Tuesday, March 23, 1993

Supreme Court of India | National Federation Of Blind Vs. Union Public Service Commission | Dated 23 Mar 1993

Context of the Judgement

The visually impaired persons constitute a significant section of our  society. As  it is  necessary  to  encourage   their participation  in every walk of life, the Central  Ministry of Welfare has been undertaking various measures to  utilise their potentialities.  The Governments have launched schemes to  educate, train and provide them with useful employment. The Central Government has provided 3% reservation in  Group C and D posts for PH candidates (including blind and partially blind, while demand is growing for reservations in Group A and B posts.

The Standing Committee of the Ministry of Welfare undertook identification of jobs in these categories and submitted its report on October 31, 1986.  Para 8 thereof related to the blind. It took note of reading and writing deficiency and suggested  the provision of allowance.  And found  that the specified 416 posts in Group A and B are suitable for  blind and  partially blind.  So, the Ministry of Personnel  issued office memorandum dated November 25, 1986 a  accepting the report and took policy decision regarding identification  of jobs for the physically handicapped persons in Group A and B posts filled to be by direct recruitment in Central  Government Services and Public Sector Undertakings.

This  court  examined  the memorandum  and  found  that the Government had taken cognizance of the identified jobs; that the Government had decided about the recruitment of  handicapped persons  to these posts; that the departments would supplement the list further;  that the Ministries/ Departments would inform the UPSC about preferential treatment to handicapped candidates; that  the UPSC had agreed in principle to  give preference; and  that the Department of Personnel and Training would  be issuing general instructions for the purpose.

However, the decisions were not implemented for seven years. Therefore, the petitioner approached Hon'ble Supreme Court seeking a  writ  in the nature of mandamus directing the Union of India and the UPSC to permit the blind candidates to compete for the I.A.S. and Allied Services and to provide them facility of  writing the  civil services examination either in Braille Script  or with the help of a scribe.

On hearing the counsel for the petitioner, himself  visually handicapped, the Hon'ble Court, held as below :-

The performance of the counsel for the  petitioner before us  has amply proved the point that  the  visually handicapped  persons can perform the jobs entrusted to them with  equal  efficiency.  However the question  of  giving preference  to the handicapped in the matter of recruitment to  the identified posts is a matter for the  Government  of India  to decide.  The Government of India is  commended  to decide the question of providing preference/reservation  to the handicapped in Group A and B Posts.

The Hon'ble Supreme Court further held that there are number of post  which are  required  to  be  filled  through the  civil  services examinations and other competitive examinations conducted by the  Commission,  so the observations of the UPSC  that the posts  identified as suitable to be held by  the  physically handicapped  persons, particularly those identified for the blind  were  not  required  to be filled  on  the  basis  of competitive   examination  conducted  by   the Commission, appeared to be incorrect.  Group  A  and  B posts in  the category  of  Administrative Officers  are necessarily to be filled as a result of  civil services  examination  held  by the UPSC.  If  some  of the identified  posts in the Indian Administrative Service and other  Allied  Services can  be  filled  from amongst the visually  handicapped persons, there was no reason why they should not be permitted to sit and write the civil  services examination.

Judgement:

Equivalent citations: 1993 AIR 1916, 1993 SCR (2) 556

PETITIONER: NATIONAL FEDERATION OF BLIND
Vs.
RESPONDENT: UNION PUBLIC SERVICE COMMISSION AND OTHERS

DATE OF JUDGMENT 23/03/1993

BENCH:
KULDIP SINGH (J)
KASLIWAL, N.M. (J)

 CITATION:
 1993 AIR 1916          1993 SCR  (2) 556
 1993 SCC  (2) 411     JT 1993 (2) 541
 1993 SCALE  (2)181

ORIGINAL JURISDICTION
Writ Petition (C) No. 655 of 1991. 
(Under Article 32 of the Constitution of India). 

Santosh Kumar Rungta and R.P. Gupta for the Petitioner.
V.C. Mahajan, Ms. Niranjana Singh and Ms. A. Subhashini for the Respondents.

