Parliament inter alia to secure opportunities for

full participation of PWD in matters of employment.

7. It  is  relevant  to  notice  the  history  and  background  of  the

impugned memoranda. After enactment of the 1995 Act, impugned

memorandum-I  was  issued  purporting  to  extend  the  benefit  of

reservation to certain IDENTIFIED POSTS falling in Groups A and B,

which under relevant regulations of Prasar Bharati  are to be filled

only through direct recruitment.   This memorandum was followed by

several others (examination of each of them is not necessary for our

present  purpose)  leading  to  significant  confusion  regarding  the

intendment of the Government of India with respect to reservation to

PWD candidates. The impugned memorandum II was issued to clarify

government’s understanding of the problem.  The legality (correctness

of  the  government’s  understanding  of  the  law)  of  impugned

memorandum-II is the issue for our consideration.

8. The petitioners argued,

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(i)  A large number of IDENTIFIED POSTS in Groups A and B

are  filled  only  through  promotion.  Because  of  the  impugned

memoranda, the benefit of reservation under Section 33 of the

1995 Act is denied w.r.t. those posts.  Petitioners therefore lose

out on a significant amount of opportunity at the upper end of

the organizational hierarchy.  It cannot be the respondent’s case

that  the  petitioners  are  unfit  by  virtue  of  their  disability  to

perform  the  functions  of  office  in  the  IDENTIFIED  POSTS.

Such posts are already identified to be suitable to be filled up

with PWD.  Classification among the PWD on the basis of the

mode  of  recruitment  is  discriminatory  and  the  same  has  no

nexus to the objects sought to be achieved either by the 1995

Act or the recruitment.   Government of India has created an

arbitrary  and  irrational  distinction  by  excluding  IDENTIFIED

POSTS in Groups A and B from the benefit of three per cent

reservation.  

(ii)  That the embargo on reservation in promotions laid down

by this court in Indra Sawhney & Others v. Union of India &

Others,  1992 Supp (3) SCC 215 (hereinafter, referred to as the

‘Indra Sawhney case’) is not applicable to PWD.  

9. The respondents argued4  4 All the respondents adopted the counter affidavit filed on 9.7. 2010 by respondents 4 to 8

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(i) that  the mandate of  Section 33 of  the 1995 Act applies

only  when the  identified  posts  are  sought  to  be  filled  up  by

direct  recruitment.  Impugned memorandum-II  only  contains  a

policy decision of the Government of India by which reservation

is granted to Group C and Group D posts even when they are

sought to be filled up by the mode of promotion. Since the policy

decision  restricted  the  reservation  in  promotion  to  identified

Group C and Group D posts, the petitioners have no right to

demand  reservation  in  promotion  to  identified  Group  A  and

Group B posts.  

(ii) The respondents further argued that Indra Sawhney case

clearly ruled that reservations be confined to recruitment at the

initial level of recruitment into government service and not at

the stage of promotions.  Providing for reservation in higher level

posts  is  constitutionally  impermissible.   The  respondents,

therefore,  argued that in light of  the law laid down in  Indra

Sawhney, it is constitutionally impermissible that petitioners to

be given three per cent reservation in promotions for identified

Group A and Group B posts.  

10. Whether any post under the State is to be reserved for being

filled  up  exclusively  by  some  persons  belonging  to  any

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“constitutionally deserving” class of persons or otherwise is a matter

of policy choice of the State.  Such a policy is either laid down by a

statute  or  executive  orders.  Various  factors  are  to  be  taken  into

consideration  for  framing  any  policy  such  as   the  nature  of

responsibilities which a particular post carries, the number of posts

available in that class and the representation already existing in that

class of posts for persons of the class to which reservation is sought

to be provided and myriad other things.  

