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Madhya Pradesh High Court · body

2017 DIGILAW 1126 (MP)

Sushil Kanojia v. Oriental Insurance Co. Ltd.

2017-11-02

S.C.SHARMA

body2017
ORDER 1. The petitioner before this Court is a Physically Handicapped Person under the employment of Oriental Insurance Co. Ltd. and he is having 50% locomotor disability. He was appointed as Office Assistant on 13.3.1997 and was promoted to the next higher post i.e. Senior Assistant which is again a Group-C post against a single reserved vacancy on 3.1.2011. 2. The petitioner’s contention is that he was entitled for promotion under the category meant for Physically Handicapped Person from much earlier date i.e. after he has completed three years as Office Assistant (Group-C) and he was entitled for promotion w.e.f. 1.1.2001. The petitioner has further stated that as per Office Memorandum dated 16/01/1998 issued by Government of India which is applicable in respect of petitioner’s organization, the policy of reservation for Schedule Cast, Schedule Tribe and Physically Handicapped Person in promotion is applicable in respect of all groups i.e. Group-A, B, C and D. The petitioner has further stated that earlier Office Memorandum was superseded and the Union of India has issued another Office Memorandum dated 29.12.2005 which also provides for 3% reservation to the post under Group-A, B, C and D category. 3. The petitioner’s grievance is that respondents are not at all implementing the Office Memorandum issued by Union of India even though the respondent No.1 is a Public Sector Undertaking. The petitioner before this Court has prayed following reliefs : “(i) Issue a writ, order or direction in the nature of CERTIORARI or other appropriate writ, calling for the records of the case from respondents. (ii) Issue a writ, order or direction in the nature of CERTIORARI or other appropriate writ, quashing the impugned notice Annexure P-8 and the impugned rejection of his complaint Annexure P-11. (iii) Issue a writ, order or direction in the nature of MANDAMUS or other appropriate writ, directing the respondents to reissue the impugned notice Annexure P-8 containing promotional vacancies after incorporating the 3% reservation for disabled persons therein. (iv) Issue a writ order or direction in the nature of MANDAMUS or other appropriate writ, directing respondent No.1 to recalculate the reserved vacancies of the previous years since 1997, and grant the petitioner notional promotion w.e.f. 2001 the year of high eligibility, with all consequential benefits. (iv) Issue a writ order or direction in the nature of MANDAMUS or other appropriate writ, directing respondent No.1 to recalculate the reserved vacancies of the previous years since 1997, and grant the petitioner notional promotion w.e.f. 2001 the year of high eligibility, with all consequential benefits. (v) Award the costs of the petition, and (vi) Grant such other relief or reliefs as it deems fit in the facts and circumstances of the petitioner’s case.” 4. A detailed and exhaustive reply has been filed on behalf of the respondents and the respondents have stated that in respect of Group-A and B posts, there is no vacancy/promotional avenue for disabled employees in the cadre and the Hon’ble Supreme Court in the case of Union of India v. National Federation of the Blind, reported in (2013)10 SCC 772 , has given a direction to the Union of India to modify its earlier Office Memorandum dated 29.12.2005 and because till date no fresh Office Memorandum has been issued, the question of grant of promotion to the petitioner does not arise under the reserved category (Physically Handicapped Category). 5. The respondents have also stated that the respondents have already given benefit of promotion to the petitioner under the reserved category (Physically Handicapped Person) to the post of Senior Assistant in the year 2011 and he cannot claim promotion to the next higher post once he has availed the benefit of promotion to a Class-III post. The respondents have prayed for dismissal of the writ petition. 6. Learned counsel for the respondent has placed reliance upon a judgment delivered by the Hon’ble Supreme Court in the case of National Federation of the Blind (supra), as well as upon a judgment delivered in the case of S.Paneer Selvam and others v. State of Tamil Nadu and others, reported in (2015)10 SCC 292 , and has prayed for dismissal of the petition. 7. Heard learned counsel for the parties at length and perused the record. 8. Undisputedly, the facts reveal that the petitioner before this Court is a physically challenged person with 50% locomotor disability. He was inducted in the services of Oriental Insurance Company Limited on 13.3.1997. He has been promoted to the next higher post on 3.1.2011, certainly under the single reserved vacancy of that year reserved for Physically Handicapped Person. 9. 8. Undisputedly, the facts reveal that the petitioner before this Court is a physically challenged person with 50% locomotor disability. He was inducted in the services of Oriental Insurance Company Limited on 13.3.1997. He has been promoted to the next higher post on 3.1.2011, certainly under the single reserved vacancy of that year reserved for Physically Handicapped Person. 