INTRODUCTION
Dr. Siddaraju, a non-KAS cadre officer with a handicap, filed the petition. According to U.O. Note dated 02.04.2014, the Department of Personnel & Administrative Reforms of the Government of Karnataka announced six positions for promotion to the IAS, Karnataka Cadre for non-KAS officers without allocating three percent of the positions to people with disabilities in accordance with Sections 32 and 33 of the Persons with Disabilities Act 1995. Dr. Siddaraju (the “petitioner”) was not nominated for promotion despite meeting all qualifying requirements in terms of age and positive performance ratings; this would not have happened if at least one job had been set aside for people with disabilities.
FACTS:
- In response to the Proclamation on the FullOParticipation and Equality ofOPeople with Disabilities in thePAsia and the Pacific region, signed by India at a Conference held in Beijing, China, in December 1992, Parliament passed the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996)
- The Quantum of Reservation was established by Office Memorandum dated 29.12.2005 of the Government of India as, firstly, 3% in case of direct recruitment to Group A/B/C and D and, secondly, 3% in case of promotion of in Group C/D if the direct recruitment in the promoted position is less than 75%.
- Whether those covered by “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995” (the “Act”) can receive a promotion reservation was an issue put before a Supreme Court Division Bench in 2017.
- The bench held the opinion that people with disabilities unquestionably needed special treatment, which may also include appointment reservations but not promotion reservations.
- However, Rajiv Kumar Gupta & Others v. Union of India & Others ((2016) 6 SCALE 417), a case decided by a similar-sized Supreme Court Division Bench, had previously adopted the opposite stance, holding that anyone covered by the Act might receive a promotion with a reservation.
- Therefore, a referral issued by the previously stated Division Bench of the Supreme Court on February 3, 2017, brought the group of cases before the present Full Bench.
ISSUES RAISED:
Whether or whether people with disabilities covered by the Act are subject to the bar of reservation in promotion imposed by Indira Sawhney?
The court cited the earlier decision made in NationalOFederation of theOBlind and Others (2013), which stated that reading Indra Sawhney (1992) would show that the horizontal reservation in favour of people with disabilities, which is under Article 16(1) of the Constitution, is covered by Article 16(4) of the Constitution, whereas the vertical reservation in favour of other Backward classes is covered by Article 16(4). Since the horizontal reserve for people with disabilities has nothing to do with the 50% cap, Indra Sawhney does not apply to people with disabilities.
The court also cited Rajeev Kumar Gupta (2016), which said that prior to Indra Sawhney (1992), the Supreme Court had constructed the statute to allow for reservations in promotions in Southern Railway v. Rangachari (1962). Rangachari was particularly overturned by Indra Sawhney insofar as reservations in promotions were held there in accordance with Article 16(4) of the Constitution. Regarding the subject of whether reservations are allowed in cases of promotion under Article 16, Indra Sawhney particularly addressed it (4). The majority concluded that Article 16 does not authorise reservations in promotions (4). Given that it has been determined that reservations for people with disabilities do not fall within Article 16 of the Constitution, the current bench recognised this ratio and held (4), As a result, handicapped people are not subject to the reservation in promotion bar in the Indira Sawhney case under Article 16(4).
Whether or not promotions are subject to reservations for those covered by “The people with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995”?
The court affirmed that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 permits reservations in promotion and deemed the law established in Rajeev Kumar Gupta to be good in law.
CONTENTION:
Referring to the facts presented by the parties and after reviewing the court’s rulings and the arguments put out by the parties, we believe that there is no need for clarification given the clear language of the rulings. Within a period of four months from today, the Union of India is required to give guidelines for the reservation in promotion as outlined in Section 34 of the RightsOof Persons with Disabilities Act, 2016.
INFERENCE:
In this case we heard about the reservation of seats in the promotion of the disable person. As we can see, reservation for disable is already given Under the Constitution of India. And promotions are something which is fully based on the capacity and eligibility of the individual. Whether he or she can fulfil the needs of the post if he or she clears the eligibility criteria. Then there should be no problem to even promote a disable person but if he is not, same as in the case then they should not expect the promotion or the reservation. Promotion is meant not only for better position of the individual in the company but also for the greater responsibility. And incompetent person not physically but also in work cannot just ask reservation, if he was competent then he would able to clear the eligibility criteria. It may lead to greater loss in future for the company or the government. So it should be fully based on the merit of an individual.
REFERENCES
- Rajiv Kumar Gupta & Others v. Union of India & Others (2016) 6 SCALE 417
- Union ofOIndia and Another v. National Federation of the Blind and Others, (2013) 10 SCC 772
- NationalOFederation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9) Scale 611, in para 10
- IndraOSawhney & Others v. Union of India &OOthers (1992) Supp. 3 SCC 215
- Southern Railway v. Rangachari AIR 1962 SC 36
SUBMITTED BY
ISHIKA CHETRY
NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM