SIDDARAJUversusSTATE OF KARNATAKA & ORS.

                          [2020] 1 S.C.R. 1175                           1175


                           SIDDARAJU                                     A
                                  v.
                STATE OF KARNATAKA & ORS.
                   (Civil Appeal No. 1567 of 2017)
                       JANUARY 14-15, 2020                               B
    [ROHINTON FALI NARIMAN, ANIRUDDHA BOSE
          AND V. RAMASUBRAMANIAN, JJ.]
      Persons with Disabilities (Equal opportunities, Protection of
Rights and full participation) Act, 1995 – Reservation in promotion
                                                                         C
of persons with disabilities – A view has been taken by the Supreme
Court in Rajiv Kumar Gupta & Ors. v. Union of India & Ors. (2016)
6 SCALE 417: (2016) 13 SCC 153: [2016] 3 SCR 407 in affirmation
– However, it was contended that the Prohibition laid down by the
majority in Indra Sawhney & Ors. v. Union of India & Ors. (1992)
Supp. 3 SCC 125 applies not only to Article 16(4) but also Article       D
16(1) of the Constitution of India and inference to the contrary is
not justified – Also, there was a Office Memorandum dated
29.12.2005 issued by the Government which stated that the quantum
of reservation as “2(ii) Three percent of the vacancies in case of
promotion to Group D, and Group C posts in which the element of
                                                                         E
direct recruitment, if any, does not exceed 75%, shall be reserved
for persons with disabilities...”– The said O.M. was considered in
the Union of India and Another v. National Federation of the Blind
and others (2013) 10 SCC 772, it held that the computation of
reservation for persons with disabilities has to be computed in case
of Group A,B,C and D posts in identical manner, accordingly clauses      F
of O.M. dated 29.12.2005 contrary to this reasoning are struck
down – It was also held that the reservation for persons with
disabilities has nothing to do with the ceiling of 50% and hence,
Indra Sawhney is not applicable with respect to the disabled persons
– The instant batch of cases were referred to the larger Bench for
                                                                         G
consideration – The larger Bench, held: In Rajeev Kumar Gupta &
Ors. v. Union of India & Ors (2016) 13 SCC 153 it was held the
rule of no reservation in promotions as laid down in Indra Sawhney
has no application to persons with disabilities – This judgment cannot
be faulted when it stated that Indra Sawhney dealt with a different
                                                                         H
                                1175
1176            SUPREME COURT REPORTS                      [2020] 1 S.C.R.


 A     problem and, therefore, cannot be followed – Consequently, the
       reference stands answered by stating that the judgment Union of
       India and Another v. National Federation of the Blind and others
       (2013) 10 SCC 772 as clarified in National Federation of the Blind
       v. Sanjay Kothari, Secretary Department of Personnel and Training,
       2015 (9) Scale 611 and the judgment in Rajeev Kumar Gupta and
 B
       others v. Union of India & Ors. (2016) 13 SCC 153 case will bind
       the Union and the State Governments and must be strictly followed
       notwithstanding the O.M. dated 29.12.2005, in particular.
             Union of India and Another v. National Federation of
             the Blind and Others, (2013) 10 SCC 772 : [2013] 9
 C           SCR 1023; National Federation of the Blind v. Sanjay
             Kothari, Secy. Deptt. of Personnel and Training, 2015
             (9) Scale 611; Rajeev Kumar Gupta & Others v. Union
             of India & Others (2016) 13 SCC 153 : [2016] 3 SCR
             407 – held applicable.
 D           Indra Sawhney v. Union of India, (1992) Supp 3 SCC
             217 : [1992] 2 Suppl. SCR 454 – held inapplicable.
                             Case Law Reference
       [2013] 9 SCR 1023             held applicable       Paras 5,11
 E     (2015) 9 Scale 611            held applicable       Paras 8,11
       [2016] 3 SCR 407              held applicable       Paras 9,11
       [1992] 2 Suppl. SCR 454       held inapplicable     Para 9
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1567
 F     of 2017.
            From the Judgment and Order dated 23.03.2016 of the High Court
       of Karnataka at Bengaluru in W.P. No. 42475 of 2015 (S-CAT)
                                       With

