Case: Siddaraju vs. State of Karnataka
Case no.: Civil Appeal 1567 of 2017
Coram: Justices R.F. Nariman, Aniruddha Bose and V. Ramasubramanian
The decision of the Supreme Court, in this case, encloses in it the rights of persons with disability in reference with the Rights of Persons with Disabilities Act, 2016 in regards to the reservation in promotion of the disabled.
A disabled employee of the Karnataka Government approached the Karnataka High Court, seeking the benefit of reservation in promotion. The HC dismissed his case in March 2016 before the landmark judgement of Rajiv Kumar Gupta and others v/s Union of India and ors. He appealed before the Supreme Court, and in January 2017 and thereafter the case was referred to a larger bench because it was felt that the Government’s contention that reservation in promotion was constitutionally impermissible, according to the 1992 SC judgment in Indra Sawhney’s case, deserved further consideration.
- In Indra Sawhney case the prohibition against reservation in promotion was laid down by the majority which applies not only to Article 16(4) but also 16(1) of the Constitution of India.
- 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.
- To this, the SC, in this case, is of view that the basis for providing reservation for PWD is a physical disability and not any of the criteria forbidden under Article 16(1). Further, the reservation of persons with disability has nothing to do with 50% ceiling. Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to persons with disability.
Further in Rajiv Kumar Gupta case, the Supreme Court had decided on June 30, 2016, that wherever a promotional post was identified to be suitable for a person with a disability, all public sector employers were to provide the benefit of 3% reservation in promotion to their disabled employees.
SC held that there is a requirement of combined reading of Sections 32 and 33 of the Persons with Disability Act, 1995 to determine the 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.
Further, in light of the analysis, SC declared the impugned memoranda as illegal and inconsistent with the 1995 Act. It further directed the Government to extend three per cent 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.
Edited by Vartika Gajendra Singh
Approved & Published – Sakshi Raje