Thursday, 7 July 2016

Honble Supreme court of india verdict on reservaion in promotion to all categories

Honble  Supreme court orders of india verdict on reservaion in promotion to all categories

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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
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
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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
1 Section 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.
2 The term ‘appropriate Government’ is defined under Section 2(a) of the 1995 Act.
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is mandated under Section 333 to reserve not less than three per
cent of IDENTIFIED POSTS in favour of PWD.
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.
3 Section 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.
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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,
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(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 Indra Sawhney & Others v. Union of
India & Others, 1992 Supp (3) SCC 215 (hereinafter, referred
to as the ‘Indra Sawhney case’) is not applicable to PWD.
9. The respondents argued4
4 All the respondents adopted the counter affidavit filed on 9.7. 2010 by respondents 4 to 8
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(i) that the mandate of Section 33 of the 1995 Act applies
only when the identified posts are sought to be filled up by
direct recruitment. Impugned memorandum-II only contains a
policy decision of the Government of India by which
reservation is granted to Group C and Group D posts even
when they are sought to be filled up by the mode of promotion.
Since the policy decision restricted the reservation in
promotion to identified Group C and Group D posts, the
petitioners have no right to demand reservation in promotion
to identified Group A and Group B posts.
(ii) The respondents further argued that Indra Sawhney
case clearly ruled that reservations be confined to recruitment
at the initial level of recruitment into government service and
not at the stage of promotions. Providing for reservation in
higher level posts is constitutionally impermissible. The
respondents, therefore, argued that in light of the law laid
down in Indra Sawhney, it is constitutionally impermissible
that petitioners to be given three per cent reservation in
promotions for identified Group A and Group B posts.
10. Whether any post under the State is to be reserved for being
filled up exclusively by some persons belonging to any
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“constitutionally deserving” class of persons or otherwise is a matter
of policy choice of the State. Such a policy is either laid down by a
statute or executive orders. Various factors are to be taken into
consideration for framing any policy such as the nature of
responsibilities which a particular post carries, the number of posts
available in that class and the representation already existing in
that class of posts for persons of the class to which reservation is
sought to be provided and myriad other things.
11. But such factors ought to be germane to purposes sought to
be achieved by the policy apart from being relevant in the context of
the scheme of Articles 14 and 16 of the Constitution. The same
principles of law apply even to the question, as to the mode of filling
up of any post or class of posts.
12. The policy of the State w.r.t. the issue on hand is regulated
by the 1995 Act. It authorises (under Section 32) the appropriate
Government to identify the posts suitable to be filled up by PWD.
The Government of India has exercised the power and identified the
posts vide the NOTIFICATON. The NOTIFICATION includes some of
the posts in Group A and Group B.5
5 The following entries in the identification notification are indicative of this fact- entry nos. 285, 289, 291, 363,
366, 379, 535, 547, 555 and 72 in the Group A list and entry nos. 67, 70 and 120.
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13. For some of these IDENTIFIED POSTS in Group A and Group
B, the mode of recruitment is only through promotions.6 The
purpose underlying the statutory exercise of identification under
Section 32 of the 1995 Act would be negated if reservation is denied
to those IDENTIFIED POSTS by stipulating that either all or some of
such posts are to be filled up only through the mode of promotion.
It is demonstrated before us that PWD as a class are disentitled to
some of the IDENTIFIED POSTS in Groups A and Group B because
of the impugned memoranda and the relevant regulations, under
which the only mode of appointment to those IDENTIFIED POSTS is
through promotion. Once posts are identified under Section 32, 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 under Section 33 of the 1995 Act.
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
6 The petitioner annexed replies obtained through RTI at pages 119-122 of the writ petition. A perusal of the annexed
documents leaves no doubt that there are several identified posts for which the only possible mode of recruitment
under the regulations of Prasar Bharati is promotion.