 G           Review Petition (C) No. 36 of 2017 in Civil Appeal No. 5389 of
       2016, Civil Appeal Nos. 300, 299, 310 of 2020, 6092, 6095 of 2019.
             Ms. Madhavi Divan, Sanjay Jain, ASGs, S.K. Rungta, Jayna
       Kothari, Ms. Kiran Suri, Nakul Dewan, Sr. Advs., Shivankur Shukla,
       Prashant Singh, Ms. Amita Singh Kalkal, Ms. Rukhsana Choudhury,
       Ms. Vaishali Verma, Akshay Amritanshu, Arvind Kumar Sharma,
 H
        SIDDARAJU v. STATE OF KARNATAKA & ORS.                                1177


Ms. Priyanka Das, Ms. Swati Ghildiyal, Sumit Upadhyay, Ms. Jaikriti S.        A
Jadeja, Mukesh Kumar Maroria, Sachin Sharma, Rajan Kumar
Chourasiya, Padmesh Mishra, Arkaj Kumar, Shiv Mangal Sharma, Yuvraj
Sharma, Shirmanjal Sharma, Ms. Rachana Srivastava, Raj Bahadur,
Mrs. Anil Katiyar, Sudarshan Rajan, Dr. K.B. Sounder Rajan, Mahesh
Kumar, Ms. Meena Sehrawat, S.J. Amith, Ms. Aishwarya Kumar,
                                                                              B
Dr. (Mrs.) Vipin Gupta, Ms. Nandani Gupta, Krishna Kumar, Md. Shahid
Anwar, Zulfiqar Ali Khan, Rajan Mani, Ms. Reetu Kumar, Pukhrambam
Ramesh Kumar, Karun Sharma, Pradeep Misra, Suraj Singh, Prashant
Shukla, Ms. Anushree Shukla, Arsh Dhanotia, Ms. Pratibha Yadav, Purvish
Jitendra Malkan, Abhinav Ramkrishna, V. N. Raghupathy, Manendrapal
Gupta, Nishant Ramakantrao Katneshwarkar, Sachin Patil, Rahul Chitnis,        C
Aditya Pande, Advs. for the appearing parties.
      The Judgment of the Court was delivered by
      R. F. NARIMAN, J.
      1. This batch of cases before the Court has come to us on a             D
reference made by a Division Bench of this Court dated 03.02.2017.
The reference order reads as follows:
      “Delay condoned. Leave granted.
      Question which has arisen in this case is whether persons, governed
      under “The persons with Disabilities (Equal Opportunities,              E
      Protection of Rights and Full Participation) Act, 1995”, can be
      given reservation in promotion. A view has been taken by this
      Court in Rajiv Kumar Gupta & Others v. Union of India & Others
      – (2016) 6 SCALE 417 in the affirmative.
              Mr. Ranjit Kumar, learned Solicitor General, points out that    F
      the prohibition against reservation in promotion laid down by the
      majority in Indra Sawhney & Others v. Union of India & Others
      – (1992) Supp. 3 SCC 215 applies not only to Article 16(4) but
      also 16(1) of the Constitution of India and inference to the contrary
      is not justified.
                                                                              G
             Persons suffering from disability certainly require
      preferential treatment and such preferential treatment may also
      cover reservation in appointment but not reservation in promotion.
      Section 33 of the 1995 Act is required to be read and construed in
      that background.
                                                                              H
1178             SUPREME COURT REPORTS                           [2020] 1 S.C.R.


