QUASHING THE central government’s earlier orders on restricting reservation for the differently-abled in promotion to Group A and Group B posts, the Supreme Court has ruled that three per cent reservation shall be provided to them in all posts and services under the Government of India.
The government had confined such reservation to Group C and Group D posts. In its memoranda issued in 1997 and 2005, the Department of Personnel and Training (DoPT) had also created a distinction between posts to be filled through direct recruitment and those through promotion, while stating that no reservation shall be provided in posts to be filled through promotion in Group A and Group B categories.
In its ruling on June 30 — the order was released on Saturday — a bench of Justices J Chelameswar and Abhay M Sapre declared the DoPT memoranda as “illegal and inconsistent” with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
“We further direct the government to extend three per cent reservation to PWD (persons with disability) in all identified posts in Group A and Group B, irrespective of the mode of filling up such posts,” said the bench.
“It is disheartening to note that low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinised by rigorous standards within the legal framework of the 1995 Act,” the bench said.
In the past, while some high courts ordered reservation in such posts for the disabled, the central government appealed against these orders.
This is the first authoritative judgment that has explicitly directed the government to do away with the distinction and give benefits of reservation to the differently-abled, without any classification.
The court was ruling on two petitions which challlenged this policy in recruitment to state-run Prasar Bharati. Rajan Mani of Disability Law Initiative and S K Rungta, the only visually impaired senior counsel in the country, led the legal challenge.
The government opposed concession to the disabled, contending that they have no right to demand reservation in promotion to identified Group A and Group B posts. It also cited the nine-judge bench ruling by the apex court in the Indra Sawhney (Mandal reservation) case, to maintain reservation should be confined to recruitment at the initial level, and not at the stage of promotions.
But the bench dismissed the government’s arguments, noting that once the posts for the disabled have been identified under Section 32 of the Act, 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. 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 3 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,” it held.
The bench further said that Indra Sawhney’s case shall not impose a bar on reservation for the disabled, since the principle laid down in this case is applicable only when the State seeks to give preferential treatment in the matter of employment to the backward class.
“The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1) such as caste, religion etc. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress… PWD are not and cannot be equated with backward classes contemplated under Article 16(4),” it said. Article 16 empowers the state to prescribe preferential treatment to certain classes in matters of public employment.