Jasti Chelameswar, J.— 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 by two Office Memoranda No. 36035/16/91-Estt. (SCT) dated 18-2-1997 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 18-1-2007 (hereinafter “the Notification”) as posts suitable for being filled up with PWD (hereinafter “the 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 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.
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:
8.1. 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. The petitioners therefore lose out on a significant amount of opportunity at the upper end of the organisational 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 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. The 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.
8.2. That the embargo on reservation in promotions laid down by this Court in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217, (1992) 22 ATC 385 (hereinafter referred to as “Indra Sawhney case”) is not applicable to PWD.
9. The respondents argued:
9.1. 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.
9.2. The respondents further argued that Indra Sawhney case 1992 Supp (3) SCC 217, (1992) 22 ATC 385 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 the light of the law laid down in Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385, 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 “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 Notification. The Notification includes some of the posts in Group A and Group B.
13. For some of these identified posts in Group A and Group B, the mode of recruitment is only through promotions. 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 Group 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 granted 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 1992 Supp (3) SCC 217, (1992) 22 ATC 385. Prior to Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385, reservation in promotions were permitted under law as interpreted by this Court in Southern Railway v. Rangachari AIR 1962 SC 36, (1962) 2 SCR 586. Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385 specifically overruled Rangachari AIR 1962 SC 36, (1962) 2 SCR 586 to the extent that reservations in promotions were held in Rangachari AIR 1962 SC 36, (1962) 2 SCR 586 to be permitted under Article 16(4) of the Constitution. Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385 specifically addressed the question whether reservations could be permitted in matters of promotion under Article 16(4) 1992 Supp (3) SCC 217. The majority held 1992 Supp (3) SCC 217, (1962) 2 SCR 586, (1981) 1 SCC 246 at p. 289, (1962) 2 SCR 586 that reservations in promotion are not permitted under our constitutional scheme.
15. The respondent argued that the answer to Question 7 in Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385 squarely covers the situation on hand and the reasons outlined by the majority opinion in Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385 at para 828 must also apply to bar reservation in promotions to identified posts of Group A and Group B.
16. We do not agree with the respondent's submission. Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385 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 Devadasan AIR 1964 SC 179, 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 1992 Supp (3) SCC 217, (1992) 22 ATC 385, a nine-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” 1992 Supp (3) SCC 217, (2006) 8 SCC 212, (2006) 8 SCC 212.
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 the 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 1992 Supp (3) SCC 217, (1992) 22 ATC 385 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 1992 Supp (3) SCC 217, (1992) 22 ATC 385, Parliament enacted the Constitution (Seventy-seventh Amendment) Act, 1995. By inserting Article 16(4-A), 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 1992 Supp (3) SCC 217, (1992) 22 ATC 385.
21. The principle laid down in Indra Sawhney 1992 Supp (3) SCC 217, (1992) 22 ATC 385 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 (reservations) to other classes of citizens under Article 16(1) 1992 Supp (3) SCC 217 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 1992 Supp (3) SCC 217, (1992) 22 ATC 385 has clearly and normatively no application to PWD.
22. The 1995 Act was enacted to fulfil 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 behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress. The intent is to turn PWD into “agents of their own destiny”. 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 scrutinised 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 reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.
25. In the 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 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.
Civil Appeal No. 5389 of 2016 [arising out of SLP (Civil) No. 244 of 2016]
26. 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.