 A                 We find merit in the contention that the matter needs to be
             considered by the larger Bench.
                   Accordingly, we direct the matter be placed before Hon’ble
             the Chief Justice for appropriate orders.
                  Union of India is at liberty to file its affidavit within one
 B           week from today.”
               2. Parliament passed the Persons with Disabilities (Equal
       Opportunities, Protection of Rights and Full Participation) Act, 1995 being
       Act 1 of 1996. The statement of objects and reasons for the said Act
       states that a Conference held at Beijing, China, in December, 1992 had
 C     adopted the Proclamation on the Full Participation and Equality of People
       with Disabilities in the Asia and the Pacific region India being a signatory
       to the said proclamation found it necessary to enact a suitable legislation
       to provide for the special care that is necessary to remove discrimination
       against persons with disabilities and to make special provision for the
 D     integration of such persons into the social mainstream.
             3. Section 2(i) of the said Act defines “disability” as follows:-
                 “(i) “disability” means—
                 (i) blindness;
 E               (ii) low vision;
                 (iii) leprosy-cured;
                 (iv) hearing impairment;
                 (v) locomotor disability;
                 (vi) mental retardation;
 F               (vii) mental illness;”
             Section 2(t) defines “person with disability” as follows:-
             “(t) “person with disability” means a person suffering from not
             less than forty per cent of any disability as certified by a medical
 G           authority;”
              4. The Act then provides for Central and State Co-ordination
       Committees and prevention and early detection of disabilities. We are
       directly concerned with Chapter VI of the Act which deals with
       identification and reservation of posts for the purpose of employment.
 H
        SIDDARAJU v. STATE OF KARNATAKA & ORS.                                   1179
                   [R. F. NARIMAN, J.]

These Sections state as follows:-                                                A
      “32. Identification of posts which can be reserved for persons
      with disabilities.- Appropriate Governments shall-
      (a) identify posts, in the establishments, which can be reserved
      for the persons with disability;
                                                                                 B
      (b) at periodical intervals not exceeding three years, review the
      list of posts identified and up- date the list taking into consideration
      the developments in technology.
      33. Reservation of posts.- Every appropriate Government shall
      appoint in every establishment such percentage of vacancies not            C
      less than three per cent for persons or class of persons with
      disability of which one per cent each shall he reserved for persons
      suffering from-
      (i) blindness or low vision;
      (ii) hearing impairment;                                                   D
      (iii) locomotor disability or cerebral palsy,
      in the posts identified for each disability:
      Provided that the appropriate Government may, having regard to
      the type of work carried on in any department or establishment,
      by notification subject to such conditions, if any, as may be specified    E
      in such notification, exempt any establishment from the provisions
      of this section.”
       5. In Union of India and Another vs. National Federation of
the Blind and Others, (2013) 10 SCC 772, this Court went into the
provisions of the aforesaid Act in some detail and, in particular, Sections      F
32 and 33. The Court considered Office Memorandum dated 29.12.2005
of the Government of India, which stated that the quantum of reservation
would be as follows:-
      “2. QUANTUM OF RESERVATION
      (i) Three percent of the vacancies in case of direct recruitment to        G
      Group A, B, C and D posts shall be reserved for persons with
      disabilities of which one per cent each shall be reserved for
      persons suffering from (i) blindness or low vision, (ii) hearing
      impairment and (iii) locomotor disability or cerebral palsy in the
      posts identified for each disability;                                      H
1180            SUPREME COURT REPORTS                             [2020] 1 S.C.R.


 A           (ii) Three percent of the vacancies in case of promotion to Group
             D, and Group C posts in which the element of direct recruitment,
             if any, does not exceed 75%, shall be reserved for persons with
             disabilities of which one per cent each shall be reserved for persons
             suffering from (i) blindness or low vision, (ii) hearing impairment
             and (iii) locomotor disability or cerebral palsy in the posts identified
 B
             for each disability.
       The Court then held as follows:
             “39) It has also been submitted on behalf of the appellants herein
             that since reservation of persons with disabilities in Group C and
 C           D has been in force prior to the enactment and is being made
             against the total number of vacancies in the cadre strength
             according to the OM dated 29.12.2005 but the actual import of
             Section 33 is that it has to be computed against identified posts
             only. This argument is also completely misconceived in view of
             the plain language of the said Section, as deliberated above. Even
 D           for the sake of argument, if we accept that the computation of
             reservation in respect of Group C and D posts is against the total
             vacancies in the cadre strength because of the applicability of the
             scheme of reservation in Group C and D posts prior to enactment,
             Section 33 does not distinguish the manner of computation of
 E           reservation between Group A and B posts or Group C and D
             posts respectively. As such, one statutory provision cannot be
             interpreted and applied differently for the same subject-matter.
             40) Further, if we accept the interpretation contended by the
             appellants that computation of reservation has to be against the
 F           identified posts only, it would result into uncertainty of the
             application of the scheme of reservation because experience has
             shown that identification has never been uniform between the
             Centre and the States and even between the Departments of any
             Government. For example, while a post of middle school teacher
             has been notified as identified as suitable for the blind and low
 G           vision by the Central Government, it has not been identified as
             suitable for the blind and low vision in some States such as Gujarat
             and J&K, etc. This has led to a series of litigations which have
             been pending in various High Courts. In addition, Para 4 of the
             OM dated 29.12.2005 dealing with the issue of identification of
 H           jobs/posts in sub clause (b) states that list of the jobs/posts notified
 SIDDARAJU v. STATE OF KARNATAKA & ORS.                                 1181
            [R. F. NARIMAN, J.]