11. But such factors ought to be germane to purposes sought to be

achieved by the policy apart from being relevant in the context of the

scheme  of  Articles  14  and  16  of  the  Constitution.   The  same

principles of law apply even to the question, as to the mode of filling

up of any post or class of posts. 12. The policy of the State w.r.t. the issue on hand is regulated

by the  1995 Act.  It  authorises  (under  Section 32)  the  appropriate

Government to identify the posts suitable to be filled up by PWD. The

Government of India has exercised the power and identified the posts

vide  the  NOTIFICATON.  The  NOTIFICATION  includes  some  of  the

posts in Group A and Group B.5  

5 The following entries in the identification notification are indicative of this fact- entry nos. 285, 289, 291, 363, 366, 379, 535, 547, 555 and 72 in the Group A list and entry nos. 67, 70 and 120.      

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13. For some of these IDENTIFIED POSTS in Group A and Group B,

the mode of recruitment is only through promotions.6  The purpose

underlying the statutory exercise of identification under Section 32 of

the  1995  Act  would  be  negated  if  reservation  is  denied  to  those

IDENTIFIED POSTS by stipulating that  either all  or  some of  such

posts are to be filled up only through the mode of promotion.  It is

demonstrated before us that PWD as a class are disentitled to some

of the IDENTIFIED POSTS in Groups A and Group B because of the

impugned memoranda and the relevant regulations, under which the

only mode of appointment to those IDENTIFIED POSTS is through

promotion. Once posts are identified under Section 32, the purpose

behind  such  identification  cannot  be  frustrated  by  prescribing  a

mode of recruitment which results in denial of statutory reservation.

It would be a device to defraud PWD of the statutory benefit under

Section 33 of the 1995 Act.  

14. We  now  examine  the  applicability  of  the  prohibition  on

reservation in promotions as propounded by  Indra Sawhney. Prior

to Indra Sawhney, reservation in promotions were permitted under

6 The petitioner annexed replies obtained through RTI at pages 119-122 of the writ petition. A perusal of the annexed documents leaves no doubt that there are several identified posts for which the  only possible  mode of recruitment under the regulations of Prasar Bharati is promotion.

The recruitment mode of several posts such as senior engineering assistant (Group B post), Assistant engineer (Group B post), Station engineer (Group A post); Superintending engineer (Group A post) and Chief engineer (Group A post) is through 100% promotion. There are some other posts such Assistant station engineer (Group A post) for which recruitment is 50% by direct recruitment and 50% by promotions.  

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law as  interpreted by  this  Court  in  General  Manager,  Southern

Railway  &  Another v. Rangachari,  AIR  1962  SC  36.  Indra

Sawhney specifically  overruled  Rangachari to  the  extent  that

reservations in promotions were held in Rangachari to be permitted

under Article 16(4) of the Constitution.  Indra Sawhney specifically

addressed   the   question   whether   reservations could be permitted

in matters of promotion under Article 16(4)7.  The majority held8 that 7See Question No. 7 framed in Hon’ble B.P. Jeevan Reddy, J.’s Judgment in Indra Sawhney case;  

“7.  Whether  clause  (4)  of  Article  16  provides  reservation  only  in  the  matter  of  initial appointments/direct recruitment or does it contemplate and provide for reservations being made in the matter of promotion as well?”    

8 Para 828. “We see no justification to multiply ‘the risk’, which would be the consequence of holding that reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career. That would mean creation of a permanent  separate category apart  from the mainstream — a vertical division of the administrative apparatus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, compete and excel among them. Whether they work or not, they  tend  to  think,  their  promotion  is  assured.  This  in  turn  is  bound to  generate  a  feeling  of  despondence  and ‘heart-burning’ among open competition members. All this is bound to affect the efficiency of administration. Putting the members of backward classes on a fast-track would necessarily result in leap-frogging and the deleterious effects of “leap-frogging” need no illustration at our hands. At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that these members too compete with others and earn promotion like all others; no further distinction can be made thereafter with reference to their “birth-mark”, as one of the learned Judges of this Court has said in another connection. They are expected to operate on equal footing with others. Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of administration nor in the larger interest of the nation. It is wrong to think that by holding so, we are confining the backward class of citizens to the lowest cadres. It is well-known that direct recruitment takes place at several  higher levels of administration and not merely at the level of Class IV and Class III. Direct recruitment is provided even at the level of All India Services. Direct recruitment is provided at the level of District Judges, to give an example nearer  home. It may also be noted that during the debates in the Constituent Assembly, none referred to reservation in promotions; it does not appear to have been within their contemplation”.  