9. The Union of India was signatory to the proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region and in light of the proclamation, the Parliament in its 46 years of Republic of India has enacted The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. section 2(a), 2(i), 2(j) and 2(k) of the Act of 1995 reads as under : “2(a) “appropriate Government” means, (i) in relation to the Central Government or any establishment wholly or substantially financed by that Government, or a Cantonment Board constituted under the Cantonment Act, 1924 (2 of 1924), the Central Government ; (ii) in relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government; (iii) in respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government; (iv) in respect of the State Co-ordination Committee and the State Executive Committee, the State Government; 2(i) “Disability” means- (i) blindness; (ii) low vision; (iii) leprosy-cured; (iv) hearing impairment; (v) locomotor disability; (vi) mental retardation; (vii) mental illness; 2(j) “employer” means,- (i) in relation to a Government, the authority notified by the Head of the Department in this behalf or where no such authority is notified, the Head of the Department; and (ii) in relation to an establishment, the Chief Executive Officer of that establishment ; 2(k) “establishment” means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) and includes Departments of a Government;” 10. The definition of the ‘establishment’ as defined under section 2(k) is an exhaustive definition and covers a Corporation under the Central, Provincial or State Act. The definition of the ‘establishment’ as defined under section 2(k) is an exhaustive definition and covers a Corporation under the Central, Provincial or State Act. It also includes an authority or a body owned or controlled by the Government or a local authority. It also includes a ‘Company’ as defined under section 617 of the Companies Act, 1956 and certainly all the Government departments of India, meaning thereby, by taking into account the meaning ‘establishment’ under the Act of 1995, the respondent No.1 Company is an ‘establishment’ as defined under the Act of 1995. 11. Chapter VI of the Act deals with the employment of the persons with disabilities. The relevant sections of the said chapter are as under : “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) 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 less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from- (i) blindness or low vision; (ii) hearing impairment; (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 in such notification, exempt any establishment from the provisions of this section. 36. 36. Vacancies not filled up to be carried forward - Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability : Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.” 12. The Central Government in exercise of powers conferred under section 73, sub-sections (1) and (2) has enacted Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 and the Rules were enacted in order to streamline the procedure in respect of reservation to the disabled persons and finally the Government of India has issued a notification dated 29.12.2005 which is applicable to the respondent No.1 Company providing reservation to Group- A, B, C and D posts. 13. The relevant clause of the Office Memorandum dated 29.12.2005 reads as under : “2. QUANTUM OF RESERVATION (i) Three percent of the vacancies, in case of direct recruitment to 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; (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 for each disability. 3. 3. EXEMPTION FROM RESERVATION : If any Department/Ministry considers it necessary to exempt any establishment partly or fully from the provisions of reservation for persons with disabilities of which one percent 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, it may make a reference to the Ministry of Social Justice and Employment giving full justification for the proposal. The grant of exemption shall be considered by an Inter-Departmental Committee set up by the Ministry of Social Justice and Empowerment. 4. IDENTIFICATION OF JOBS/POSTS : The Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with disabilities and the physical requirement for all such jobs/posts vide their notification No. 16-25/99.NII dated 31.5.2001. The jobs/posts given in Annexure II of the said notification as amended from time to time shall be used to give effect to 3 per cent reservation to the persons with disabilities. It may, however, be noted that : (a) The nomenclature used for any job/post shall mean and include nomenclature used for other comparable jobs/posts having identical functions. (b) The list of jobs/posts notified by the Ministry of Social Justice and Empowerment is not exhaustive. The concerned Ministries/Departments shall have the discretion to identify jobs/posts in addition to the jobs/posts already identified by the Ministry of Social Justice and Empowerment. However, no Ministry/Department/Establishment shall exclude any identified job/post from the purview of reservation at its own discretion. (c) If a job/post identified for persons with disabilities is shifted from one group or grade to another group or grade due to change in the pay-scale or otherwise, the job/post shall remain identified. 