Case BriefsSupreme Court

Supreme Court: In major win for women Officer in Indian Army, the division bench of Dr. DY Chandrachud* and MR Shah, JJ has held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational.

The Court hence, directed that the such requirement shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya;, (2020) 7 SCC 469.

Benchmarking with the Lowest Male Officer

The chart produced before the Court by the Army provided for

(i) The number of male officers passing out;

(ii) The number of male officers granted PC; and

(iii) The percentage of those granted PC under (ii) as a proportion of the officers passing out in (i).

The Court, however, noticed that the chart suppressed an important feature which is the number of officers who had not opted for being considered for PC (described in the parlance as ‘non-optees”). In other words, the percentage of male officers granted PC has been computed in the chart without disclosing the factual details of the number of male officers who had not opted for PC.

“Only when the number of “optees” is considered against the “non-optees”, can the percentage of male officers who were successfully granted PC be accurately determined. This is a significant omission on the part of the Army authorities from which an adverse interference must be drawn.”

The Policy Letter dated 15 January 1991 provides that the issue of applying competitive merit arises only if more than 250 officers fulfill the cut-off grade annually. If the number of officers who achieved the 60 per cent cut-off is less than 250, then evidently there is no requirement of assessing inter se competitive merit among the officers who meet the minimum threshold.

The statistics advanced by the Army authorities disclosed two things:

  1. In a number of years between 1994 and 2010, the ceiling limit of 250 had not been crossed. If the ceiling limit of 250 had not been crossed, the justification which has been offered for benchmarking women officers against the lowest male officers of the corresponding batch turns out to be specious and a red-herring. Evidently, in their anxiety to rebut the submission of the petitioners in regard to the disparity in the percentage of male and female officers granted PC, the statistics which have been placed on the record, completely demolish the case for benchmarking.
  2. In certain years such as 1999, 2000, 2001, 2004, 2005, 2006 and 2007, the ceiling of 250 was crossed for the male officers. This again belies the claim that benchmarking is crucial to maintain the integrity of competitive merit for grant of PC, as envisaged by the Policy Letter dated 15 January 1991. The data, in fact, shows that in several years, the ceiling was crossed, which is an indicator of the fact that it has not been applied as a rigid norm.

The benchmarking criterion plainly ignores that in terms of the MoD Policy Letter dated 15 January 1991 a cut-off of 60 per cent was prescribed and a cap of 250 officers who would be granted PC annually was laid down. Competitive merit was required to be assessed only where the number of eligible officers exceeds the ceiling of 250.

Hence,

“There can be no manner of doubt whatsoever that the attempt to apply the benchmark of the lowest selected male officer is a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs.”

Reliance on Annual Confidential Reports

“A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts. Their ACR evaluations made no difference to their careers, until PC was granted to them by a court mandate in Babita Puniya (supra).”

The evaluation process which has been followed in the case of the WSSCOs has clearly ignored that the writing of their ACRs was fundamentally influenced by the circumstance that at the relevant time an option of PC was not available for women. Even as late as October 2020, the authorities have emphasized the need to duly fill in a recommendation on whether or not WSSCOs should be granted PC.

Further, there has been a flawed attempt to peg the achievements of the WSSCOs at the 5th/10th years of service thereby ignoring the mandate that the last ACR ought to be considered and the quantitative performance for the entire record of service must be assessed. Considering the ACRs as on the 5th or 10th year of service for grant of PC would have been appropriate, if the WSCCOs were being considered for PC at that point of time. However, the delayed implementation of the grant of PC to WSSCOs by the Army and considering of ACRs only till the 5th/10th year of service has led to a situation where, in effect, the Army has obliviated the years of service, hard work and honours received by WSSCOs beyond their 5th/10th year of service and relegated them back to a position they held, in some cases, more than 10 years ago.

“The lack of consideration given to the recent performance of WSSCOs for grant of PC is a disservice not just to these officers who have served the nation, but also to the Indian Army, which on one hand salutes these officers by awarding them honours and decorations, and on the other hand, fails to assess the true value of these honours when it matters the most – at the time of standing for the cause of the WSSCOs to realise their rights under the Constitution and be treated on an equal footing as male officers who are granted PC.”

Hence, in light of the systemic discrimination that women have faced in the Army over a period of time, to call for the adoption of a pattern of evaluation that accounts and compensates for this harsh reality is not to ask for ‘special and unjustified treatment’. Rather, it is the only pathway for the attainment of substantive equality. To adopt a symmetrical concept of equality, is to empty the antidiscrimination guarantee under Article 15, of all meaning.

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.”

Medical Criteria

While the medical criterion was not held arbitrary per se, the Court took note of the fact, that these 615 WSSCOs are being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts. Had they been considered for the grant of PC then, as the respondents were directed to do by the decision of the Delhi High Court, they would have met the norms of eligibility in terms of medical parameters. Their male counterparts who were considered for and granted PC at that time are not required to maintain SHAPE 1 fitness to be continued in service.

The Army authorities have stated that the medical criterion has been sufficiently adjusted to take into account age related factors. However, the Army authorities are insistent to apply the medical criteria as of today, while simultaneously attempting to freeze the ACRs of the WSSCOs at the 5th or 10th year of service. Indirect discrimination coupled with an exclusionary approach inheres in this application.

“The timing of the administration of rigorous standards is a relevant consideration for determining their discriminatory impact, and not just an isolated reading of the standards which account for differences arising out of gender.”

The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service.

“A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service.”

Directions 

(i) The administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is held to be arbitrary and irrational and shall not be enforced while implementing the decision in Secretary, Ministry of Defence v. Babita Puniya,(2020) 7 SCC 469

(ii) All women officers who have fulfilled the cut-off grade of 60 per cent in the Special No 5 Selection Board held in September 2020 shall be entitled to the grant of PC, subject to their meeting the medical criteria prescribed by the General Instructions dated 1 August 2020 and receiving disciplinary and vigilance clearance;

(iii) For the purpose of determining the fulfillment of the medical criteria shall be applied at the following points of time:

(a) At the time of the 5th year of service; or

(b) At the time of the 10th year of service, as the case maybe.

In case the officer has failed to meet the medical criterion for the grant of PC at any of these points in time, the WSSCO will not be entitled to the grant of PC. Further, a WSSCO who was in the TLMC in the 5th/10th year of service and subsequently met the SHAPE-1 criterion after the one year period of stabilization, would also be eligible for grant of PC. Other than officers who are “non-optees”, the cases of all WSSCOs, including the petitioners who have been rejected on medical grounds, shall be reconsidered within a period of one month and orders for the grant of PC shall in terms of the above directions be issued within a period of two months;

(iv) The grant of PC to the WSSCOs who have already been granted PC shall not be disturbed;

(v) The WSSCOs belonging to WSES(O) – 27 to 31 and SSCW(T&NT) 1 to 3 who are not considered to be eligible for grant of PC after the above exercise, will be extended the one-time benefit of direction (c) and (d) in Babita Puniya (supra);

(vi) All consequential benefits including the grant of time scale promotions shall necessarily follow as a result of the directions contained in the judgment in Babita Puniya (supra) and the present judgment and steps to do so shall be completed within a period of three months from the date of the judgment;

(vii) The candidature of Lt. Col. Navneet Lobana, Petitioner No. 3 in Writ Petition (C) 1109 of 2020, will be reconsidered for grant of PC in terms of the above directions. In case the officer is not granted PC, she will be allowed to complete her M.Tech degree course for which she has been enrolled at the College of Military Engineering, Pune and shall not be required to pay or reimburse any amount towards the course;

(viii) In accordance with pre-existing policies of the respondents, the method of evaluation of ACRs and the cut-off must be reviewed for future batches, in order to examine for a disproportionate impact on WSSCOs who became eligible for the grant of PC in the subsequent years of their service; and (ix) During the pendency of the proceedings, the ASG had assured the Court that all the serving WSSCOs would be continued in service, since the Court was in seisin of the proceedings. There shall be a direction that this position shall continue until the above directions of the Court are implemented and hence the serving WSSCOs shall be entitled to the payment of their salaries and to all other service benefits.

While concluding the analysis, the Court

“We must not forget that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. (…) The WSSCOs before us are not just women who have dedicated their lives to the service of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly “neutral parameters”.”

[Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261, decided on 25.03.2021]


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

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Case BriefsForeign Courts

US Supreme Court: In a crucial verdict for the LGBT Community, the US Supreme Court has, in a 6-3 verdict, held that

“An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.”

Title VII of the Civil Rights Act, 1964 makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

The batch of cases before the Court, the employers had allegedly fired a long-time employee simply for being homosexual or transgender.

Opinion of the Court

Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. He wrote,

“When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.”

In the case at hand, the employers did not dispute that they fired their employees for being homosexual or transgender. Rather, they contended that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. They argued that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically.

On this the Court said,

“But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule.”

Stating that the limits of the drafters’ imagination supply no reason to ignore the law’s demand, the Court said, Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them.

“Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries— virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.”

Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. The Court, hence, recognised a necessary consequence of that legislative choice:

“An employer who fires an individual merely for being gay or transgender defies the law.”

Dissenting Opinion

Alito, J., filed a dissenting opinion, in which Thomas, J., joined. Kavanaugh, J., filed a dissenting opinion.

Alito, J, in his opinion, wrote:

“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” Neither “sexual orientation” nor “gender identity” appears on that list.

“Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties.”

[BOSTOCK v. CLAYTON COUNTY, GEORGIA, 2020 SCC OnLine US SC 2 , Decided on 15.06.2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of M.G. Sewlikar and T.V. Nalawade, JJ., while allowing the present petition with respect to the issue of right to agitation, held that,

“Our ancestors fought for freedom and also for the human rights and due to the philosophy behind the agitations, we created our constitution. It is unfortunate but, people are required to agitate against their own Government now but only on that ground the agitation cannot be suppressed.”

The present petition was filed against the order of the Police Inspector, Beed passed under Section 149 CrPC, the order passed by the Additional District Magistrate, Beed along with said the petitioners also sought for direction to respondents to see that petitioner companions were allowed to hold peaceful demonstrations and agitations at Old Idgah Maidan at Majalgaon for indefinite period between 6 pm to 10 pm.

Issue for consideration in the present petition is that:

Whether the aforesaid order issued under Section 37(1)(3) of the Maharashtra Police Act, 1951 could have been issued to prevent such agitation?

Analysis of High Court

Court noted that the order made by Additional District Magistrate shows that the District Superintendent of Police had informed by letter to the DM that many political parties and associations in the district had started agitations which included blockade of roads, taking out morchas, etc., for many causes including protest against the Citizenship Amendment Act (CAA).

Apprehension was that due to such agitations there was a possibility of some untoward incident and there was a possibility of creation of law and order problem. In the aforesaid order, DM prevent many activities which included carrying of arms, prevented sloganeering, singing, beating of drums, etc.

On taking the above into consideration, the Court said that there was no fairness in the above order.

Court added to its opinion that,

When such an act is made, some people may be of a particular religion like Muslims ay feel that it is against their interest and such an act needs to be opposed. It is a matter of their perception and belief and the Court cannot go into the merits of the same.

Courts are bound to see whether these persons have the right to agitate, oppose the law. If Court finds that it is part of their fundamental right, it is not open to the Court to ascertain whether the exercise of such right will create law and order problem.

Further the Court cannot go with the presumption that only a particular community or religion has interest opposing such law. As in the case of the present order that has been mentioned in the petition, it is clearly specified that persons of all religions have started the agitation.

We need to remember the constitutional and legal history when we consider the provisions of the constitution. We need to keep in mind the freedom struggle and the causes which were taken up by the freedom fighters.

Explaining and clarifying the right to agitate, Court also stated that,

India got freedom due to agitations which were non-violent and this path of non-violence is followed by the people of this country till date.

Referring to the present petition, Bench stated that petitioners and companions want to agitate peacefully to show their protest.

Our ancestors fought for freedom and also for human rights and due to the philosophy behind the agitations, we created our constitution.

Decision

Court is expected to consider the right of persons to start agitation in a peaceful way.

Court expresses that such persons cannot be called as traitors, anti-nationals only because they want to oppose one law.

Stressing on the rights of people, Court pointed out that,

If the persons agitating believe that it is against the ‘equality’ provided under Article 14, they have the right to express their feelings as provided under Article 19 of the Constitution of India.

