RAJEEV KUMAR GUPTA & OTHERS versus UNION OF INDIA & OTHERS
[2016] 3 S.C.R. 407, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016) 3 S.C.R. 407 
RAJEEV KUMAR GUPTA & OTHERS 
v. 
UNION OF INDIA & OTHERS 
(Writ Petition (Civil) No.521 of2008) 
JUNE 30, 2016 
[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.) 
A 
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Persons with Disabilities (Equal Opportunities, Protection of 
Rights and Full Participation) Act, 1995 - s. 2(t) 32, 33 - Office 
Memoranda No.36035116191-Estt. (SCT) dated 18.02.1997 and 
C 
No.360351312004-Estt. (RES) dated 29.12.2005 by the Department 
of Personnel and Training, Government of India wherein disabled 
deprived of the statutory benefit of 3% reservation in identified 
post falling in Group A and B posts in Prasar Bharati Corporation 
- Legality of--' Held: Memoranda is illegal and inconsistent with 
D 
the 1995 Act -.Once a post is identified, it means that persons with 
disability-PWD is fully capable of discharging the functions 
associated with the identified post, reservation u/s. 33 to an extent 
of not less than three per cent must follow - Post must be reserved 
for PWD irrespective of the mode of recruitment adopted by the 
State for filling up of the said post - Tlws, the Government directed 
E 
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 - Prasar Bharati (Broadcasting Corporation of 
India) Act. 1990 - Office Memoranda No.36035116191-Estt. (SCT) 
dated 18.02.1997 and No.360351312004-Estt. (RES) dated 
F 
29.12.2005. 
Allowing the Writ petition and disposing of the
Civil appeal, 
the Court 
HELD: 1. The impugned memoranda as illegal and 
inconsistent with the Persons with Disabilities (Equal 
Opportunities, Protection of. Rights and Full Participation) Act, 
1995. The Government is directed to extend three percent 
reservation to PWD in all IDENTIFIED POSTS in Group A and 
Group B, irrespective of the mode of fiIJing up of such posts. 
[Para 25) [418-G] 
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SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
2.1 The submission that majority opinion in *Indra Sawlmey 
must also apply to bar reservation in promotions to IDENTIFIED 
POSTS of Group A and Group B, cannot be accepted. The *Indra 
Sawlmey ruling arose in the context of reservations in favour of 
backward classes of citizens falling within the sweep of Art. 16( 4). 
The principle laid down in *Indra Sawlmey 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. Art. 16(4) does not disable the State from 
providing differential treatment (reservations) to other classes 
of citizens u/Art. 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 u/Art. 16(1). Thus, the rule of no reservation 
in promotions as laid down in *Indra Sawlmey has clearly and 
normatively no application to the PWD. [Paras 15,16, 21] [415-
B; 416-A; 417-D-E; 418-A] 
2.2 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 arc not and cannot be 
equated with backward classes contemplated u/Art. 16(4). May 
be, certain factors are commoµ to both backward classes and 
PWD snch as social attitudes and historical neglect etc. [Para 22] 
[418-B-C] 
2.3 Admittedly low numbers of PWD (much below 3 %) are 
in government employment long years after the 1995 Act. Barriers 
to their entry must, thus, be scrutinized by rigorous standards 
withiir1he legal framework of 1995 Act. [Para 23] [418-D] 
2.4 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, the identification exercise 
under Section 32 is crucial. Once a post is identified, it means
RAJEEV KUMAR GUPTA & OTHERS v. UNION OF INDIA & 
OTHERS 
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. [Para 24) [418-D-F] 
*Indra Sawhney & Others v. Union of India & Others 
1992 Supp (3) SCC 215; General Manage1; Southern 
Railway & Another v. Rangachari AIR 1962 SC 36 : 
1962 SCR 586; T. Devadasan v. Union of India and 
Anr. AIR 1964 SC 179 : 1964 SCR 680; State of Kera/a 
v. N.M Thomas 1976 (1) SCR 906 : (1976) 2 SCC 31!) 
- referred to. 