Judgment Authored by KULDIP SINGH, J.

National Federation of Blind a representative body of visually handicapped persons in India has filed this petition under Article 32 of the Constitution of India seeking a writ in the nature of mandamus directing the Union of India and the Union Public Service Commission to permit the blind candidates to compete for the Indian Administrative Service and the Allied Services and further to provide them the facility of writing and civil services examination either in Braille-script or with the help of a Scribe. Braille is a system of writing for the blind in which the characters consist of raised dots to be read by the fingers. Further relief sought in the petition is that Group A and B posts in Government and public sector undertakings which have already been identified for the visually handicapped persons be offered to them on preferential basis.

The visually handicapped constitute a significant section of our society and as such it is necessary to encourage their participation in every walk of life. The Ministry of Welfare, Government of India has been undertaking various measures to utilise the potentialities of the visually handicapped persons. The Central as well as the State Governments have launched several schemes to educate, train and provide useful employment to the handicapped. The Central Government has provided reservations to the extent of 3% vacancies in Group C and D posts for the physically handicapped including blind and partially blind. There has been a growing demand from the visually handicapped persons to provide reservations for them in Group A and B posts under the Central Government. The Ministry of Welfare, Government of India has a standing Committee or identification of jobs in various Ministries/Departments and public sector undertakings for the physically handicapped. By an order dated December 30, 1985 the Government of India directed the Standing Committee to undertake the identification of jobs for the handicapped in Group A and B Services under the Government and public sector undertakings.

The Committee submitted its report which was published on October 31, 1986. Copy of the report has been placed on the record of this petition. In the introduction to the report given by Mr. M.C. Narsimhan, Joint Secretary to Government of India and Chairman, Stating committee on identification of jobs for handicapped, it has been stated as under:-
"A Sub Committee, which was set up to assist the Standing Committee visited a large number of Public Sector Undertakings and observed people actually working in a variety of jobs and the working conditions in which these jobs are performed. The Sub Committee had detailed discussions with the Chiefs and Senior Officers of the Public Sector Undertakings as also with officers of the Central Government Departments. A fist of the public sector undertakings and the list of the officers of the Undertakings with whom the Sub Committee had discussions is annexed to the report. The Committee after detailed discussions and on- the-spot study has prepared a comprehensive list of 416 categories in Group A and B posts in Government Offices and Public Sector Undertakings, with their jobs descriptions, the physical requirement of each group of job and matched them with various categories of disabilities."
The Committee devoted special attention to the visually handicapped. Para 8 of the report which relates to the blind is as under:-

"However, in the case of the blind the position is somewhat different. Seeing, reading, writing and movement are essential ingredients of most Government jobs. Therefore, a similar approach in respect of blind persons may be difficult. It would not be possible to generalise that blind person can do most jobs as we have found for those with locomotor and hearing disabilities. The Committee found that in higher posts is Government the help of a personal assistant or a stenographer is generally available. But this facility is. not available even in higher posts in public sector undertakings. Wherever this facility is available a blind person may not find it difficult, in certain groups of posts, to handle the job. It is also possible, in relation to other posts where stenographic assistance is not available that some other facilities can be provided to a blind employee. To compensate 'reading deficiency, readers' allowance can be provided to blind employees to enable them to engage a reader.

Similarly, to compensate for "writing deficiency", the blind employee should be required to know typing. Adequate knowledge of typing should be prescribed as an essential qualification for blind employees for public employment. Where mobility may also be one of the main ingredients of a job it is difficult to compensate blind employees for this "deficiency. The Committee would also emphasise that the blind employee should be fully responsible for the duties assigned to them, despite the provision of reader's allowance and typing skill. The Committee would also suggest that the maximum reader's allowance should be limited to Rs.200 p.m. to blind employees recruited to Group A and B post.' The Committee has identified about 416 categories of Group A and B posts which are suitable for the handicapped. The Committee has further specified that the visually handicapped (blind and partially blind) are suitable for appointment to the following categories of Group A and B post:-