by the Ministry of Social Justice & Empowerment is not exhaustive       A
which further makes the computation of reservation uncertain
and arbitrary in the event of acceptance of the contention raised
by the appellants.
42) A perusal of Indra Sawhney would reveal that the ceiling of
50% reservation applies only to reservation in favour of other          B
Backward classes under Article 16(4) of the Constitution of India
whereas the reservation in favour of persons with disabilities is
horizontal, which is under Article 16(1) of the Constitution. In
fact, this Court in the said pronouncement has used the example
of 3% reservation in favour of persons with disabilities while
dealing with the rule of 50% ceiling. Para 812 of the judgment          C
clearly brings out that after selection and appointment of candidates
under reservation for persons with disabilities they will be placed
in the respective rosters of reserved category or open category
respectively on the basis of the category to which they belong
and, thus, the reservation for persons with disabilities per se has     D
nothing to do with the ceiling of 50%. Para 812 is reproduced as
follows:-
“812. ……all reservations are not of the same nature. There are
two types of reservations, which may, for the sake of convenience,
be referred to as ‘vertical reservations’ and ‘horizontal               E
reservations’. The reservations in favour of Scheduled Castes,
the Scheduled Tribes and the other backward classes [under Article
16(4)] may be called vertical reservations whereas reservations
in favour of physically handicapped [under Clause (1) of Article
16] can be referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations - what is called      F
inter-locking reservations. To be more precise, suppose 3% of
the vacancies are reserved in favour of physically handicapped
persons; this would be a reservation relatable to Clause (1) of
Article 16. The persons selected against this quota will be placed
in the appropriate category; if he belongs to S.C. category he will     G
be placed in that quota by making necessary adjustments; similarly,
if he belongs to open competition (O.C.) category, he will be placed
in that category by making necessary adjustments. Even after
providing for these horizontal reservations, the percentage of
reservations in favour of backward class of citizens remains -
and should remain - the same……”                                         H
1182            SUPREME COURT REPORTS                             [2020] 1 S.C.R.


 A           Having concluded thus, the Court then held:
             “50) Employment is a key factor in the empowerment and inclusion
             of people with disabilities. It is an alarming reality that the disabled
             people are out of job not because their disability comes in the way
             of their functioning rather it is social and practical barriers that
 B           prevent them from joining the workforce. As a result, many
             disabled people live in poverty and in deplorable conditions. They
             are denied the right to make a useful contribution to their own
             lives and to the lives of their families and community.
             51) The Union of India, the State Governments as well as the
 C           Union Territories have a categorical obligation under the
             Constitution of India and under various International treaties
             relating to human rights in general and treaties for disabled persons
             in particular, to protect the rights of disabled persons. Even though
             the Act was enacted way back in 1995, the disabled people have
             failed to get required benefit until today.
 D
             52) Thus, after thoughtful consideration, we are of the view that
             the computation of reservation for persons with disabilities has to
             be computed in case of Group A, B, C and D posts in an identical
             manner viz., “computing 3% reservation on total number of
             vacancies in the cadre strength” which is the intention of the
 E           legislature. Accordingly, certain clauses in the OM dated
             29.12.2005, which are contrary to the above reasoning are struck
             down and we direct the appropriate Government to issue new
             Office Memorandum(s) consistent with the decision rendered by
             this Court.
 F           53) Further, the reservation for persons with disabilities has nothing
             to do with the ceiling of 50% and hence, Indra Sawhney is not
             applicable with respect to the disabled persons.”
              6. Certain directions were then made in the end of the judgment
       to ensure proper implementation of the reservation policy for the disabled
 G     and to protect their rights.
             7. We may mention that, pursuant to this Court’s judgment, the
       Union of India issued Office Memorandum dated 03.12.2013 in which it
       made only one change in the Office Memorandum dated 29.12.2015 as
       follows:-
 H
        SIDDARAJU v. STATE OF KARNATAKA & ORS.                               1183
                   [R. F. NARIMAN, J.]