13. COMPUTATION OF RESERVATION : Reservation for persons with disabilities in case of Group C and Group D posts shall be computed on the basis of total number of vacancies occurring in all Group C or Group D posts, as the case may be, in the establishment, although the recruitment of the persons with disabilities would only be in the posts identified suitable for them. The number of vacancies to be reserved for the persons with disabilities in case of direct recruitment to Group C posts in an establishment shall be computed by taking into account the total number of vacancies arising in Group C posts for being filled by direct recruitment in a recruitment year both in the identified and non-identified posts under the establishment. The same procedure shall apply for Group D posts. Similarly, all vacancies in promotion quota shall be taken into account while computing reservation in promotion in Group C and Group D posts. Since reservation is limited to identified posts only and number of vacancies reserved is computed on the basis of total vacancies (in identified posts as well as unidentified posts), it ispossible that number of persons appointed by reservation in an identified posts may exceed 3 percent. 14. Reservation for persons with disabilities in Group A posts shall be computed on the basis of vacancies occurring in direct recruitment quota in all the identified Group A posts in the establishment. The same method of computation applies for Group B posts. 15. EFFECTING RESERVATION- MAINTENANCE OF ROSTERS : (a) all establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining/effecting reservation for the disabled one each for Group A posts filled by direct recruitment, Group B posts filled by direct recruitment, Group C posts filled by direct recruitment, Group C posts filled by promotion, Group D posts filled by direct recruitment and Group D posts filled by promotion. (b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points : 1st Block - point No. 1 to point No. 33 2nd Block - point No. 34 to point No. 66 3rd Block - point No. 67 to point No. 100 (c) Points 1, 34, and 67 of the roster shall be earmarked reserved for persons with disabilities - one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts. (d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts. (d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point No.1 is not identified for the disabled or the head of the establishment considers it desirable not to fill up by a disabled person or it is not possible to fill up that post by the disabled for any other person, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 persons with disabilities. (e) There is a possibility that none of the vacancies from 1 to 33 is suitable for any category of the disabled. In that case two vacancies from 34 to 66 shall be filled as reserved for persons with disabilities. If the vacancies from 34 to 66 are also not suitable for any category, three vacancies shall be filled as reserved from the third block containing points from 67 to 100. This means that if no vacancy can be reserved in a particular block, it shall be carried into the next block. (f) After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start. (g) If the number of vacancies in a year is such as to cover only one block or two, discretion as to which category of the disabled should be accommodated first shall vest in the head of the establishment, who shall decide on the basis of the nature of the post, the level of representation of the specific disabled category in the concerned grade/post etc. (h) A separate roster shall be maintained for Group C posts filled by promotion and procedure as explained above shall be followed for giving reservation to persons with disabilities. (h) A separate roster shall be maintained for Group C posts filled by promotion and procedure as explained above shall be followed for giving reservation to persons with disabilities. Likewise two separate rosters shall be maintained for Group D posts, one for the posts filled by direct recruitment and another for posts filled by promotion. (i) Reservation in Group A and Group B posts is determined on the basis of vacancies in the identified posts only. Separate rosters for Group A posts and Group B posts in the establishment shall be maintained. In the rosters maintained for Group A and Group B posts, all vacancies of direct recruitment arising in identified posts shall be entered and reservation shall be effected the same way as explained above. 