Case: SIDDARAJU Vs. THE STATE OF KARNATAKA

The reference order reads asion 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.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 notsuffering 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 thatfind merit in the contention that the matter needs to be considered by the largerwe direct the matter be placed before Hon?ble the Chief Justice for appropriateof India is at liberty to file its affidavit within one week from today.?

Reasoning:
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 thesejudgment 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 asPara 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.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 CourtWe 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.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.We do not agree with the respondent?s submission. Indra Sawhney ruling arose in the context of reservations in favour of backward classes of citizens falling within the sweep of Article. 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 to24. 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. 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.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.We may also note that review petitions were filed and have since been dismissed against both the 2013 and 2016 judgments.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 followingThe 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 1 st September, 2015, the Apex Court has dealt with issue of reservation in promotion. In paragraph 10 of the judgment and order dated 1 st September, 2015, the Apex Court has explained paragraph 51 of the earlier judgment and order dated 8 th 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 8 th 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.In view of the clarification issued by the Apex Court under the order dated 1 st September, 2015 in Contempt Petition (Civil) No. 499 of 2014, now the directions contained in paragraph 13 of the judgment and order dated 4 th 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 29 th December,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 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.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.