Supreme Court on Reservation in Promotion for Persons with Disability

 

INTRODUCTION

 

On today’s show, we will discuss the case of the State of Kerala & Others v. Leesamma Joseph, Civil Appeal No. 59 of 2021, wherein vide Judgment dated 28.06.2021, the Hon’ble Supreme Court of India decided the question whether persons having physical disability could be granted reservation in promotion.

 

In order to answer this question, let us discuss the brief facts of the case.

 

FACTS IN BRIEF

 

The Respondent was appointed with the Appellant in the year 1996 to the post of Clerk in the Police Department. She was appointed on compassionate grounds since her brother had passed away during his service tenure. Basically, the Respondent was suffering from permanent disability in the form of Post-Polio Residual Paralysis. She had cleared all the Departmental Promotional Examinations but was given promotion at a belated stage and thereafter she approached the Courts to claim her lost financial beneficial benefits on account of delayed promotion. She also sought a declaration that she was entitled for promotion from an earlier date than the date on which she was promoted.

 

However, it was contended by the Appellant before the Supreme Court that since the Respondent was given employment on compassionate ground, her entry point in the service was not of a person with disability under the relevant law and any reservation granted in such a case would mean affecting the chances of promotion of general candidates. These and the other contentions will be discussed on this show in detail.

 

But before adverting any further, a brief perusal of the important legal provisions would be apposite at this juncture.

 

IMPORTANT LEGAL PROVISIONS

 

Firstly, let us discuss Section 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (in short, “Act of 1995”).

 

S. 32 and 33 provide for identification of posts which can be reserved for persons with disabilities and consequent reservation of posts, at regular intervals. Such identification and appointment through reservation has been made the statutory responsibility of the appropriate government. So, first the posts have to be identified and then the identified posts will have to be filled with reservation.

 

And secondly, Section 47 (2) of the Act of 1995 was also referred to by the Court that provides that “no promotion shall be denied to a person merely on the ground of his disability.”

 

Now, let us move on to the observations of the Court in the instant case.

 

OBSERVATIONS OF THE COURT

 

Firstly, the Court observed that the legislative mandate of the Act of 1995 provides for “equal opportunity for career progression, including promotion. Thus, it would be negation of the legislative mandate if promotion is denied to PwD and such reservation is confined to the initial stage of induction in service. This would in fact result in stagnation of the disabled in a consequential frustration.”

 

Secondly, the Court discussed the manner of computation of reservation that is to be “done with reference to total number of vacancies in the cadre strength” and it was opined that “no distinction can be made between the posts to be filled by direct recruitment and by promotion.”

 

Thirdly, the Court observed that Section 32 and 33 have to be read harmoniously as reservation can only be done once the posts have been identified. Such identification had to take immediately after the commencement of the Act of 1995 and failure in identification of reserved posts for persons with disability cannot be taken as a shelter to contend that no reservation can be provided since the posts have not been identified. In words of the Court, “No doubt the identification of the posts was a prerequisite to appointment, but then the appointment cannot be frustrated by refusing to comply with the prerequisite.”

 

Fourthly, the Court elucidated that “the absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation.”

 

Fifthly, the Court examined the claim of the Respondent for Promotion and found out that the post on which she was last working was amenable to reservation for PwD and she was capable to work on such post. Therefore, it was the view of the Court that even in absence of any statutory rules or framework, the Respondent could not be denied the benefit of reservation as under Section 32 of the Act of 1995, identification of posts for PwD for reservation and promotion ought to have been done by the government. For the fault of the government, the Respondent cannot be made to suffer.

 

Sixthly, with respect to the issue that the Respondent was given compassionate appointment and was not initially included in the Feeder Cadre of the service, the Court observed that “it would be discriminatory and violative of the mandate of the Constitution of India if the respondent is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed, she is to be identically placed as others in the PwD cadre” and “source of recruitment ought not to make any difference but what is material is that the employee is a PwD at the time for consideration for promotion. The 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service. Similarly, the same position would be with the person who may have entered service on a claim of a compassionate appointment. The mode of entry in service cannot be a ground to make out a case of discriminatory promotion.”

 

And lastly, based on the above-stated reasoning, it was held that the Respondent is entitled for promotion and consequential benefits.

 

Those were the observations of the Court in the present case. So, what are my concluding remarks?

 

CONCLUSION

 

In this case, the Court has expansively interpreted the Act of 1995 to mean that if the statutory responsibility under Section 32 to identify posts for reservation has not been completed by the government, then the same cannot be used as a justification or a tool to deny reservation and consequent promotion to PwD candidates. Rights of persons with disabilities are often taken for granted and despite existence of laws in their favour, the societal mindset is such that not much heed is paid to the well-being of PwDs. It is high time that the state establishments become sensitized about this issue and start taking the statutory and constitutional rights of the PwDs in a serious manner.