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Supreme Court of India
Siddaraju vs The State Of Karnataka on 14 January, 2020Author: Rohinton Fali Nariman
Bench: Rohinton Fali Nariman, Aniruddha Bose, V. Ramasubramanian
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1567 OF 2017
SIDDARAJU Appellant(s)
VERSUS
STATE OF KARNATAKA & ORS. Respondent(s)
WITH
REVIEW PETITION (C) NO. 36 OF 2017
IN
CIVIL APPEAL NO. 5389 OF 2016
CIVIL APPEAL NO. 300 OF 2020
(Arising out of SLP (C) No. 11632 of 2017)
CIVIL APPEAL NO. 299 2020
(Arising out of SLP (C) No. 21197 of 2017)
CIVIL APPEAL NO. 310 2020
(Arising out of SLP (C) No. 4650 of 2019)
CIVIL APPEAL NO. 6092 OF 2019
CIVIL APPEAL NO. 6095 OF 2019
J U D G M E N T
R.F. Nariman, J.
1) This batch of cases before the Court has come to us on
Signature Not Verified
Digitally signed by R
NATARAJAN
Date: 2020.01.20
17:08:15 IST
a reference made by a Division Bench of this Court dated
Reason:
03.02.2017. The reference order reads as follows:
“Delay condoned. Leave granted.
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Question 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.
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.
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.
We find merit in the contention that the
matter needs to be considered by the larger Bench.
Accordingly, we direct the matter be placed
before Hon’ble the Chief Justice for appropriate
orders.
Union of India is at liberty to file its
affidavit within one week from today.”
2) Parliament passed the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995 being Act 1 of 1996. The statement of objects and
reasons for the said Act states that a Conference held at
Beijing, China, in December, 1992 had adopted the
Proclamation on the Full Participation and Equality of
People with Disabilities in the Asia and the Pacific region
India being a signatory to the said proclamation found it
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necessary to enact a suitable legislation to provide for the
special care that is necessary to remove discrimination
against persons with disabilities and to make special
provision for the integration of such persons into the
social mainstream.
3) Section 2(i) of the said Act defines “disability” as
follows:-
“(i) “disability” means—
(i) blindness;
(ii) low vision;
(iii) leprosy-cured;
(iv) hearing impairment;
(v) locomotor disability;
(vi) mental retardation;
(viii) mental illness;”
Section 2(t) defines “person with disability” as follows:-
“(t) “person with disability” means a person
suffering from not less than forty per cent of any
disability as certified by a medical authority;”
4) The Act then provides for Central and State Co-
ordination Committees and prevention and early detection of
disabilities. We are directly concerned with Chapter VI of
the Act which deals with identification and reservation of
posts for the purpose of employment. These Sections state
as follows:-
“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
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up- date the list taking into consideration the
developments in technology.
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 each shall he
reserved for persons suffering from-
(i) blindness or low vision;
(ii) hearing impairment;
(iii) locomotor disability or cerebral palsy,
in the posts identified for each 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.”
5) In Union of India and Another vs. National Federation
of the Blind and Others, (2013) 10 SCC 772, this Court went
into the provisions of the aforesaid Act in some detail and,
in particular, Sections 32 and 33. The Court considered
Office Memorandum dated 29.12.2005 of the Government of
India, which stated that the quantum of reservation would be
as follows:-
“2. QUANTUM OF RESERVATION
(i) Three percent of the vacancies in case of
direct recruitment to Group A, B, C and D posts
shall be reserved for persons with disabilities of
which one per cent each shall be reserved for
persons suffering from (i) blindness or low
vision, (ii) hearing impairment and
(iii) locomotor disability or cerebral palsy in
the posts identified for each disability;
(ii) Three percent of the vacancies in case of
promotion to Group D, and Group C posts in which
the element of direct recruitment, if any, does
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not exceed 75%, shall be reserved for persons with
disabilities of which one per cent each shall be
reserved for persons suffering from (i) blindness
or low vision, (ii) hearing impairment and (iii)
locomotor disability or cerebral palsy in the
posts identified for each disability.
The Court then held as follows:
“39) It has also been submitted on behalf of the
appellants herein that since reservation of
persons with disabilities in Group C and D has
been in force prior to the enactment and is being
made against the total number of vacancies in the
cadre strength according to the OM dated
29.12.2005 but the actual import of Section 33 is
that it has to be computed against identified
posts only. This argument is also completely
misconceived in view of the plain language of the
said Section, as deliberated above. Even for the
sake of argument, if we accept that the
computation of reservation in respect of Group C
and D posts is against the total vacancies in the
cadre strength because of the applicability of the
scheme of reservation in Group C and D posts prior
to enactment, Section 33 does not distinguish the
manner of computation of reservation between Group
A and B posts or Group C and D posts respectively.
