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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1567 OF 2017

SIDDARAJU    Appellant(s)

VERSUS

STATE OF KARNATAKA & ORS.   Respondent(s)

WITH

REVIEW PETITION (C) NO. 36 OF 2017 IN

CIVIL APPEAL NO. 5389 OF 2016

CIVIL APPEAL NO. 300 OF 2020 (Arising out of SLP (C) No. 11632 of 2017)

CIVIL APPEAL NO. 299  2020 (Arising out of SLP (C) No. 21197 of 2017)

CIVIL APPEAL NO. 310 2020 (Arising out of SLP (C) No. 4650 of 2019)

CIVIL APPEAL NO. 6092 OF 2019

CIVIL APPEAL NO. 6095 OF 2019

J U D G M E N T

R.F. Nariman, J.

1) 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.

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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 v. 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 v.  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 Hon’ble 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

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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  Co-

ordination 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

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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 Union of India and Another vs. National Federation

of the Blind and Others, (2013) 10 SCC 772, this Court went

into the provisions of the aforesaid Act in some detail and,

in particular, Sections 32 and 33.  The Court considered

Office  Memorandum  dated  29.12.2005  of  the  Government  of

India, which stated that the quantum of reservation would be

as follows:-

“2. QUANTUM OF RESERVATION  

(i)  Three  percent  of  the  vacancies  in  case  of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which  one  per  cent  each  shall  be  reserved  for persons  suffering  from  (i)  blindness  or  low vision,  (ii)  hearing  impairment  and (iii) locomotor disability or cerebral palsy in the posts identified for each disability;  

(ii) Three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direct recruitment, if any, does

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not exceed 75%, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor  disability  or  cerebral  palsy  in  the posts identified for each disability.  

The Court then held as follows:

“39) It has also been submitted on behalf of the appellants  herein  that  since  reservation  of persons with disabilities in Group C and D has been in force prior to the enactment and is being made against the total number of vacancies in the cadre  strength  according  to  the  OM  dated 29.12.2005 but the actual import of Section 33 is that  it  has  to  be  computed  against  identified posts  only.  This  argument  is  also  completely misconceived in view of the plain language of the said Section, as deliberated above.  Even for the sake  of  argument,  if  we  accept  that  the computation of reservation in respect of Group C and D posts is against the total vacancies in the cadre strength because of the applicability of the scheme of reservation in Group C and D posts prior to enactment, Section 33 does not distinguish the manner of computation of reservation between Group A and B posts or Group C and D posts respectively. As  such,  one  statutory  provision  cannot  be interpreted and applied differently for the same subject-matter.  

40)  Further,  if  we  accept  the  interpretation contended by the appellants that computation of reservation has to be against the identified posts only,  it  would  result  into  uncertainty  of  the application of the scheme of reservation because experience has shown that identification has never been uniform between the Centre and the States and even between the Departments of any Government. For example, while a post of middle school teacher has been notified as identified as suitable for the  blind  and  low  vision  by  the  Central Government, it has not been identified as suitable for the blind and low vision in some States such as Gujarat and J&K, etc. This has led to a series of litigations which have been pending in various High Courts.  In addition, Para 4 of the OM dated 29.12.2005  dealing  with  the  issue  of

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identification  of  jobs/posts  in  sub  clause  (b) states that list of the jobs/posts notified by the Ministry of Social Justice & Empowerment is not exhaustive which further makes the computation of reservation uncertain and arbitrary in the event of  acceptance  of  the  contention  raised  by  the appellants.  