      “5. Keeping in view the directions of the Hon’ble Supreme Court,       A
      Para 14 of the OM dated 29.12.2005 is modified to the following
      extent:
      “Reservation for persons with disabilities in Group ‘A’ or Group
      ‘B’ posts shall be computed on the basis of total number of
      vacancies occurring in direct recruitment quota in all the Group       B
      ‘A’ posts or Group ‘B’ posts respectively, in the cadre.”
       Contempt petitions were filed stating that the directions contained
in this judgment have not been carried out, which is not the subject-
matter before us. These petitions have been ordered to be listed after
the decision in these cases.                                                 C
       8. The next important judgment that needs to be adverted to in
this behalf is the judgment in National Federation of the Blind vs.
Sanjay Kothari, Secy. Deptt. of Personnel and Training, 2015 (9)
Scale 611, in para 10 of which para 51 of the earlier judgment was
clarified as follows:-                                                       D
      “10. Para 51 of the order on which reliance has been placed by
      Shri Rungta must be viewed in the context of the questions arising
      for answer before the Court i.e. the manner of computation of
      vacancies in case of Groups A, B, C and D posts. All that the
      Court in the aforesaid paragraph 51 has held is that the manner of     E
      such identification must be uniform in the case of all the groups
      viz. A, B, C and D. Nothing beyond the above should be read in
      paragraph 51 of the Courts’ order as aforesaid.”
       9. We now come to the Division Bench judgment of this Court
reported as Rajeev Kumar Gupta & Others v. Union of India &                  F
Others – (2016) 13 SCC 153. In this judgment, the posts in Prasar
Bharati were classified into four Groups–A to D. The precise question
that arose before the Court is set out in para 5 thereof in which it is
stated that the statutory benefit of 3 per cent reservation in favour of
those who are disabled is denied insofar as identified posts in Groups A
and B are concerned, since these posts are to be filled through direct       G
recruitment. After noticing the arguments based on the nine-Judge bench
in Indra Sawhney vs. Union of India, 1992 Supp (3) SCC 217, this
Court held:
      “14. We now examine the applicability of the prohibition on
      reservation in promotions as propounded by Indra Sawhney. Prior        H
1184            SUPREME COURT REPORTS                          [2020] 1 S.C.R.


 A           to Indra Sawhney, reservation in promotions were permitted under
             law as interpreted by this Court in Southern Railway v.
             Rangachari, AIR 1962 SC 36. Indra Sawhney specifically
             overruled Rangachari to the extent that reservations in promotions
             were held in Rangachari to be permitted under Article 16(4) of
             the Constitution. Indra Sawhney specifically addressed the
 B
             question whether reservations could be permitted in matters of
             promotion under Article 16(4). The majority held that reservations
             in promotion are not permitted under our constitutional scheme.
             15. The respondent argued that the answer to Quetion 7 in Indra
             Sawhney squarely covers the situation on hand and the reasons
 C           outlined by the majority opinion in Indra Sawhney 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 ruling arose in the context of reservations in favour of
 D           backward classes of citizens falling within the sweep of Article
             16(4).
             xxx xxx
             21. The principle laid down in Indra Sawhney is applicable only
 E           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) if they otherwise
             deserve such treatment. However, for creating such preferential
 F           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
 G           rule of no reservation in promotions as laid down in Indra
             Sawhney has clearly and normatively no application to PWD.
       The Court then concluded:
             24. A combined reading of Sections 32 and 33 of the 1995 Act
             explicates a fine and designed balance between requirements of
 H           administration and the imperative to provide greater opportunities
        SIDDARAJU v. STATE OF KARNATAKA & ORS.                                  1185
                   [R. F. NARIMAN, J.]