16. INTER SE EXCHANGE AND CARRY FORWARD OF RESERVATION IN CASE OF DIRECT RECRUITMENT (a) Reservation for each of the three categories of persons with disabilities shall be made separately. But if the nature of vacancies in an establishment is such that a person of a specific category of disability cannot be employed, the vacancies may be interchanged among the three categories with the approval of the Ministry of Social Justice and Empowerment and reservation may be determined and vacancies filled accordingly. (b) If any vacancy reserved for any category of disability cannot be filled due to non-availability of a suitable person with that disability or, for any other sufficient reason, such vacancy shall not be filled and shall be carried forward as a ‘backlog reserved vacancy’ to the subsequent recruitment year. (c) In the subsequent recruitment year the backlog reserved vacancy shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that disability is not available, it may be filled by interchange among the three categories of disabilities. In case no suitable person with disability is available for filling up the post in the subsequent year also, the employer may fill up the vacancy by appointment of a person other than a person with disability. If the vacancy is filled by a person with disability of the category for which it was reserved or by a person of other category of disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. If the vacancy is filled by a person with disability of the category for which it was reserved or by a person of other category of disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But if the vacancy is filled by a person other than a person with disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation so arises, the procedure for filling up the reserved vacancy shall be the same as followed in the first subsequent recruitment year. 19. HORIZONTALITY OF RESERVATION FOR PERSONS WITH DISABILITIES : Reservation for backward classes of citizens (SCs, STs and OBCs) is called vertical reservation and the reservation for categories such as persons with disabilities and ex- servicemen is called horizontal reservation. Horizontal reservation cuts across vertical reservation (in what is called interlocking reservation) and person selected against the quota for persons with disabilities have to be placed in the appropriate category viz. SC/ST/OBC/General candidates depending upon the category to which they belong in the roster meant for reservation of SCs/STs/OBCs. To illustrate, if in a given year there are two vacancies reserved for the persons with disabilities and out of two persons with disabilities appointed, one belongs to a Scheduled Caste and the other to general category then the disabled SC candidate shall be adjusted against the SC point in the reservation roster and the general candidate against unreserved point in the relevant reservation roster. In case none of the vacancies falls on point reserved for the SCs, the disabled candidate belonging to SC shall be adjusted in future against the next available vacancy reserved for SCs. 20. Since the persons with disabilities have to be placed in the appropriate category viz. SC/ST/OBC/ General in the roster meant for reservation of SCs/STs/OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with disabilities to indicate whether they belong to SC/ST/OBC or General category.” 14. 20. Since the persons with disabilities have to be placed in the appropriate category viz. SC/ST/OBC/ General in the roster meant for reservation of SCs/STs/OBCs, the application form for the post should require the candidates applying under the quota reserved for persons with disabilities to indicate whether they belong to SC/ST/OBC or General category.” 14. The Union of India has again issued another Office Memorandum dated 26.4.2006 and the same reads as under : “Dated the 26th April, 2006 OFFICE MEMORANDUM Sub: Reservation for the Persons with Disabilities The undersigned is directed to say that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 which came into existence on 1.1.1996 provides for reservation for persons with disability in the posts identified for three categories of disabilities namely (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy. Instructions have also been issued by this Department for providing reservation for such persons. In spite of the Act and the instructions of this Department, vacancies were not earmarked reserved or were not filled by reservation in some establishments. 2. The matter has been considered carefully and it has been decided that reservation for persons with disabilities should be implemented in right earnest and there should be no deviation from the scheme of reservation, particularly after the Act came into effect. In order to achieve this objective, all the establishments should prepare the reservation roster registers as provided in this Department’s O.M. No. 36035/3/2004-Estt (Res) dated 29.12.2005 starting from the year 1996 and reservation for persons with disabilities be earmarked as per instructions contained in that OM. If some or all the vacancies so earmarked had not been filled by reservation and were filled by able bodied persons either for the reason that points of reservation had not been earmarked properly at the appropriate time or persons with disabilities did not become available, such unutilized reservation may be treated as having been carried forward to the first recruitment year occurring after issue of this O.M. and be filled as such. If it is not possible to fill up such reserved vacancies during the said recruitment year, reservation would be carried forward for further two years, whereafter it may be treated as lapsed. 