No. in the List       Category of       Group
Annexed to the Post
Report
------------------------------------------------------------
178 to 187      Hindi officers                    A & B
191 to 192      Job Analyst                    A & B
193 to 199      Labour Welfare Officers     A & B    
200 to 209      Law Officers                    A & B
237 to 242      Personal Assistants            B
243 to 256      Personnel Officers            A & B
279 to 291      Public Relations Officers    A & B
295 to 317      Research Officers            A & B
354 to 363      Training Officers            A & B
364 to 376 Administrative Officer
        (Non Secretarial)    A
377 to 384      Administrative Officers
       (Secretarial-Sr.)    A
385 to 401 Administrative Officers
        (Secretarial-Junior)            A & B
409          Asstt. Admin. Officer
------------------------------------------------------------

We have only quoted the list of categories from the report to illustrate the point that the Committee appointed by the Government has in its report identified certain categories of posts to which the blind and the partially-blind can be appointed.

Government of India Through Ministry of Personnel issued office memorandum dated November 25, 1986 wherein it accepted the report of the Committee and took a policy decision that in respect of the posts identified by the Committee the handicapped persons shall be given preference in the matter of recruitment to those posts. The office memorandum is re-produced hereunder:
"No.F.36034/4/86-Estt.(SCT) 
Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training .............. 
New Delhi, the 25th November, 1986 
OFFICE MEMORANDUM 
Subject:- Identification of jobs for the physically handicapped persons in Groups 'A' and 'B' posts filled by direct recruitment in the Central Government services and Public Sector Undertakings. 
The undersigned is directed to say that with a view to effecting optimum utilisation of potentialities of physically handicapped which constitutes a significant section of the population in the country, the Ministry of Welfare constituted a Standing Committee for identification of jobs for the physically handicapped in the Central Government services and Public Sector Undertakings. 
The Standing Committee on identification of jobs set up a sub-Committee for on-the-spot identification of jobs for the physically handicapped persons in Group 'A and 'B' posts after making an in depth study of Undertakings as well as in consultation with the concerned authorities. 
This sub Committee in its Report (submitted to the parent Committee) identified 420 jobs in Group 'A' and Group posts/services alongwith the physical requirements and functional classifications of disabilities indicating what jobs can be held by each category of disabled people and with what disability. It has been decided that in respect of identified posts which can be held by physically handicapped persons preferences to physically handicapped persons will be ,given in the matter of recruitment to those posts. A copy of the report of the Committee referred to in para-1 is enclosed for information guidance and necessary action. The list of jobs identified by the Committee on suitable for being held by physically handicapped persons is not exhaustive. 
The Ministries/Departments can further supplement the list based on their knowledge for jobs requirements, essential qualifications etc. The Ministries/Departments after identifying all the posts which can be held by physically handicapped persons may inform the UPSC at the time of sending their requisitions for filling vacancies in respect of those posts, that preference is to be given to physically handicapped persons in the matter of recruitment. 
The UPSC have agreed in principle to give preference to physically handicapped persons in filling the identified posts. The Department of Personnel and Training will be issuing general instructions to enable preference being given to the physically handicapped persons in such cases. 
The Ministry of Finance etc. are requested to bring these instructions to the notice of all concerned.
Sd/-
(BATA K, DEY)
DIRECTOR (JCA)' 
From the office memorandum quoted above it is obvious that the Government of India has taken the following policy decisions to implement the Committee report:-
1. The Government of India has taken cognizance of the fact that the Standing Committee on identification of jobs through its Sub-Committee has identified 420 jobs in Group A and Group B posts/services along with the physical requirements and functional Classifications of disabilities indicating what jobs can be held by each category of disabled people and with what disability.
2. The decision has been taken that in respect of identified posts which can be held by physically handicapped persons preference to physically handicapped persons will be given in the matter of recruitment to those posts.
3. The list of jobs identified by the Committee is not exhaustive, the Ministries/Departments can further supplement the list based on their knowledge of job requirements, essential qualifications etc.
4. The Ministries/Departments after identifying all the posts which can be held by physically handicapped persons may inform the Union Public Service Commission at the time of sending their requisitions for filling vacancies in respect of those posts, that preference is to be given to physically handicapped persons in the matter of recruitment.
5. The Union Public Service Commission has agreed in principle to give preference to physically handicapped persons in filling identified posts.
6. The Department of Personnel and Training will be issuing general instructions to enable preference being given to the physically handicapped persons in such cases. 
Mr. S.K Rungta, learned counsel for the petitioner has contended that the memorandum dated November 25, 1986 was issued more than seven years back but so far the decisions taken therein have not been implemented. Mr. Rungta (himself visually handicapped) has argued his case with utmost clarity.  Mr. Rungta was fully conversant with all the relevant annexures to the petition. He referred to the relevant pages in the bulky paper book with perfect ease. We did not feel even for a moment that the case was being argued by a visually handicapped lawyer. Mr. Rungta's performance before us amply proves the point that the visually handicapped persons can perform the jobs entrusted to them with equal efficiency.

