Reservation In Promotion For Persons With Disability (PWDs) Not Prohibited: SC Upholds 2-Judge Bench Decision [Read Judgment] https://www.livelaw.in/top-stories/reservation-in-promotion-for-pwd-not-prohibited-151853
The Supreme Court has observed that the rule of no reservation in promotions as laid down in Indra Sawhney has no application to Persons With Disability (PWD).
A three judge bench headed by Justice Rohinton Fali Nariman upheld a two judge bench view that the basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1).
The bench, also comprising of Justices Aniruddha Bose and V. Ramasubramanian, was considering a reference which doubted a view taken in Rajiv Kumar Gupta & Others v. Union of India & Others – (2016) 6 SCALE 417. The bench in Rajiv Gupta, in the context of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 had noted that there is no prohibition against reservation in promotion for Persons With Disabilities. The bench in Rajiv Gupta said that the principle in Indra Sawhney & Others v. Union of India & Others – (1992) Supp. 3 SCC 215 against reservation in promotions will not extended to PWDs.
But this view was doubted by a division bench in 2017, observing that Persons With Disabilities required preferntial treatment but not reservation in promotion. On that premise, the bench referred the decision in Rajiv Kumar Gupta to larger bench.
Upholding the view in Rajiv Kumar Gupta, the bench held thus:
"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. 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 29.12.2 in particular."
In Rajeev Kumar Gupta, it was observed thus:
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. 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.
Extract of the order
issued by the court on today’s hearing -
“We have heard the
arguments advanced by Mr. Vinay Kumar Garg, learned senior counsel appearing
for the respondents in SLP(C)No(s).22181 of 2014, SLP(C)No(s).23335 of 2014
& SLP(C)No.23333 of 2014, in full. 6 We have also heard Mr. C.K. Sasi,
learned counsel appearing for the intervener(s) in SLP(C)No.21803 of 2014. We
have heard Ms. Prabha Swami, learned counsel appearing for the respondents in
SLP(C)NO.31125 of 2016 in part. For continuation of arguments, list the matters
tomorrow i.e. Thursday, 23rd January, 2020 at 02:00 p.m. as part-heard. Mr.
O.P. Bhadani, learned counsel appearing for the respondents in
SLP(C)No(s).22181 of 2014, SLP(C)No(s).23335 of 2014 & SLP(C)No.23333 of
2014 is also permitted to file revised written submission in the above matters,
if he so desires.”धिनियम