Para 829. “It is true that Rangachari [(1962) 2 SCR 586: AIR 1962 SC 36] has been the law for more than 30 years and that attempts to re-open the issue were repelled in Karamchari Sangh [(1981) 1 SCC 246, 289: 1981 SCC (L&S) 50: (1981) 2 SCR 185, 234]. It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the Central and State services but we are convinced that the majority opinion  in Rangachari [(1962)  2  SCR  586:  AIR  1962  SC  36]  to  the  extent  it  holds,  that  Article  16(4)  permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking  into  consideration  all  the  circumstances,  we  direct  that  our  decision  on  this  question  shall  operate  only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion — be it Central Services  or State Services,  or  for  that  matter  services  under any corporation,  authority or  body falling under the definition of ‘State’ in Article 12 — such reservations shall continue in operation for a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or re-issue the relevant Rules to  ensure  the  achievement  of  the  objective  of  Article  16(4).  If  any  authority  thinks  that  for  ensuring  adequate representation of ‘backward class of citizens’ in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it do so”.  

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reservations in promotion are not permitted under our constitutional

scheme. 15. The  respondent  argued  that  the  answer  to  Q.7  in  Indra

Sawhney  squarely  covers  the  situation  on hand and the  reasons

outlined  by  the  majority  opinion  in  Indra Sawhney  at  para  828

must  also  apply  to  bar  reservation  in  promotions  to  IDENTIFIED

POSTS of Group A and Group B.  

16. We do not agree with the respondent’s submission. The Indra

Sawhney ruling arose  in  the  context  of  reservations  in  favour  of

backward classes of citizens falling within the sweep of Article 16(4).  

17. Backward  classes  contemplated  under  Article  16(4)  are  the

socially  and  educationally  backward  classes  of  citizens.  In

Devadasan9, it  was  held  by  this  Court  that  Article  16(4)  is  an

exception to the principle contained in Article 16(1).  However, Subba

Rao, J., in his dissent opined that Article 16(4) is not an exception to

Article  16(1)  but  an  emphatic  way  of  expressing  the  principle

inherent  in  Article  16(1).   This  dissenting  opinion  later  found

approval  in  the  majority  decision  in  State  of  Kerala  v.  N.M.

Thomas,  (1976) 2 SCC 310.  Finally, in Indra Sawhney, a 9-judge

Bench by majority (speaking through Jeevan Reddy,  J.)  confirmed

9 T. Devadasan v. Union of India and Anr., AIR 1964 SC 179

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that Article 16(4) is not an exception to the Rule in Article 16(1) but it

is an “instance of (such) classification”10

18. The  principle  is  that  the  State  shall  not  discriminate  (which

normally includes preference) on the basis of any one of the factors

mentioned in Article 16(1). Though under the doctrine of “reasonable

classification”, it has always been held that State can identify classes

of people who have distinct characteristics or disadvantages and treat

them separately under law.  Having regard to the history, the social

and  demographic  context  of  our  nation,  the  Constitution  framers

thought  it  appropriate  to  enable  the  State  under  Article  16(4)  to

identify  citizens  for  preferential  treatment  for  the  purpose  of

employment under the State.

19. This Court in Indra Sawhney was dealing with the action of the

State  in  providing  reservation  in  employment  under  the  State  to

various classes of  citizens,  identified by the State  to be backward

classes.  The process of such identification and the nature and extent 10  Indra Sawhney’s case.   

Para 741. …  We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations  to  treat  unequally  situated  persons  unequally.  Not  doing  so,  would  perpetuate  and  accentuate inequality. Article  16(4) is  an  instance  of  such  classification,  put  in  to  place  the  matter  beyond  controversy. The "backward  class  of  citizens"  are  classified  as  a  separate  category  deserving  a  special  treatment  in  the  nature  of reservation of appointments/posts in the services of the State. Accordingly, we hold that Clause (4) of Article 16 is not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1).  … It is a provision which must be read along with and in harmony with clause (1). Indeed, even without Clause (4), it would have been permissible for the State to have evolved such a classification and made a provision for reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific terms.

