In an important ruling in Rajiv Kumar Gupta and Ors vs Union of India and Ors, the Supreme Court struck down the central government’s orders which did not permit reservations in promotions in Group A and B posts for differently-abled persons.
The Court ruled that there should be three per cent reservation in all posts—Groups A, B, C and D—for the differently-abled.
In a case argued by visually-impaired Senior Advocate SK Rungta, against the Prasar Bharati, the court made it clear that the Indra Sawhney case could not be taken as a reference on this issue. The Indra Sawhney ruling does not permit reservation in promotions.
The court further held that Article 16(1) couldn’t restrict reservation in this case as it was only for persons with disability (PWD) and not related to caste, religion and other criteria.
The court also clarified that the Department of Personnel and Training’s (DoPT) decision to distinguish between posts to be filled by direct recruitment and through promotion was against the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Only last month in Partap Singh vs State of Himachal Pradesh and Ors, the Himachal Pradesh High Court had ruled that Section 33 of the Persons with Disabilities Act does not include reservation in promotions. The petitioners in Partap Singh had cited a Punjab and Haryana High Court judgment in Viklang Sangh vs State of Haryana in which it was held that “the court must adopt a liberal interpretation which advances the object of the Act”.
However, the Himachal Pradesh High Court did not agree with the judgment in Viklang Sangh, which had favoured reservations for the disabled.
There have been a series of cases against the government’s policy that allowed reservations in promotions in Group C and D jobs but not in Group A and B jobs.
Finally in Rajiv Kumar Gupta and Ors vs Union of India and Ors, the Supreme Court has settled the issue and noted that “the objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress… PWD are not and cannot be equated with backward classes contemplated under Article 16(4)”.
The judgment said that once a post suitable for a disabled person is identified, then Section 33 of the Disabilities Act must be followed to an extent of three per cent. The court pointed out that despite the provisions of the Act, the number of disabled persons in government employment is much below three percent.
—By India Legal Bureau