Case Law Reference 
1992 Supp (3) sec 215 
1962 SCR 586 
- 1964 SCR 680 
1976 (1) SCR 906 
referred to 
Para 8 
referred to 
Para 14 
referred to 
Para 17 
referred to 
Para 17 
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 
521 of2008 
WITH 
C. A. No. 5389 of2016 
Basava Prabhu Patil; S. K. Rongta, Sr. Advs., Ms. Reena Singh, 
AAG, Rajan Mani, Moses Raj G. S., lrshad Ahmad, Dr. Mani sh Singhvi, 
Devanshli Kumar Devesh, Irshad Ahmad, Purushottam Sharma Tripathi, 
Mukesh Kumar Singh, Ravi Chandra Prakash, Luv Kumar, L. Nidhi 
Ram Sharma, Ranvir Singh Chillar, Sanjeev K. Saroha, Ms. Kirti Kumar, 
Prashant Singh, Rameshwar Prasad Goyal, Rajeev Sharma, Ms. 
Aishwarya Bhati, Dilip Kumar Nagar, T. Gopal, Anshul
Sharma, Gp. 
Capt. Karan Singh Bhati, Sudeep Kumar, C. D. Singh, Udit Deshpandey, 
Saurabh Prakash, Mohinder Jit Singh, Yadav Narender Singh, Nikhil 
Maj ithia, Ad vs. for the appearing parties. 
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SUPREME COURT REPORTS 
[2016] 3 S.C.R. 
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The Judgment of the Court was delivered by 
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J. CHELAMESWAR, J. I. Leave granted in SLP (Civil) No. 
244of2016. 
2. The petitioners are employed with Prasar Bharati Corporation 
oflndia (hereinafter, "Prasar Bharati"), a statutory corporation brought 
into existence b) the Prasar Bharati (Broadcasting Corporation oflndia) 
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 Oppo1iunities, Protection of Rights 
and Full Participation) Act, 1995 (hereinafter "the 1995 Act"). They 
filed this writ petition aggrieved by two office memoranda 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 thatthe 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.Ill 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• 
1 Section 32- ··Identification of posts 11·hich can be rese1Ted for persons 11ith disabilities. 
-Appropriate Governments shall-
(a) identity posts. in the establishments. which can be reserved for the persons 
with disability; 
(b) at periodical intervals not exceeding three years. review the list ot"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.
RAJEEV KUMAR GUPTA & OTHERS v. UNION OF INDIA & 
OTHERS [J. CHELAMESWAR, J.] 
After such identification, the 'appropriate Govermnent' 2 is mandated 
under Section 33' to reserve not less than three per cent ofIDENTIFIED 
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 provide.s 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. 
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 pm1icipation of PWD 
in matters of employment. 
2 The term 'appropriate Government' is defined under Section 2(a) of the 1995 Act. 
3Section 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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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, 
(i) A large number of IDENTIFIED POSTS in Groups A and B 
are filled only through promotion. Because of the impugned 
memoranda, the benefit ofreservation under Section 33 of the 
1995 Act is denied w.r.t. those posts. Petitioners therefore 
lose out on a significant amount of opp011unity 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 ofrecruitment 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 Sawlmey & Otlters v. Unio11 of I11tlia & 
Otlters, 1992 Supp (3) SCC 215 (hereinafter, referred to as 
the 'l11tlra Smvlmey case') is not applicable to PWD. 
9. The respondents argued' 
'All the respondents adopted the counter affidavit filed on 9.7.20 I 0 by respondents 4 
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RAJEEV KUMAR GUPTA & OTHERS v. UNION OF INDIA & 
OTHERS [J. CHELAMESWAR, J.] 
(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 Sawlmey case 
clearly ruled that reservations be confined to recruitment at 
the initial level ofrecruitment 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 
Sawlmey, it is constitutionally impermissible that petitioners to 
be given three per cent reservation in promotions for identified 
Group A and Group B posts. 
I 0. Whether any post under the State is to be reserved for being 
filled up exclusively by some persons belonging to any "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 
oflaw apply even to the question, as to the mode of fil I ing 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 
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A 
NOTIFICATON. The NOTIFICATION includes some of the posts in 
Group A and Group B.; 
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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.' 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 Saw/111ey. Prior to 
Indra Sawlmey, reservation in promotions were permitted under law as 
interpreted by this Court in General Mmw1:er, Southern Railway & 
Another v. Rangac/wri, AIR 1962 SC 36. Indra Smvlmey specifically 
overruled Rangaclwri to the extent that
reservations in promotions were 
held in Rai1gac/wri to be permitted under Article 16( 4) of the 
Constitution. Indra Sawlmey specifically addressed 
the 
question 
whether reservations could be permitted in matters of promotion unde_r 
'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. 
