The case came before the Supreme Court when the petitioner who was person with disability and was employed in Prasar Bharti, filed a petition against the memorandum of government which deprived him the statutory benefit of promotion.
Facts those led to this Petition
Under the regulations framed under the 1990 Act, various posts (falling in groups A to D) in Prasar Bharati were 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 were 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’ were concerned, since these posts, under relevant regulations of Prasar Bharati were to be filled up exclusively through direct recruitment.
The Arguments of the petitioner
The Petitioner argued that, 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.
The Petitioner further argued that, the embargo on reservation in promotion laid down by Supreme Court Indra Sawhney & Others v. Union of India & Others, 1992 Supp (3) SCC 215 is not applicable to PWD.
The Arguments of the Respondents
On the other hand, the respondents argued 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.
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.
The Analysis by the Supreme Court
After hearing the contentions of both sides, the court while analyzing the case, said,
Backward classes contemplated under Article 16(4) were the socially and educationally backward classes of citizens. In Devadasan[1], it was held by Supreme 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 that Article 16(4) is not an exception to the Rule in Article 16(1) but it is an “instance of (such) classification”.
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.
Supreme 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 of reservations that could be provided under Article 16(4) were the main issues before Supreme Court. It is in this context, Supreme Court held that reservation in the context of promotions to higher posts under the State were constitutionally impermissible.
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.
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 laid down in Indra Sawhney has clearly and normatively no application to the PWD.
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. The intent is to turn PWD into ‘agents of their own destiny’. PWD were not and cannot be equated with backward classes contemplated under Article 16(4). May be, certain factors were common to both backward classes and PWD such as social attitudes and historical neglect etc.
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.
In light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act.”
[1] T. Devadasan v. Union of India and Anr., AIR 1964 SC 179