As such, one statutory provision cannot be
interpreted and applied differently for the same
subject-matter.
40) Further, if we accept the interpretation
contended by the appellants that computation of
reservation has to be against the identified posts
only, it would result into uncertainty of the
application of the scheme of reservation because
experience has shown that identification has never
been uniform between the Centre and the States and
even between the Departments of any Government.
For example, while a post of middle school teacher
has been notified as identified as suitable for
the blind and low vision by the Central
Government, it has not been identified as suitable
for the blind and low vision in some States such
as Gujarat and J&K, etc. This has led to a series
of litigations which have been pending in various
High Courts. In addition, Para 4 of the OM dated
29.12.2005 dealing with the issue of
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identification of jobs/posts in sub clause (b)
states that list of the jobs/posts notified by the
Ministry of Social Justice & Empowerment is not
exhaustive which further makes the computation of
reservation uncertain and arbitrary in the event
of acceptance of the contention raised by the
appellants.
42) A perusal of Indra Sawhney would reveal that
the ceiling of 50% reservation applies only to
reservation in favour of other Backward classes
under Article 16(4) of the Constitution of India
whereas the reservation in favour of persons with
disabilities is horizontal, which is under Article
16(1) of the Constitution. In fact, this Court in
the said pronouncement has used the example of 3%
reservation in favour of persons with disabilities
while dealing with the rule of 50% ceiling. Para
812 of the judgment clearly brings out that after
selection and appointment of candidates under
reservation for persons with disabilities they
will be placed in the respective rosters of
reserved category or open category respectively on
the basis of the category to which they belong
and, thus, the reservation for persons with
disabilities per se has nothing to do with the
ceiling of 50%. Para 812 is reproduced as
follows:-
“812. ……all reservations are not of the same
nature. There are two types of reservations, which
may, for the sake of convenience, be referred to
as ‘vertical reservations’ and ‘horizontal
reservations’. The reservations in favour of
Scheduled Castes, the Scheduled Tribes and the
other backward classes [under Article 16(4)] may
be called vertical reservations whereas
reservations in favour of physically handicapped
[under Clause (1) of Article 16] can be referred
to as horizontal reservations. Horizontal
reservations cut across the vertical reservations
– what is called inter-locking reservations. To be
more precise, suppose 3% of the vacancies are
reserved in favour of physically handicapped
persons; this would be a reservation relatable to
Clause (1) of Article 16. The persons selected
against this quota will be placed in the
appropriate category; if he belongs to S.C.
category he will be placed in that quota by making
necessary adjustments; similarly, if he belongs to
open competition (O.C.) category, he will be
placed in that category by making necessary
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adjustments. Even after providing for these
horizontal reservations, the percentage of
reservations in favour of backward class of
citizens remains – and should remain – the same……”
Having concluded thus, the Court then held:
“50) Employment is a key factor in the empowerment
and inclusion of people with disabilities. It is
an alarming reality that the disabled people are
out of job not because their disability comes in
the way of their functioning rather it is social
and practical barriers that prevent them from
joining the workforce. As a result, many disabled
people live in poverty and in deplorable
conditions. They are denied the right to make a
useful contribution to their own lives and to the
lives of their families and community.
51) The Union of India, the State Governments as
well as the Union Territories have a categorical
obligation under the Constitution of India and
under various International treaties relating to
human rights in general and treaties for disabled
persons in particular, to protect the rights of
disabled persons. Even though the Act was enacted
way back in 1995, the disabled people have failed
to get required benefit until today.
52) Thus, after thoughtful consideration, we are
of the view that the computation of reservation
for persons with disabilities has to be computed
in case of Group A, B, C and D posts in an
identical manner viz., “computing 3% reservation
on total number of vacancies in the cadre
strength” which is the intention of the
legislature. Accordingly, certain clauses in the
OM dated 29.12.2005, which are contrary to the
above reasoning are struck down and we direct the
appropriate Government to issue new Office
Memorandum(s) consistent with the decision
rendered by this Court.
53) Further, the reservation for persons with
disabilities has nothing to do with the ceiling of
50% and hence, Indra Sawhney is not applicable
with respect to the disabled persons.”
6) Certain directions were then made in the end of the
judgment to ensure proper implementation of the reservation
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policy for the disabled and to protect their rights.
7) We may mention that, pursuant to this Court’s judgment,
the Union of India issued Office Memorandum dated 03.12.2013
in which it made only one change in the Office Memorandum
dated 29.12.2015 as follows:-
“5. Keeping in view the directions of the Hon’ble
Supreme Court, Para 14 of the OM dated 29.12.2005
is modified to the following extent:
“Reservation for persons with disabilities in
Group ‘A’ or Group ‘B’ posts shall be computed on
the basis of total number of vacancies occurring
in direct recruitment quota in all the Group ‘A’
posts or Group ‘B’ posts respectively, in the
cadre.”