The recruitment mode of several posts such as senior engineering assistant (Group B post), Assistant
engineer (Group B post), Station engineer (Group A post); Superintending engineer (Group A post) and Chief
engineer (Group A post) is through 100% promotion. There are some other posts such Assistant station engineer
(Group A post) for which recruitment is 50% by direct recruitment and 50% by promotions.
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law as interpreted by this Court in General Manager, Southern
Railway & Another 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 reservations could
be permitted in matters of promotion under Article 16(4)7. The
7See Question No. 7 framed in Hon’ble B.P. Jeevan Reddy, J.’s Judgment in Indra Sawhney
case;
“7. Whether clause (4) of Article 16 provides reservation only in the matter of initial
appointments/direct recruitment or does it contemplate and provide for reservations being made in
the matter of promotion as well?”
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majority held8 that reservations in promotion are not permitted
under our constitutional scheme.
15. The respondent argued that the answer to Q.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.
8 Para 828. “We see no justification to multiply ‘the risk’, which would be the consequence of holding that
reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap should
be given to backward class of citizens at the stage of initial appointment, it would be a serious and unacceptable
inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of
promotion throughout their career. That would mean creation of a permanent separate category apart from the
mainstream — a vertical division of the administrative apparatus. The members of reserved categories need not have
to compete with others but only among themselves. There would be no will to work, compete and excel among
them. Whether they work or not, they tend to think, their promotion is assured. This in turn is bound to generate a
feeling of despondence and ‘heart-burning’ among open competition members. All this is bound to affect the
efficiency of administration. Putting the members of backward classes on a fast-track would necessarily result in
leap-frogging and the deleterious effects of “leap-frogging” need no illustration at our hands. At the initial stage of
recruitment reservation can be made in favour of backward class of citizens but once they enter the service,
efficiency of administration demands that these members too compete with others and earn promotion like all
others; no further distinction can be made thereafter with reference to their “birth-mark”, as one of the learned
Judges of this Court has said in another connection. They are expected to operate on equal footing with others.
Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of
administration nor in the larger interest of the nation. It is wrong to think that by holding so, we are confining the
backward class of citizens to the lowest cadres. It is well-known that direct recruitment takes place at several higher
levels of administration and not merely at the level of Class IV and Class III. Direct recruitment is provided even at
the level of All India Services. Direct recruitment is provided at the level of District Judges, to give an example
nearer home. It may also be noted that during the debates in the Constituent Assembly, none referred to reservation
in promotions; it does not appear to have been within their contemplation”.
Para 829. “It is true that Rangachari [(1962) 2 SCR 586: AIR 1962 SC 36] has been the law for more than
30 years and that attempts to re-open the issue were repelled in Karamchari Sangh [(1981) 1 SCC 246, 289: 1981
SCC (L&S) 50: (1981) 2 SCR 185, 234]. It may equally be true that on the basis of that decision, reservation may
have been provided in the matter of promotion in some of the Central and State services but we are convinced that
the majority opinion in Rangachari [(1962) 2 SCR 586: AIR 1962 SC 36] to the extent it holds, that Article 16(4)
permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from.
However, taking into consideration all the circumstances, we direct that our decision on this question shall operate
only prospectively and shall not affect promotions already made, whether on temporary, officiating or
regular/permanent basis. It is further directed that wherever reservations are already provided in the matter of
promotion — be it Central Services or State Services, or for that matter services under any corporation, authority or
body falling under the definition of ‘State’ in Article 12 — such reservations shall continue in operation for a period
of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or
re-issue the relevant Rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for
ensuring adequate representation of ‘backward class of citizens’ in any service, class or category, it is necessary to
provide for direct recruitment therein, it shall be open to it do so”.
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16. We do not agree with the respondent’s submission. The Indra
Sawhney ruling arose in the context of reservations in favour of
backward classes of citizens falling within the sweep of Article 16(4).
