Reservation; Rajeev Kumar Gupta Vs. Union of India [Supreme Court of India, 30-06-2016]

Prasar Bharati (Broadcasting Corporation of India) Act, 1990 – Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Sections 2(t), 32 & 33 – Reservation of Post to Persons with disability (PWD) – Held, 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.

Reservation


IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL/APPELLATE JURISDICTION

(J. Chelameswar) and (Abhay Manohar Sapre) JJ.

June 30, 2016

WRIT PETITION (CIVIL) No.521 OF 2008

Rajeev Kumar Gupta & Others … Petitioners

Versus

Union of India & Others … Respondents

WITH

CIVIL APPEAL NO. 5389 OF 2016

(Arising out of SLP (Civil) No.244 of 2016)

J U D G M E N T

Chelameswar, J.

1. Leave granted in SLP (Civil) No.244 of 2016.

2. The petitioners are employed with Prasar Bharati Corporation of India (hereinafter, “Prasar Bharati”), a statutory corporation brought into existence by the

Prasar Bharati (Broadcasting Corporation of India) 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 Opportunities, 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 that the 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.III 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. After such identification, the ‘appropriate Government’2 is mandated under Section 333 to reserve not less than three per cent of IDENTIFIED POSTS in favour of PWD.


1Section 32- “Identification of posts which can be reserved for persons with disabilities.—Appropriate Governments shall-

(a) identify posts, in the establishments, which can be reserved for the persons with disability;

(b) at periodical intervals not exceeding three years, review the list of 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.

2The 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.


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 provides 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 participation of PWD in matters of employment.

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 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.

(ii) That the embargo on reservation in promotions laid down by this court in