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 these cases.
8) The next important judgment that needs to be adverted
to in this behalf is the judgment 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 as follows:-
“10. Para 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.”
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9) 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 Court held:
“14. We 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.
15. 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.
16. We do not agree with the respondent’s
submission. Indra Sawhney ruling arose in the
context of reservations in favour of backward
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classes of citizens falling within the sweep of
Article 16(4).
xxx xxx
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 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.
The Court then concluded:
24. 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.
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.”
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10) 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.
11) We may also note that review petitions were filed 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, Secy. Deptt. 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.
Since the reference has been disposed of by us today,
contempt petitions be listed for hearing.
Civil Appeal No. 1567 OF 2017:
12) Application for impleadment in C.A. 1567/2017 is
allowed.
13) This matter arises out of the order of the Central
Administrative Tribunal, Bangalore Bench, Bangalore dated
24.07.2015 in which the 2005 O.M has been followed without
reference to any of the judgments of this Court. A writ
petition from the aforesaid judgment was dismissed by the
Karnataka High Court on 23.03.2016, stating that the precise
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question of law that arises in this case was kept open.
Accordingly, we set aside the judgment of the CAT and
consequently that of the High Court. The case is to be
governed by the three decisions of this Court outlined
above, which judgments have to be followed by the Union of
India and the States. It is not necessary to pass any
further directions. The appeal is disposed of accordingly.
Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389
of 2016:
14) Delay is condoned.
15) This matter stands dismissed in view of today’s
judgment.
SLP (C) No. 11632 of 2017:
16) Leave granted.
17) 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 following conclusion:
“8. The 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 1st September,
2015, the Apex Court has dealt with issue of
reservation in promotion. In paragraph 10 of
the judgment and order dated 1st September,
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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 8th
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.
9. In view of the clarification issued by the
Apex Court under the order dated
st
1 September, 2015 in Contempt Petition
(Civil) No. 499 of 2014, now the directions
contained in paragraph 13 of the judgment and
order dated 4th 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 29th December, 2005.”
Consequently, 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
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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. On the basis
of this judgment, the impugned judgment is set aside and the
contempt petition is restored to the file. The petition be
disposed of on merits.The appeal is disposed of accordingly.
SLP (C) No. 21197 of 2017:
18) Leave granted.
19) In view of our judgment today, the appeal is dismissed.
SLP (C) No. 4650 of 2019:
20) Leave granted.
21) Having heard learned senior counsel for the appellant
at some length, we may note that paragraph 4(C) of the
counter affidavit states as follows:
“(C) That Chhattisgarh State Power Holding Company
Ltd. has appointed a committee for identification of
the post upon which reservation in promotion will be
applicable. The said Committee in its meeting held
on 10.01.2017 decided that the post of Executive
Engineer, Mechanical and Electrical in transmission,
distribution and generation companies where the
Executive Engineer has to visit sites and perform
various acts personally, it is not advisable to keep
such post under reservation. However, reservation
will be applicable in promotion to the post of
Executive Engineer, Computer Science, Information &
Technology and Civil Engineering. The said decision
of the company has not been challenged till date and
thus binding on all the employees as per the
provisions of Rights of Persons with Disabilities
Act, 2016. On this ground also the Special Leave
Petition filed by the Petitioner is not
maintainable.”
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22) 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.
23) Learned senior counsel appearing on behalf of the
appellant has pointed out that as per the Gazette
Notification dated 31.05.2001, it is an Expert Committee
that has to identify, keeping in view the provisions of the
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995, and Section 32
in particular, suitable posts for persons with
disabilities, and this has not been done in the present
case. Since this point has not been argued in any of the
cross appeals, we reserve liberty to the appellant to
challenge the Internal Committee’s findings on grounds
available to them in law. Apart from this, the impugned
judgment does not call for interference. The appeal is
disposed of accordingly.
24) Needless to add if such a challenge succeeds, the
three judgments pointed out by us in the Judgment in the
lead matter, i.e., Civil Appeal No. 1567 of 2017 will have
to be applied and followed.
Civil Appeal No. 6092 of 2019:
25) The appeal is dismissed in accordance with today’s
judgment. Interim order dated 08.07.2019 stands vacated.
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It has been contended before us that there are only 2 Group
‘A’ posts available/identified as a result of which the
reservation will have to be worked in accordance with the
roster system. We may only clarify that we have not, in any
manner, indicated as to how such system should be worked.
Civil Appeal No. 6095 of 2019:
26) The appeal is dismissed in view of today’s judgment.
…………………….. J.
(ROHINTON FALI NARIMAN)
…………………….. J.
(ANIRUDDHA BOSE)
…………………….. J.
(V. RAMASUBRAMANIAN)
New Delhi;
January 14-15, 2020.
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