No bar on reservation for Persons with Disability (PWDs) in Promotions

Harshit Sharma | Amity Law School, Madhya Pradesh | 24th January 2020

Siddaraju V/s. State of Karnataka & Ors. Civil Appeal No. 1567/2017

FACTS OF THE CASE

1. This appeal came as a reference been made by the Division Bench of the Hon’ble Supreme Court of India in the case of Rajiv Kumar Gupta & Ors. v. Union of India vide order dated 03.02.2017. 
2. 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.
3. 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.
4. Thus, the present appeal for consideration before the 3-judge bench of the Hon’ble Supreme Court of India and the issue was held in affirmative by the division bench of this court. 

ISSUES RAISED

1. 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.

RULING OF THE COURT/ THE COURT HELD THAT

The three-judge bench upheld the two-judge bench view that the basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1) of the Indian Constitution. The Bench also observed the following: 

1. “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. We may also note that review petitions were led 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, Secretary, Department  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.”
2. In Rajeev Gupta’s Case it was observed that, “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.”