The question of giving preference to the handicapped in the matter of recruitment to the identified posts is a matter for the Government of India to decide. The matter is pending for decision with the Government of India for the last several years. While appreciating various measures undertaken by the Government to provide useful employment to the handicapped persons we commend the Government of India to decide the question of providing preference/reservation to the handicapped in Group A and B posts as expeditiously as possible.

So far as the claim of visually handicapped for writing the civil services examinations, in Braille-script or with the help of Scribe, is concerned, we are of the view that their demand is legally justified.

The fist of category A and B posts, identified as suitable for the visually handicapped by the Committee, includes number of posts which are filled as a result of the civil services examinations. When there are posts to which blind and partially-blind can be appointed, we see no ground to deprive them of their right to compete for those posts along with other candidates belonging to general category. Mr. V.K. Cherian, Under Secretary to Government of India, Ministry of Personnel in his affidavit dated March 10, 1992 filed before this Court has stated as under:-

"If there were Group 'A' and 'B' jobs, which could be filled up by the blind, the same should also be identified. Once the jobs were identified, they could be filled up from among the blind and also other handicapped persons such as deaf and orthopaedically handicapped...... Going by the Report of the Committee and the posts identified by it, the Union Public Service Commission made the observation that the posts identified as suitable to be held by the physically handicapped persons, particularly those identified for the blind are not such which are required to be filled on the basis of competitive examination conducted by the Commission'.

The observations of the Union Public Service Commission as projected by Mr. V.K. Cherian in his above quoted affidavit do not seem to be correct. After going through the list of the posts identified as suitable for visually handicapped (blind and partially-blind) it is obvious that there are number of posts which are required to be filled through the civil services examination and other competitive examinations conducted by the Commission. Group A and B posts in the category of Administrative Officers (Secretarial-Senior) and Administrative Officer (Secretarial-Junior) are necessarily to be filled as a result of civil services examination by the Union Public Service Commission. If some of the posts in the Indian Administrative Service and other Allied Services, as identified by the Committee, can be filled from amongst the visually handicapped persons then we see no reason why they should not be permitted to sit and write the civil services examination. We make it clear that once recruited to the lowest level of the service the visually handicapped persons shall not be entitled to claim promotion to the higher posts in the service irrespective of the physical requirements of the jobs. If in the hierarchy of promotional-posts it is found by the Government that a particular post is not suitable for the visually handicapped person he shall not have any right to claim the said post.

In the light of the above discussion we partly allow the writ petition and direct the Government of India and the Union Public Service Commission to permit the visually handicapped (blind and partially-blind) eligible candidates to compete and write the civil services examination which is ordinarily held yearly by the Union Public Service Commission.

We further direct that they shall be permitted to write the examination in Braille-script or with the help of a Scribe. There shall be no orders as to costs.

Petition allowed partly.