       to PWD. Therefore, as detailed in the first part of our analysis,        A
       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
                                                                                B
       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 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 percent reservation
       to PWD in all identified posts in Group A and Group B, irrespective      C
       of the mode of filling up of such posts. This writ petition is
       accordingly allowed.”
       10. After hearing learned counsel appearing on behalf of all the
parties including the learned Additional Solicitor General, we are of the
view that the judgment of this Court cannot be faulted when it stated           D
that Indra Sawhney dealt with a different problem and, therefore, cannot
be followed.
      11. 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            E
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            F
Memorandum dated 29.12.2005, in particular. Since the reference has
been disposed of by us today, contempt petitions be listed for hearing.
       Civil Appeal No. 1567 OF 2017:
       12. Application for impleadment in C.A. 1567/2017 is allowed.
                                                                                G
        13. This matter arises out of the order of the Central Administrative
Tribunal, Bangalore Bench, Bangalore dated 24.07.2015 in which the
2005 O.M has been followed without reference to any of the judgments
of this Court. A writ petition from the aforesaid judgment was dismissed
by the Karnataka High Court on 23.03.2016, stating that the precise
                                                                                H
1186              SUPREME COURT REPORTS                          [2020] 1 S.C.R.


 A     question of law that arises in this case was kept open. Accordingly, we
       set aside the judgment of the CAT and consequently that of the High
       Court. The case is to be governed by the three decisions of this Court
       outlined above, which judgments have to be followed by the Union of
       India and the States. It is not necessary to pass any further directions.
       The appeal is disposed of accordingly.
 B
               Review Petition (C) No. 36 OF 2017 in Civil Appeal No. 5389 of
       2016:
               14. Delay is condoned.
               15. This matter stands dismissed in view of today’s judgment.
 C
               SLP (C) No. 11632 of 2017:
               16. Leave granted.
              17. The mpugned judgment of the High Court dated 22.06.2016 in
       this appeal, after referring to the judgment of this Court in National
 D     Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel
       and Training, 2015 (9) Scale 611 arrived at the following conclusion:
               “8. The contention of the learned Attorney General was that except
               for sub-section 2 of Section 47, there was no other provision under
               the Disabilities Act dealing with the promotions and, therefore, on
 E             the strength of sub-section 2 of Section 47 of the Disabilities Act,
               it cannot be contended that the Act provides for reservation in the
               matter of promotion. In paragraphs 9 and 10 of the judgment and
               order dated 1st September, 2015, the Apex Court has dealt with
               issue of reservation in promotion. In paragraph 10 of the judgment
               and order dated 1st September, 2015, the Apex Court has explained
 F
               paragraph 51 of the earlier judgment and order dated 8th October,
               2013 by observing that what is observed in paragraph 51 is about
               the manner of computation of vacancies in case of all the Groups
               viz. A, B, C and D posts. That is the reason why the Apex Court
               declined to initiate any action for contempt on the basis of
 G             allegations that there is no provision made for the reservation of
               persons with disabilities in promotion. In terms the Apex Court
               observed that what is held in paragraph 51 of the judgment and
               order dated 8th October, 2013 cannot be construed to mean that
               there is a direction issued to provide for the reservation for the
               persons with disabilities even in the promotional posts.
 H
        SIDDARAJU v. STATE OF KARNATAKA & ORS.                                  1187
                   [R. F. NARIMAN, J.]