42) A perusal of Indra Sawhney would reveal that the ceiling of 50% reservation applies only to reservation in favour of other Backward classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution.  In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 812 of the judgment clearly brings out that after selection  and  appointment  of  candidates  under reservation  for  persons  with  disabilities  they will  be  placed  in  the  respective  rosters  of reserved category or open category respectively on the basis of the category to which they belong and,  thus,  the  reservation  for  persons  with disabilities  per se has nothing to do with the ceiling  of  50%.  Para  812  is  reproduced  as follows:-  

“812.  ……all  reservations  are  not  of  the  same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as  'vertical  reservations'  and  'horizontal reservations'.  The  reservations  in  favour  of Scheduled  Castes,  the  Scheduled  Tribes  and  the other backward classes [under Article 16(4)] may be  called  vertical  reservations  whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to  as  horizontal  reservations.  Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more  precise,  suppose  3%  of  the  vacancies  are reserved  in  favour  of  physically  handicapped persons; this would be a reservation relatable to Clause (1) of Article 16.  The persons selected against  this  quota  will  be  placed  in  the appropriate  category;  if  he  belongs  to  S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open  competition  (O.C.)  category,  he  will  be placed  in  that  category  by  making  necessary

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adjustments.  Even  after  providing  for  these horizontal  reservations,  the  percentage  of reservations  in  favour  of  backward  class  of citizens remains - and should remain - the same……”

Having concluded thus, the Court then held:

“50) Employment is a key factor in the empowerment and inclusion of people with disabilities. It is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and  practical  barriers  that  prevent  them  from joining the workforce. As a result, many disabled people  live  in  poverty  and  in  deplorable conditions.  They are denied the right to make a useful contribution to their own lives and to the lives of their families and community.  

51) The Union of India, the State Governments as well as the Union Territories have a categorical obligation  under  the  Constitution  of  India  and under various International treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today.  

52) Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in  case  of  Group  A,  B,  C  and  D  posts  in  an identical manner viz., “computing 3% reservation on  total  number  of  vacancies  in  the  cadre strength”  which  is  the  intention  of  the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate  Government  to  issue  new  Office Memorandum(s)  consistent  with  the  decision rendered by this Court.  

53)  Further,  the  reservation  for  persons  with disabilities has nothing to do with the ceiling of 50% and hence,  Indra Sawhney is not applicable with respect to the disabled persons.”  

6) Certain directions were then made in the end of the

judgment to ensure proper implementation of the reservation

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policy for the disabled and to protect their rights.

7) We may mention that, pursuant to this Court’s judgment,

the Union of India issued Office Memorandum dated 03.12.2013

in which it made only one change in the Office Memorandum

dated 29.12.2015 as follows:-

“5. Keeping in view the directions of the Hon’ble Supreme Court, Para 14 of the OM dated 29.12.2005 is modified to the following extent:

“Reservation  for  persons  with  disabilities  in Group ‘A’ or Group ‘B’ posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in all the Group ‘A’ posts  or  Group  ‘B’  posts  respectively,  in  the cadre.”

Contempt petitions were filed stating that the directions

contained in this judgment have not been carried out, which

is not the subject-matter before us.  These petitions have

been ordered to be listed after the decision in these cases.

8) The next important judgment that needs to be adverted

to in this behalf is the judgment in National Federation of

the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and

Training, 2015 (9) Scale 611, in para 10 of which para 51 of

the earlier judgment was clarified as follows:-

“10. Para 51 of the order on which reliance has been placed by Shri Rungta must be viewed in the context of the questions arising for answer before the  Court  i.e.  the  manner  of  computation  of vacancies in case of Groups A, B, C and D posts. All that the Court in the aforesaid paragraph 51 has held is that the manner of such identification must be uniform in the case of all the groups viz. A, B, C and D.  Nothing beyond the above should be read  in  paragraph  51  of  the  Courts’  order  as aforesaid.”

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9) We now come to the Division Bench judgment of this

Court reported as Rajeev Kumar Gupta & Others v. Union of

India & Others – (2016) 13 SCC 153.  In this judgment, the

posts in Prasar Bharati were classified into four Groups–A

to D.  The precise question that arose before the Court is

set out in para 5 thereof in which it is stated that the

statutory benefit of 3 per cent reservation in favour of

those who are disabled is denied insofar as identified posts

in Groups A and B are concerned, since these posts are to be

filled  through  direct  recruitment.   After  noticing  the

arguments based on the nine-Judge bench in Indra Sawhney vs.

Union of India, 1992 Supp (3) SCC 217, this Court held:

“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  law  as  interpreted  by  this  Court  in Southern Railway 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 reser- vations could be permitted in matters of promotion under  Article  16(4). The  majority  held  that reservations in promotion are not permitted under our constitutional scheme.  

