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.
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