      9. In view of the clarification issued by the Apex Court under the        A
      order dated 1st September, 2015 in Contempt Petition (Civil) No.
      499 of 2014, now the directions contained in paragraph 13 of the
      judgment and order dated 4 th December, 2013 cannot be
      implemented insofar as the same deal with giving benefit of
      reservation to the persons with disabilities in the matter of promotion
                                                                                B
      to the posts in the Indian Administrative Service by applying the
      Office Memorandum dated 29th December, 2005.”
       Consequently, the High Court held that no action can be initiated
in the contempt petition on the ground that reservation had not been
provided in the matter of promotion. We may hasten to add that this is
not a correct reading of the law laid down by this Court. National              C
Federation of the Blind vs. Sanjay Kothari, Secy. Deptt. of Personnel
and Training, 2015 (9) Scale 611 was a judgment in a contempt petition
in which the contention taken up by the petitioner was repelled by stating
that para 51 of the 2013 judgment has held that the manner of
identification of posts of all groups must be uniform and nothing beyond.       D
After the declaration of the law in Rajeev Kumar Gupta & Others v.
Union of India & Others – (2016) 13 SCC 153 it is now clear beyond
doubt that the O.M. of 2005 cannot be given effect to when it is in the
teeth of the 2016 judgment. On the basis of this judgment, the impugned
judgment is set aside and the contempt petition is restored to the file.
The petition be disposed of on merits.The appeal is disposed of                 E
accordingly.
      SLP (C) No. 21197 of 2017:
      18. Leave granted.
      19. In view of our judgment today, the appeal is dismissed.               F
      SLP (C) No. 4650 of 2019:
      20. Leave granted.
       21. Having heard learned senior counsel for the appellant at some
length, we may note that paragraph 4(C) of the counter affidavit states         G
as follows:
      “(C) That Chhattisgarh State Power Holding Company Ltd. has
      appointed a committee for identification of the post upon which
      reservation in promotion will be applicable. The said Committee
      in its meeting held on 10.01.2017 decided that the post of Executive      H
      Engineer, Mechanical and Electrical in transmission, distribution
1188                SUPREME COURT REPORTS                        [2020] 1 S.C.R.


 A             and generation companies where the Executive Engineer has to
               visit sites and perform various acts personally, it is not advisable
               to keep such post under reservation. However, reservation will
               be applicable in promotion to the post of Executive Engineer,
               Computer Science, Information & Technology and Civil
               Engineering. The said decision of the company has not been
 B             challenged till date and thus binding on all the employees as per
               the provisions of Rights of Persons with Disabilities Act, 2016.
               On this ground also the Special Leave Petition filed by the
               Petitioner is not maintainable.”
               22. It is clear that the Internal Committee of respondent No. 2
 C     has applied its mind to the post of Executive Engineer, Mechanical and
       Electrical, and has opined that in the said post, reservation for the
       physically disabled will not be possible for the reason given therein.
               23. Learned senior counsel appearing on behalf of the appellant
       has pointed out that as per the Gazette Notification dated 31.05.2001, it
       is an Expert Committee that has to identify, keeping in view the provisions
 D     of the Persons with Disabilities (Equal Opportunities, Protection of Rights
       and Full Participation) Act, 1995, and Section 32 in particular, suitable
       posts for persons with disabilities, and this has not been done in the
       present case. Since this point has not been argued in any of the cross
       appeals, we reserve liberty to the appellant to challenge the Internal
       Committee’s findings on grounds available to them in law. Apart from
 E     this, the impugned judgment does not call for interference. The appeal is
       disposed of accordingly.
               24. Needless to add if such a challenge succeeds, the three
       judgments pointed out by us in the Judgment in the lead matter, i.e., Civil
       Appeal No. 1567 of 2017 will have to be applied and followed.
 F             Civil Appeal No. 6092 of 2019:
               25. The appeal is dismissed in accordance with today’s judgment.
       Interim order dated 08.07.2019 stands vacated. It has been
       contended before us that there are only 2 Group ‘A’ posts available/
       identified as a result of which the reservation will have to be
       worked in accordance with the roster system. We may only clarify that
 G     we have not, in any manner, indicated as to how such system should be
       worked.
               Civil Appeal No. 6095 of 2019:
               26. The appeal is dismissed in view of today’s judgment.

 H     Ankit Gyan                                                Matters disposed of.