15. The respondent argued that the answer to Que- tion  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.  Indra Sawhney ruling arose in the context  of  reservations  in  favour  of  backward

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

xxx xxx

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 the 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) 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 laid down in Indra Sawhney has clearly and normatively no application to PWD.

The Court then concluded:

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  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.”

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10) After hearing learned counsel appearing on behalf of

all the parties including the learned Additional Solicitor

General, we are of the view that the judgment of this Court

cannot be faulted when it stated that  Indra Sawhney dealt

with a different problem and, therefore, cannot be followed.

11) We may also note that review petitions were filed and

have since been dismissed against both the 2013 and 2016

judgments.  Consequently, the reference stands answered by

stating  that the  2013 judgment  as clarified  in  National

Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of

Personnel and Training, 2015 (9) Scale 611 and the judgment

in Rajeev Kumar Gupta & Others v. Union of India & Others –

(2016) 13 SCC 153 case will bind the Union and the State

Governments and must be strictly followed notwithstanding

the  Office  Memorandum  dated  29.12.2005,  in  particular.

Since  the  reference  has  been  disposed  of  by  us  today,

contempt petitions be listed for hearing.

Civil Appeal No. 1567 OF 2017:

12) Application  for  impleadment  in  C.A.  1567/2017  is

allowed.

13) This matter arises out of the order of the Central

Administrative  Tribunal,  Bangalore  Bench,  Bangalore  dated

24.07.2015 in which the 2005 O.M has been followed without

reference to any of the judgments of this Court.  A writ

petition from the aforesaid judgment was dismissed by the

Karnataka High Court on 23.03.2016, stating that the precise

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question of law that arises in this case was kept open.

Accordingly,  we  set  aside  the  judgment  of  the  CAT  and

consequently that of the High Court.  The case is to be

governed  by  the  three  decisions  of  this  Court  outlined

above, which judgments have to be followed by the Union of

India  and  the  States.  It  is  not  necessary  to  pass  any

further directions.  The appeal is disposed of accordingly.

Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389  of 2016:

14) Delay is condoned.

15) This  matter  stands  dismissed  in  view  of  today’s

judgment.

SLP (C) No. 11632 of 2017:

16) Leave granted.

17) The  impugned  judgment  of  the  High  Court  dated

22.06.2016 in this appeal, after referring to the judgment

of  this  Court  in  National  Federation  of  the  Blind vs.

Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015

(9) Scale 611 arrived at the following conclusion:

“8. The contention of the learned Attorney General was that except for sub-section 2 of Section  47,  there  was  no  other  provision under the Disabilities Act dealing with the promotions and, therefore, on the strength of sub-section  2  of  Section  47  of  the Disabilities Act, it cannot be contended that the  Act  provides  for  reservation  in  the matter of promotion.  In paragraphs 9 and 10 of the judgment and order dated 1st September, 2015, the Apex Court has dealt with issue of reservation in promotion.  In paragraph 10 of the judgment and order dated 1st September,

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2015, the Apex Court has explained paragraph 51 of the earlier judgment and order dated 8th

October,  2013  by  observing  that  what  is observed in paragraph 51 is about the manner of computation of vacancies in case of all the Groups viz. A, B, C and D posts.  That is the  reason  why  the  Apex  Court  declined  to initiate any action for contempt on the basis of  allegations  that  there  is  no  provision made  for  the  reservation  of  persons  with disabilities in promotion.  In terms the Apex Court observed that what is held in paragraph 51  of  the  judgment  and  order  dated  8th

October,  2013  cannot  be  construed  to  mean that there is a direction issued to provide for  the  reservation  for  the  persons  with disabilities even in the promotional posts.

9. In view of the clarification issued by the Apex  Court  under  the  order  dated 1st September,  2015  in  Contempt  Petition (Civil) No. 499 of 2014, now the directions contained in paragraph 13 of the judgment and order  dated  4th December,  2013  cannot  be implemented  insofar  as  the  same  deal  with giving benefit of reservation to the persons with disabilities in the matter of promotion to  the  posts  in  the  Indian  Administrative Service  by  applying  the  Office  Memorandum dated 29th December, 2005.”

