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SC to Govt. : Extend 3% Reservation for disabled Persons in all posts

  • The topic of reservation has been doing the rounds ever since the Jat protests. But now it seems that the SC has allowed for reservations. For the disabled.

    In a Landmark Judgment, Supreme Court of India has directed the Government to extend the reservation for ‘persons with disability’ in all identified posts including Group A and Group B, irrespective of the mode of filling up of such posts. A Two Judge Bench comprising of Justices J.Chelameswar and Abhay Manohar Sapre in Rajeev Kumar Gupta & Others Vs Union of India & Others quashed the two office memoranda No.36035/16/91-Estt. (SCT) dated 18.02.1997 and No.36035/3/2004-Estt. (RES) dated 29.12.2005 issued by the Department of Personnel and Training, Government of India, terming them as illegal and inconsistent with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

    The Petitioners who are employed with Prasar Bharati Corporation of India have approached the Court to quash the above memoranda contending that it deprive them of the statutory benefit of reservation under the 1995 Act w.r.t. Group A and Group B posts in Prasar Bharati. 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  as posts suitable for being filled up with ‘’Persons with disability’ in identified posts; an exercise in compliance with the mandate under Section 32 of the 1995 Act. After such identification, the ‘appropriate Government’ is mandated under Section 33 to reserve not less than three per cent of identified posts in favour of Persons with disabilities. 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. Under the regulations framed under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990, 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. Memorandum II provides for reservation in favour of ‘Persons with disability’ 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 ‘Persons with disability’ 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.

    The Government objected the Petitions mainly on the following two grounds

    (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.
    (ii) 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. 

    Repelling the first contention the Bench held that: “Whether any post under the State is to be reserved for being filled up exclusively by some persons belonging to any “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. 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”.

    As for the second contention, the court noticed,
    “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). 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) 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 Persons with disabilities 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 ‘Persons with disabilities’.
     

    OUR TAKE

    The decision is wise and just. Instead of caste based reservations, which has deep flaws, the people who deserve to be empowered are the ones who really are at a  disadvantage. The whole point of quota system is to bring the disadvantageous to the same level as others and provide them with the opportunity that they deserve. The apex court has done a brilliant job in identifying the most appropriate group. Of course, various other factors would also be taken into consideration. But this is a step taken in the right direction for sure.
     
     


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