A Constitution Bench of this Court in M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC 212 reiterated the position in Indra Sawhney.  See Para 112.  

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of reservations that could be provided under Article 16(4) were the

main issues before this Court. It is in this context, this Court held

that reservation in the context of promotions to higher posts under

the State are constitutionally impermissible.  

20. To remove the basis of the rule propounded in Indra Sawhney

case, Parliament  enacted  the  Constitution  (Seventy-Seventh

Amendment) Act, 1995.  By inserting Article 16(4A), an exception is

created in favour of citizens belonging to the Scheduled Castes and

the Scheduled Tribes, from the rule laid down in Indra Sawhney.

21. The principle laid down in  Indra Sawhney is applicable only

when the State seeks to give preferential treatment in the matter of

employment under State to certain classes of citizens identified to be

a  backward  class.   Article  16(4)  does  not  disable  the  State  from

providing  differential  treatment  (reservations)  to  other  classes  of

citizens  under  Article  16(1)11 if  they  otherwise  deserve  such

treatment. However, for creating such preferential  treatment under

law, consistent with the mandate of Article 16(1), the State cannot

choose any one of the factors such as caste, religion etc. mentioned

in Article 16(1) as the basis.  The basis for providing reservation for

PWD is physical disability and not any of the criteria forbidden under

Article 16(1). Therefore, the rule of no reservation in promotions as 11 As per the Indra Sawhney case, Article 16(4) is a subset of Article 16(1).  

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laid  down  in  Indra  Sawhney  has  clearly  and  normatively  no

application to the PWD.

22. The 1995 Act was enacted to fulfill India’s obligations under the

‘Proclamation on the  Full  Participation and Equality  of  the People

with Disabilities in the Asia and Pacific Region’. The objective behind

the 1995 Act is to integrate PWD into the society and to ensure their

economic progress.12 The intent is to turn PWD into ‘agents of their

own destiny’.13   PWD are not and cannot be equated with backward

classes contemplated under Article 16(4).  May be, certain factors are

common to both backward classes and PWD such as social attitudes

and historical neglect etc.  

23. It is disheartening to note that (admittedly) low numbers of PWD

(much  below  three  per  cent)  are  in  government  employment  long

years after the 1995 Act. Barriers to their entry must, therefore, be

scrutinized by rigorous standards within the legal framework of the

1995 Act.  

24. A  combined  reading  of  Sections  32  and  33  of  the  1995  Act

explicates  a  fine  and  designed  balance  between  requirements  of

administration and the imperative to provide greater opportunities to

PWD.  Therefore,  as  detailed  in  the  first  part  of  our  analysis,  the

12 See Para 3, 4 and 5 of the Proclamation of the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region.   13 Id at Para 2.  

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identification exercise  under  Section 32 is  crucial. Once a  post  is

identified, it means that a PWD is fully capable of discharging the

functions associated with the identified post.  Once found to be so

capable, reservation under Section 33 to an extent of not less than

three per cent  must  follow. Once the post is identified, it must be

reserved for PWD irrespective of the mode of recruitment adopted by

the State for filling up of the said post.  

25. In  light  of  the  preceding  analysis,  we  declare  the  impugned

memoranda as illegal and inconsistent with the 1995 Act.  We further

direct the Government to extend three percent reservation to PWD in

all IDENTIFIED POSTS in Group A and Group B, irrespective of the

mode of filling up of such posts.  This writ petition is accordingly

allowed.  

CIVIL APPEAL NO. 5389 OF 2016 (Arising out of SLP (C) No.244 of 2016)

In view of our decision in Writ Petition (Civil) No.521 of 2008,

this Civil Appeal is also disposed of, with no order as to costs.

….………………………….J.                                                       (J. Chelameswar)

…….……………………….J.   (Abhay Manohar Sapre)

New Delhi; June 30, 2016.

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