Consequently, the High Court held that no action can be

initiated  in  the  contempt  petition  on  the  ground  that

reservation  had  not  been  provided  in  the  matter  of

promotion.  We may hasten to add that this is not a correct

reading  of  the  law  laid  down  by  this  Court.   National

Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of

Personnel and Training, 2015 (9) Scale 611 was a judgment in

a contempt petition in which the contention taken up by the

petitioner was repelled by stating that para 51 of the 2013

judgment has held that the manner of identification of posts

of all groups must be uniform and nothing beyond.  After the

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declaration of the law in  Rajeev Kumar Gupta & Others v.

Union of India & Others – (2016) 13 SCC 153 it is now clear

beyond doubt that the O.M. of 2005 cannot be given effect to

when it is in the teeth of the 2016 judgment.  On the basis

of this judgment, the impugned judgment is set aside and the

contempt petition is restored to the file.  The petition be

disposed of on merits.The appeal is disposed of accordingly.

SLP (C) No. 21197 of 2017:

18) Leave granted.

19) In view of our judgment today, the appeal is dismissed.

SLP (C) No. 4650 of 2019:

20) Leave granted.

21) Having heard learned senior counsel for the appellant

at some length, we may note that paragraph 4(C) of the

counter affidavit states as follows:  

“(C) That Chhattisgarh State Power Holding Company Ltd. has appointed a committee for identification of the post upon which reservation in promotion will be applicable.  The said Committee in its meeting held on 10.01.2017 decided that the post of Executive Engineer, Mechanical and Electrical in transmission, distribution  and  generation  companies  where  the Executive Engineer has to visit sites and perform various acts personally, it is not advisable to keep such post under reservation.  However, reservation will  be  applicable  in  promotion  to  the  post  of Executive Engineer, Computer Science, Information & Technology and Civil Engineering.  The said decision of the company has not been challenged till date and thus  binding  on  all  the  employees  as  per  the provisions of Rights of Persons with Disabilities Act, 2016.  On this ground also the Special Leave Petition  filed  by  the  Petitioner  is  not maintainable.”

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22) It is clear that the Internal Committee of respondent

No.  2  has  applied  its  mind  to  the  post  of  Executive

Engineer, Mechanical and Electrical, and has opined that in

the said post, reservation for the physically disabled will

not be possible for the reason given therein.   

23) Learned  senior  counsel  appearing  on  behalf  of  the

appellant  has  pointed  out  that  as  per  the  Gazette

Notification dated 31.05.2001, it is an Expert Committee

that has to identify, keeping in view the provisions of the

Persons with Disabilities (Equal Opportunities, Protection

of Rights and Full Participation) Act, 1995, and Section 32

in  particular,  suitable  posts  for  persons  with

disabilities, and this has not been done in the present

case.  Since this point has not been argued in any of the

cross  appeals,  we  reserve  liberty  to  the  appellant  to

challenge  the  Internal  Committee’s  findings  on  grounds

available to them in law.  Apart from this, the impugned

judgment does not call for interference.  The appeal is

disposed of accordingly.

24) Needless  to  add  if  such  a  challenge  succeeds,  the

three judgments pointed out by us in the Judgment in the

lead matter, i.e., Civil Appeal No. 1567 of 2017 will have

to be applied and followed.

Civil Appeal No. 6092 of 2019:

25) The  appeal  is  dismissed  in  accordance  with  today’s

judgment.  Interim order dated 08.07.2019 stands vacated.

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It has been contended before us that there are only 2 Group

‘A’  posts  available/identified  as  a  result  of  which  the

reservation will have to be worked in accordance with the

roster system.  We may only clarify that we have not, in any

manner, indicated as to how such system should be worked.

Civil Appeal No. 6095 of 2019:

26) The appeal is dismissed in view of today’s judgment.

   .......................... J.

       (ROHINTON FALI NARIMAN)

                     .......................... J.   (ANIRUDDHA BOSE)

                     .......................... J.   (V. RAMASUBRAMANIAN)

New Delhi; January 14-15, 2020.