------

Monday, November 16, 1992

Supreme Court of India | Indra Sawhney v Union of India & Ors. | 16 November, 1992

Court:   Supreme Court of India
Bench M Kania, M Venkatachaliah, S R Pandian, . T Ahmadi, K Singh P. Sawant, R Sahai, B J Reddy
Caste Title:  Indra Sawhney v. Union of India, (1992) Supp 3 SCC 217
Equivalent citations: AIR 1993 SC 477, 1992 Supp 2 SCR 454
Date of Judgement:  16th November 1992

Case Summary: 

Popularly known as the Mandal Commission Case, Indra Sawhney v. Union of India is one of the most significant constitutional judgments delivered by the Supreme Court of India. Decided by a nine-judge Constitution Bench on 16 November 1992, the case fundamentally shaped India’s reservation jurisprudence and the constitutional understanding of equality and affirmative action.

The case arose after the Union Government implemented the recommendations of the Mandal Commission through an Office Memorandum dated 13 August 1990, granting 27% reservation in central government jobs for Other Backward Classes (OBCs). The decision triggered widespread protests and legal challenges questioning whether caste-based reservations violated the equality guarantees under Articles 14, 15, and 16 of the Constitution. 

In a landmark ruling, the Supreme Court upheld the constitutional validity of 27% reservation for socially and educationally backward classes under Article 16(4). The Court recognised that caste could be an important indicator of backwardness in Indian society, though it could not be the sole criterion. The judgment affirmed that affirmative action was an essential constitutional tool to remedy centuries of social exclusion and unequal access to public employment. 

At the same time, the Court introduced the influential “creamy layer” principle, holding that socially advanced members of backward classes must be excluded from reservation benefits to ensure that affirmative action reaches genuinely disadvantaged groups. The judgment also laid down the rule that reservations ordinarily should not exceed 50%, except in extraordinary circumstances. 

Another crucial aspect of the ruling was the Court’s holding that reservation under Article 16(4) applied only to appointments and not promotions. This aspect later led to constitutional amendments, including Article 16(4A), permitting reservation in promotions for Scheduled Castes and Scheduled Tribes under certain conditions.

The judgment remains the cornerstone of reservation law in India and continues to influence debates on social justice, backwardness, representation, and equality. Subsequent cases concerning reservation in promotions, the creamy layer doctrine, and the 50% ceiling have all drawn heavily from the principles evolved in Indra Sawhney

Affirmative action, which is commonly referred to in India as reservation, was an earnest attempt by the framers of the Constitution to bring in socio-economic equality in Indian society, particularly, the reservation in matters of Public Employment as provided in Article 16 of the Constitution.

The framers of the Constitution were aware and conscious of the lack of homogeneity of the Indian Society, and apart from the differences in religion, culture, language, etc. there existed people who were in comparison weaker than others – economically, socially and culturally. To ameliorate the conditions of weaker and backward classes, and to make them at par with the other sections of society, the Constitution gave us a mechanism to safeguard the Backward Classes and Scheduled Castes.

As such, provision for reservation was adopted in the Constitution. Reservation to the socially and economically deprived people as such is not a new concept enshrined in the Indian Constitution, but, has been in existence in the pre-constitutional era as well. It is important to mention here the reservation granted by the former princely state of Mysore on the recommendations of the committee set up in the year 1918. The demand for some kind of affirmative action had also been taken up before by people like Jyotibha Phule and others, and the British did give reservation to some of these classes but their motives were always suspect. Over the years reservation has become more of a political tool than an earnest attempt to establish an egalitarian society.

A landmark in the issue of reservation was the judgement pronounced in Indra Sawhney Vs. Union Of India & Ors by the Supreme Court. 

In the year 1979, the then Prime Minister Shri Morarji Desai appointed the second Backward Classes Commission under Article 340 of the Constitution. The Commission was headed by B.P. Mandal and its mandate was to investigate the status of socially and educationally backward classes in India. When the Commission finally submitted its report in 1980, it recommended a reservation of 27 percent in government jobs for these castes.

The collapse of the Janata Party government complicated matters and the recommendations of the report could not be implemented. There wasn’t much progress in this respect for several years until Janata Dal regained power in 1989 and decided to implement the recommendations of the report and reserved 27 percent of the seats for socially backward classes.