3. If it is not possible to fill up such reserved vacancies during the said recruitment year, reservation would be carried forward for further two years, whereafter it may be treated as lapsed. 3. It has been observed that some recruiting agencies declare in their advertisements that blind/partially blind candidates need not apply and that separate examinations would be conducted for visually handicapped candidates. Attention is invited to para 7 of this Department’s O.M. No. 36035/3/2004-Estt (Res) dated 29.12.2005 which provides that persons with disabilities selected on their own merit will not be adjusted against the reserved share of vacancies. It means that persons with disabilities who are selected on their own merit have to be adjusted against the unreserved vacancies and reservation has to be given in addition. If visually handicapped candidates or any other category of handicapped candidates are debarred from applying on the ground that a separate examination would be conducted for them, chances of handicapped candidates being selected on their own merit would be eliminated. Thus, debarring of any category of handicapped candidates in the above manner is against the provisions contained in the aforesaid O.M. It is, therefore, requested that persons with disabilities should not be debarred from applying for the posts identified suitable for them and should be provided opportunity to compete for the unreserved vacancies as well by holding a common examination. 4. Contents of this O.M. may be brought to the notice of all concerned. Sd/- (K.G.Verma) Deputy Secretary to the Governmant of India” 15. It has also been brought to the notice of this Court that subsequently on 10.12.2008 another Office Memorandum was issued and the same was for filling up “Backlog Vacancies” of the reserved category under the Special Recruitment Drive. Thus, various Office Memorandums issued from time to time establishes that in an establishment, the employer is under an obligation to reserve 3% posts for the persons with disability, meaning thereby, in respect of Group-A, B, C and D, 3% posts are required to be reserved for persons suffering from disability, keeping in view the Act of 1995. 16. Undisputedly, in the present case in the establishment in question, there is no such reservation in respect of the Group-A and B category. The return filed by the respondents also does not establish that there is any reservation in Group-A and B category. 17. 16. Undisputedly, in the present case in the establishment in question, there is no such reservation in respect of the Group-A and B category. The return filed by the respondents also does not establish that there is any reservation in Group-A and B category. 17. Learned counsel for the respondent has placed reliance upon a judgment delivered in the case of Union of India v. National Federation of the Blind and others (supra), and his contention is that in the aforesaid case Union of India has been directed to issue fresh Office Memorandum, however, no such fresh Office Memorandum has been issued by the Union of India till date. 18. This Court has carefully gone through the judgment delivered by the Hon’ble Supreme Court in the case of Union of India v. National Federation of the Blind and others (supra), and it was a case relating to computation of vacancies and the Hon’ble Supreme Court after taking into account the posts reserved for Group-A, B, C and D category has directed the Union of India to issue a fresh Office Memorandum and that does not mean that the respondent No.1 establishment is not under an obligation to reserve the posts under Group-A and B. The Hon’ble Supreme Court in the aforesaid judgment has ordered computation of vacancies on the basis of cadre strength. 19. The apex Court in the aforesaid case in paragraphs No.51 to 55 has held as under : “51. 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 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) in consistent with the decision rendered by this Court. 52. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra), is not applicable with respect to the disabled persons. 53. 52. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra), is not applicable with respect to the disabled persons. 53. We also reiterate that the decision in R.K. Sabharwal (supra), is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST and OBC, which is vertical reservation, whereas reservation in favour of persons with disabilities is horizontal. Directions : 54. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions : (i) We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Court’s Order within three months from the date of passing of this judgment. (ii) We hereby direct the “appropriate Government” to compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons within a period of three months from today and implement the same without default. (iii) The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non- obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default. 