17. Backward classes contemplated under Article 16(4) are the
socially and educationally backward classes of citizens. In
Devadasan9, it was held by this Court that Article 16(4) is an
exception to the principle contained in Article 16(1). However,
Subba Rao, J., in his dissent opined that Article 16(4) is not an
exception to Article 16(1) but an emphatic way of expressing the
principle inherent in Article 16(1). This dissenting opinion later
found approval in the majority decision in State of Kerala v. N.M.
Thomas, (1976) 2 SCC 310. Finally, in Indra Sawhney, a 9-judge
Bench by majority (speaking through Jeevan Reddy, J.) confirmed
that Article 16(4) is not an exception to the Rule in Article 16(1) but
it is an “instance of (such) classification”10
9 T. Devadasan v. Union of India and Anr., AIR 1964 SC 179
10 Indra Sawhney’s case.
Para 741. … We too believe that Article 16(1) does permit reasonable classification for ensuring
attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary
in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate
inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The
"backward class of citizens" are classified as a separate category deserving a special treatment in the nature of
reservation of appointments/posts in the services of the State. Accordingly, we hold that Clause (4) of Article 16 is
not exception to Clause (1) of Article 16. It is an instance of classification implicit in and permitted by clause (1).
… It is a provision which must be read along with and in harmony with clause (1). Indeed, even without Clause (4),
it would have been permissible for the State to have evolved such a classification and made a provision for
reservation of appointments/posts in their favour. Clause (4) merely puts the matter beyond any doubt in specific
terms.
A Constitution Bench of this Court in M. Nagaraj & Ors. v. Union of India & Ors. (2006) 8 SCC
212 reiterated the position in Indra Sawhney. See Para 112.
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18. The principle is that the State shall not discriminate (which
normally includes preference) on the basis of any one of the factors
mentioned in Article 16(1). Though under the doctrine of
“reasonable classification”, it has always been held that State can
identify classes of people who have distinct characteristics or
disadvantages and treat them separately under law. Having regard
to the history, the social and demographic context of our nation, the
Constitution framers thought it appropriate to enable the State
under Article 16(4) to identify citizens for preferential treatment for
the purpose of employment under the State.
19. This Court in Indra Sawhney was dealing with the action of
the State in providing reservation in employment under the State to
various classes of citizens, identified by the State to be backward
classes. The process of such identification and the nature and
extent of reservations that could be provided under Article 16(4)
were the main issues before this Court. It is in this context, this
Court held that reservation in the context of promotions to higher
posts under the State are constitutionally impermissible.
20. To remove the basis of the rule propounded in Indra
Sawhney case, Parliament enacted the Constitution
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(Seventy-Seventh Amendment) Act, 1995. By inserting Article
16(4A), an exception is created in favour of citizens belonging to the
Scheduled Castes and the Scheduled Tribes, from the rule laid
down in Indra Sawhney.
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 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)11 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 the PWD.
22. The 1995 Act was enacted to fulfill India’s obligations under
the ‘Proclamation on the Full Participation and Equality of the
People with Disabilities in the Asia and Pacific Region’. The objective
11 As per the Indra Sawhney case, Article 16(4) is a subset of Article 16(1).
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behind the 1995 Act is to integrate PWD into the society and to
ensure their economic progress.12 The intent is to turn PWD into
‘agents of their own destiny’.13 PWD are not and cannot be equated
with backward classes contemplated under Article 16(4). May be,
certain factors are common to both backward classes and PWD
such as social attitudes and historical neglect etc.
23. It is disheartening to note that (admittedly) 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 scrutinized by rigorous standards within the legal
framework of the 1995 Act.
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
12 See Para 3, 4 and 5 of the Proclamation of the Full Participation and Equality of the People with Disabilities in the
Asia and Pacific Region.
13 Id at Para 2.
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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.
CIVIL APPEAL NO. 5389 OF 2016
(Arising out of SLP (C) No.244 of 2016)
In view of our decision in Writ Petition (Civil) No.521 of 2008,
this Civil Appeal is also disposed of, with no order as to costs.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Abhay Manohar Sapre)
New Delhi;
June 30, 2016.
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