''The petitioner annexed replies obtained through RT! 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 s~nior 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 thr9ugh 
100% promotion. There are some other posts such Assistant station engineer (Group 
A post) for which rccruitmen.t is 50% by direct recruitment and 50% by promotions.
RAJEEV KUMAR GUPTA & OTHERS v. UNION OF INDIA & 
415 
OTHERS [J. CHELAMESWAR, J.] 
Article 16( 4 )7. The majority held' that reservations in promotion are not 
A 
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 
B 
Group B. 
7 See 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 rnade in the matter of promotion as 
well?" 
' 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 ihe 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 atevery 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 !he initial stage of recruitment reservation can be 
niade 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 c.areer. That woul.d not be in the interest of efficiency of 
administraticm 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 Ill. 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, •·1t 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, 
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[2016] 3 S.C.R. 
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 A1ticle 16(4) are the 
socially and educationally backward classes of citizens. In Devadasa119, 
it was held by this Court that Article 16( 4) is an exception to the principle 
contained in Article 16( I). However, Subba Rao, J., in his dissent opined 
that Article 16( 4) is not an exception to Article 16( I) but an emphatic 
way of expressing the principle inherent in Article 16( I). This dissenting 
opinion later found approval in the majority decision in State of Kera/a 
v. N.M. Thomas, ( 1976) 2 SCC 310. Finally, in Indra Sawl111ey, 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( I) 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 A1ticle 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 
234]. It may equally be true that on the basis of that decision, reservation may
have 
been provided in the matter ofpron1otion 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 361 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 
alreadymade. whether on temporary. officiating or regular/permanent basis. It is futther 
directed that wherever reservations are already provided in the matter ofpromotion-
bc 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 c~tegory, it is necessary to provide for direct recruitment 
therein, it shall be open to it do so'". 
9 T. De\'adasan v. Union of India and Anr .. AIR 1964 SC 179 
10 IDdra Sawhney's case. 
Para 741. ... We too belie\'e that Article 16( I)
does permit reasonable classification for 
ensuring attainment of the equality of opportunity assured by it. For assuring equality
RAJEEV KUMAR GUPTA & OTHERS v. UNION OF INDIA & 
OTHERS [J. CHELAMESWAR, J.] 
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 theS.tate 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 
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. A1iicle 16( 4) does not disable the State from
providing 
differential treatment (reservations) to other classes of citizens under 
Article 16( I )1i 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( I) as the basis. The 
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 Atticle 16. lt 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 (I). 
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. U11io11 of llulia & 
Ors. (2006) 8 SCC 212 reiterated the position in
/11<lra Saw/111e1'. See Para 112. 
11 As per the Indra Sawhney case. Atticle 16( 4) is a subset of Article 16( I) 
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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. 
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 I 995 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 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 I 995 Act. Barriers to their entry must, therefore, be 
scrutinized by rigorous standards within the legal framework of the I 995 
Act. 
2.4. A combined reading of Sections 32 and 33 of the 1995 Act 
explicates a fine arid designed balance between requirements of 
administration and the imperative to provide greater opportunities to PWD. 
Therefore', as detailed in tli~ first part of our analysis, the identification 
exe.rCi~e,
under Section 32 is crucial. Once a post is identified, it means 
that a PWD is fully capable of discharging the functions associated with 
th.e identified post. Once found to be so capable, reservation under Section 
33 t~ an extent ofnot 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. 
12 See Para 3, 4 and 5 of the Proclamation of the Full Participation and Equality 
of the People ";ith Disabilities in tlie Asia and Pacific Region. 
" Id at Para 2.

RAJEEV KUMAR GUPTA & OTHERS v. UNION OF INDIA & 
419 
OTHERS [J. CHELAMESWAR, J.] 
CIVIL APPEAL NO. 5389 OF 2016 
A 
(Arising out ofSLP (C) No.244 of2016) 
In view of our decision in Writ Petition (Civil) No.521 of2008, this 
Civil Appeal is also disposed of, with no order as to costs. 
Nidhi Jain 
Writ petition al101Yed and Civil appeal disposed of. 
B