55. Before parting with the case, we would like to place on record appreciation for Mr. S.K Rungta, learned senior counsel for rendering commendable assistance to the Court. The appeal is disposed of with the above terms.” 20. Paragraph No.51 of the aforesaid judgment makes is very clear that computation of reservation for the persons with disability has to be computed with Group A, B, C and D posts in an identical manner i.e. “computing 3% reservation on total number of vacancies in the cadre strength”. The appeal is disposed of with the above terms.” 20. Paragraph No.51 of the aforesaid judgment makes is very clear that computation of reservation for the persons with disability has to be computed with Group A, B, C and D posts in an identical manner i.e. “computing 3% reservation on total number of vacancies in the cadre strength”. The case over which reliance has been placed by learned counsel for the respondent – Insurance Company S. Paneer Selvam and others v. State of Tamil Nadu and others, reported in (2015)10 SCC 292 , was a case relating to inter se seniority of all the persons promoted on the next higher post of general vacancy and persons promoted under reserve category. 21. Issue of “Catch-up Rule” was taken into account by Hon’ble Supreme Court in the aforesaid case and issue in respect of reservation in respect of Physically Handicapped Person or the issue regarding 3% vacancy of Group A and B was not at all dealt with and therefore, the judgment is of no help to the respondent No.1. 22. The apex Court in the case of Rajeev Kumar Gupta and others v. Union of India and others passed in Writ Petition (Civil) No. 521/2008 decided on 30.6.2016 in paragraphs No.13 and 21 to 25 has held as under : “13. For some of these IDENTIFIED POSTS in Group A and Group B, the mode of recruitment is only through promotions. The purpose underlying the statutory exercise of identification under section 32 of the 1995 Act would be negated if reservation is denied to those IDENTIFIED POSTS by stipulating that either all or some of such posts are to be filled up only through the mode of promotion. It is demonstrated before us that PWD as a class are disentitled to some of the IDENTIFIED POSTS in Groups A and Group B because of the impugned memoranda and the relevant regulations, under which the only mode of appointment to those IDENTIFIED POSTS is through promotion. Once posts are identified under section 32, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. It would be a device to defraud PWD of the statutory benefit under section 33 of the 1995 Act. 21. Once posts are identified under section 32, the purpose behind such identification cannot be frustrated by prescribing a mode of recruitment which results in denial of statutory reservation. It would be a device to defraud PWD of the statutory benefit under section 33 of the 1995 Act. 21. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under 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 treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PWD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to the PWD. 22. The 1995 Act was enacted to fulfill India’s obligations under the ‘Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region’. The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress.12 The intent is to turn PWD into ‘agents of their own destiny’.13 PWD are not and cannot be equated with backward classes contemplated under Article 16(4). May be, certain factors are common to both backward classes and PWD such as social attitudes and historical neglect etc. 23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in Government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act. 24. A combined reading of sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under section 32 is crucial. 24. A combined reading of sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post. 25. In 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 of the mode of filling up of such posts. This writ petition is accordingly allowed.” 23. The apex Court in the aforesaid case has again held that the employer is under an obligation to provide reservation on identified posts of Group-A and B. 24. This Court in light of the aforesaid, is of the considered opinion that the respondents are under an obligation to reserve 3% posts of the total vacancies for the persons with disabilities with 1% each 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. 25. Resultantly, the writ petition stands allowed and the respondents are directed to reserve vacancies keeping in view the Act of 1995 and the instructions issued by Government of India, within a period of three months from the date of receipt of certified copy of this order. The respondents shall thereafter, also consider the petitioner’s case for promotion in respect of reserve vacancy, within a further period of three months thereafter. 26. With the aforesaid, writ petition stands allowed.