Fraternity

Circumstance that the persons of other communities, religions are supporting the minority community shows that we have achieved fraternity to a great extent.

“…it is the dissent of people against the act made by the Government and the bureaucracy needs to be sensitive when it exercises powers given by law.”

Thus, the people from bureaucracy need to be sensitized by giving them proper training on human rights which are incorporated as fundamental rights in the constitution.

Hence, High Court held that the order of Additional District Magistrate is illegal and needs to be quashed and set aside and consequently the order made by the police station concerned is illegal and is to be set aside. [Iftekhar Zakee Shaikh v. State of Maharashtra, 2020 SCC OnLine Bom 244, decided on 13-02-2020]

Conference/Seminars/LecturesLaw School News

New Law College, Bharti Vidyapeeth University, Pune is organising 10 days’ Lecture Series on “Gender, Law and Equality: Emerging Issues” from 1st August to 11th of August, 2018. The concept of gender justice and it’s emerging dimensions are gaining in the global world. The lecture series will focus on understanding the laws, it’s procedural intricacies and judicial decisions aimed at gender justice.
The participants after completing the lecture series will be able to:
(a) Understand gender, gender concepts, and definitions relating to it.
(b) To reflect on gender and gender differences and their implications in society.
(c) To become familiar with the national and international legal framework for gender equality.
Registration Date: 24th-28th  July, 2018
Registration fees : Rs 500 to be paid in cash (College Office)
Registration for non-NLC students: The students can  download the registration form from  www.bvpnlcpune.org. The scanned copy of   the   registration   form   signed   by   the principal, bearing college seal should be sent on   newlawcollege@yahoo.co.in  on  or  before  28th July 2018. The registration fee Rs. 500 can be paid in cash by the students on the first day of program for which receipt will be given them.

Note:

  • Certificate will be given to the participants.
  • No conveyance will be given to the students.
  • The registration is restricted to 2 entries from each college.
The lecture series will be conducted with inputs from expertise including judges, lawyers, academicians and persons having field experience.
For further information, click HERE.
For Registration Form, click HERE.
Case BriefsHigh Courts

High Court of Jammu and Kashmir: A Division Bench comprising of Ramalingam Sudhakar, J. and M.K. Hanjura, J. recently addressed a petition which challenged an order dated 9.12.2016 wherein, the appellants (petitioners) had been directed to accord the benefit of notional seniority to the respondents with effect from the time when the other candidates who had been granted with seniority along with directing the appellants to fix the pay and the benefits of the respondents accordingly.

The facts of the case are that an advertisement notice had been issued by the Jammu and Kashmir Service Selection Recruitment Board for the post of teachers in the district of Jammu following which the respondents had submitted their application forms. The respondents were either graduates or post graduates and all of them possessed B.Ed degrees. The appellants had prescribed 50% weightage to the candidates’ 12th standard exam. Despite the respondents being comparatively more meritorious in that aspect, they had not been selected for the posts in question.

Aggrieved by the lower court’s decision upholding the appellants’ decision of not awarding the posts to the respondents, the latter had filed a Letters Patent Appeal wherein the criterion for the selection process was held to be unreasonable. This was followed by the J&K Service Selection Board reframing the criteria which was followed by the Board reevaluating the merit of all those who had filed the case in the first place and the respondents being appointed by the department. The respondents subsequently requested the court to issue a writ of mandamus to the petitioners commanding them to give effect to the respondents’ appointments from the year when the other selectees were appointed and that all such people be given benefits of the post from that very year itself.

A Single Judge Bench responded to the writ petition by disposing it off with directions to accord the respondents with notional seniority from the initial year of selection of the appointees resulting from the advertisement along with the benefits accruing out of the positions. The Division Bench upheld the decision of the Single Judge which only responded to a single individual’s writ petition for her recruitment in the disputed position. The Division Bench held that this decision needed to be upheld for others aggrieved by the initial decision of the Board which denied them their rightful position. The Court held that the law is that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme of public employment, when the appointment is in terms of the relevant rules and after a proper competition among qualified persons, there can be no discrimination between the appointees on the same set of facts. [State v. Sushma Sharma,  2017 SCC OnLine J&K 732, order dated 7.12.2017]

Case BriefsSupreme Court

Supreme Court: In a PIL seeking guidelines to be set down to curb acts of discrimination against persons from the north-eastern states, the 3-judge bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswararao, JJ said that in order to enhance a sense of security and inclusion, the Union Government in the Ministry of Home Affairs should take proactive steps to monitor the redressal of issues pertaining to racial discrimination faced by citizens of the nation drawn from the north-east.