This was followed by reservation and anti-reservation protests in large parts of the country some of which led to riots. When the government action was challenged before the Supreme Court by way of a writ petition, the then Prime Minister P V Narasimha Rao brought in another order which increased the reservation limit to 37 percent while including economically, socially and educationally backward classes as well. The five-judge bench referred the matter to a nine-judge bench.

Issues Before the Court

The court further framed issues, the adjudication of which was essential to deal with the situation at hand, some of these issues were:

  • Whether caste on its own constitutes a different class and whether economic criteria could by itself be the determinant of a class.
  • Whether Article 16(4) was an exception to Article 16(1) and is exhaustive in itself of the rights of reservation.
  • Does Article 16(4) allow classification of ‘Backward Classes’ into Backward Classes and Most Backward Classes or permit classification among them based on economic or other considerations.

Contentions of the petitioners:

The advocates for the petitioners led by Nani Palkhiwala argued that reservation further provoked the evil of the caste system and this evil will hamper India’s march towards being a welfare state. They further argued that if the reservation was continued it will replace standard with sub-standard and meritocracy with mediocrity. Petitioners also alleged that the Mandal report was in essence trying to rewrite the Constitution.

Contentions of the respondents:

The respondent State said that the report merely gives the backward classes a means to fulfil their just claims. They argued that the report was a continuation of the first minorities commission which also recommended affirmative action to right the wrongs that backward classes have faced for centuries together.

The court in its judgement laid down the following rules

  • Backward classes under Article 16(4) cannot be identified on the basis of economic criteria but the caste system also needs to be considered.
  • Article 16(4) is not an exception to clause 1 but an instance of classification as envisaged by clause 1.
  • Backward classes in article 16(4) were different from the socially and educationally backward mentioned in Article 15(4).
  • The concept of a creamy layer was laid down and it was directed that such a creamy layer be excluded while identifying backward classes.
  • Article 16(4) does allow the classification of backward classes into backward and more backward.
  • Reservation shall not exceed 50 percent, moreover, reservation in promotions shall not be allowed.
  • Any new disputes regarding criteria were to be raised in the Supreme Court only.

After Indra Sawhney case

A number of developments in the reservation have taken place after the Indra Sawhney case. The Parliament responded by enacting the 77th Amendment to the Constitution by adding clause [4A] to Article 16 in 1995, by virtue of which powers are conferred to the State to reserve seats in favour of SC & ST in promotions in Public Services if communities are not adequately represented in public employment. The Supreme Court upheld the validity of Article 16(4A) in M. Nagaraj Vs Union of India 2006, and it has laid three requirements:

  • SC & ST should be socially and educationally backward.
  • No adequate representation for SC and ST in public employment.
  • It shall not affect the over efficiency in the administration.

A number of state governments enacted the law in consequence of the 77th Amendment of the Constitution e.g., Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the posts in Civil Services of the State), 2018 was enacted by the State of Karnataka, and Supreme Court upheld its validity in 2019.

Earlier in BK Pavitra Case, Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation Act, 2002 was held to be unconstitutional on the ground that the State had not undertaken to determine ‘inadequacy of representation’,  ‘backwardness’ and the impact on overall efficiency before passing the law.

It is also pertinent to mention here that the apex court has also said that, there is no fundamental right which inheres in an individual to claim reservation in promotions, in the recent judgment of Mukesh Kumar V State of Uttarakhand which was pronounced in February 2020.

Conclusion

The court in the Indra Sawhney case tried to come up with a solution that is reasonable and strikes a fine balance between the society and rights of the backward classes. Removing economic criteria as the sole determinant of classification was also a step in the right direction as was the exclusion of the creamy layer who had already benefited enough from affirmative action. The Court ruling may have been considerate but subsequent amendments by successive governments to fiddle with the reservation criteria further established the fact that reservation above all had now well and truly become about vote-bank politics more than anything else.

In the almost three decades after this landmark ruling, the anti-reservation voices have started gathering momentum but the lawmakers should remind themselves of the duties the framers have given them through the means of the Constitution. The reservation phenomenon has certainly helped in uplifting the backward classes but there is a long way to go before all historical wrongs are set right.

Read the judgement in full here: 

Indra Sawhney v. Union of India 

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