The Court said that a regular exercise of monitoring and redressal should be carried out by a Committee consisting of a Joint Secretary (North-east), Ministry of Home Affairs and 2 other members to be nominated by the Union Government (one of whom should be a public figure). It was further said that the work of the Committee should be widely publicised in the electronic and print media, including in the north eastern states. The Committee should be accessible to grievances, suggestions and complaints. The Committee should meet periodically and preferably at monthly intervals to monitor the redressal of all such grievances including the implementation of the recommendations of the Bezbaruah Committee, to the extent to which they have been accepted by the Union Government.

The Committee shall carry out the following functions:

  • to monitor, oversee, pursue and review the implementation of the MP Bezbaruah Committee Report
  • to monitor the initiatives taken by the Government to curb and deal with the incidents of racial discrimination/racial atrocities/racial violence;
  • to monitor action in respect of incidents of racial discrimination/racial atrocities/racial violence, suggest measures and ensure strict action;
  • to receive, consider and entertain complaints from individuals and groups of individuals who claim to be victims of racial abuse/racial atrocities/racial violence/racial discrimination and forward the same to the National Human Rights Commission and/or the State Human Rights Commissions and/or to the jurisdictional Police Station as the case may be for enquiry and necessary action;
  • to issue necessary directions including calling for reports on incidents of racial discrimination/racial atrocities/racial violence from the State Governments/Union Territories.

Various instances of murder, molestation racial discrimination and other offences against the people of North-eastern states have been reported. [Karma Dorjee v. Union of India, 2016 SCC OnLine SC 1469, decided on 14.12.2016]

 

Case BriefsSupreme Court

Supreme Court: Giving the Haji Ali Dargah Trust two weeks’ time to restore status-quo ante in regard to women pilgrims entering the sanctum sanctorum at par with men, the Court said that in case there is any default or neglect on the part of the Trust in complying with the direction of the Bombay High Court, the respondents-writ petitioners shall be free to approach the High Court for appropriate redress in the matter.

Gopal Subramanium, appearing for the Trust, had submitted that the Trust has not only decided to restore the status-quo ante and permit women to enter the sanctum sanctorum at par with men but passed a specific resolution to that effect on 11th October, 2016. It was also submitted that the Trust has also decided to relay the flooring on both sides of the sanctum sanctorum inside the Dargah meant for men and women pilgrims. The 3-Judge Bench of T. S. Thakur, C.J.  and D. Y. Chandrachud and L. Nageswara Rao, JJ, agreed to the submissions and hence, held that the Trust will be free to relay the flooring and complete the entire process within a period of four months.

The Bombay High Court, had earlier on 26.08.2016, held that the ban imposed by the Trust preventing the entry of women devotees in the sanctum sanctorum of the Haji Ali Dargah was violative of Articles 14, 15 and 25 of the Constitution. It was held that under the guise of providing security and ensuring safety of women from sexual harassment, the Trust cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. The Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security e.g. by having separate queues for men and women. [Haji Ali Dargah Trust v. Dr. Noorjehan Safia Niaz, 2016 SCC OnLine SC 1199, decided on 24.10.2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the employees of Prasar Bharati, who are ‘persons with disability’ (PWD), had alleged that they have been deprived of the statutory right under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 with respect to the Group A and B posts out of the four A to D Groups of Prasar Bharati, the Court directed the Government to extend three percent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts.

It was contended by the respondents that as per the Regulations framed under the Prasar Bharati (Broadcasting Corporation of India) Act, 1990, 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.

The bench of J. Chelameswar and Abhay Manohar Sapre, JJ rejected the said contention and held that once a post is identified under Section 32 of the 1995 Act, 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 of the 1995 Act 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. The Court, hence, held the impugned memoranda to be illegal and inconsistent with the 1995 Act. [Rajeev Kumar Gupta v. Union of India, 2016 SCC OnLine SC 651, decided on 30.06.2016]