THE Supreme Court Monday affirmed a Kerala High Court judgment holding that persons with physical disabilities (PwD) are entitled to reservation in promotion.
Describing the high court judgment as salutary that required no interference, a two-judge bench of Justice Sanjay Kisan Kaul and Justice Subhash B Reddy held the absence of rules to provide for reservations in promotion would not defeat the rights of PwD to reservations in promotion as it flowed from
The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (replaced by “The Rights of Persons with Disabilities Act, 2016).
The bench directed the state government to provide reservations to PwDs in promotions within three months in compliance with the decision of the Supreme Court in Rajeev Kumar Gupta and Others vs. Union of India and Ors And Siddaraju vs. State of Karnataka & Ors. wherein it was affirmed that such reservations were applicable in promotions and the ratio of Indra Sawhney’s case was distinguished.
The state of Kerala, the appellant, against the high court order, contended that it had no rules to provide reservation in promotions to PwDs and thus a person with a disability would be considered for promotion along with other persons working in the feeder cadre.
The top court held Section 32 of the 1995 Act enjoined the government to identify posts that could be filled up with persons with disabilities. Thus, even posts in the promotional cadre had to be identified for PwD and such posts had to be reserved for PwD. The identification of such posts was a prerequisite for reservation in promotions for PwD. “There cannot be the methodology used to defeat the reservation in promotion,” the court clarified.
Referring to Section 20 of the 2016 Act which states “no government establishment shall discriminate against any person with a disability in any matter relating to employment”, the Supreme Court opined that the provision of law showed that non-discrimination in employment was a mandate of the legislature.
“In the context of subsection (2) of Section 20, where the expression used is “reasonable accommodation” as an aspect to be provided by the Government establishments, this expression has been defined in Section 2(y) to mandate necessary and appropriate modifications and adjustments to ensure that the PwD enjoy or exercise their rights equally with others”, the court said.
The court was ruling against an appeal filed by the Kerala Government against the high court directing that Leesamma Joseph be considered for promotion based on her disability at the time when the claim originally arose, but subject to her seniority with reference to other PwD candidates entitled to such reservation. She was also held entitled to the notional benefits of her promotion from the date she was so found entitled.
Joseph was appointed in 1996 to the post of typist/clerk in the Police Department on compassionate grounds after her brother had passed away during service. At the time of her appointment, she was suffering from Post Polio Residual Paralysis (L) Lower Limb, and her permanent disability had been assessed at 55%. She later cleared all the departmental tests for promotions.
In July 2001, she was given a category change to Lower Division clerk without losing her seniority and later on promoted as Senior Clerk (equivalent to Upper Division Clerk) on 16th September 2004, based on the seniority list of test-qualified LDCs. She was thereafter promoted to the post of Cashier on 5th May 2015. She raised the issue that she was entitled to promotion as a Senior Clerk with effect from 1st July 2002 with all consequential benefits and as a Cashier with effect from 20th May 2012 with all consequential benefits and thereafter as Junior Superintendent with effect from the date of her entitlement.
Affirming the high court order, the Supreme Court said the mode of entry in service could not be a ground to make out a case of discriminatory promotion.
The source of recruitment, the court held, ought not to make any difference but what was material was that the employee was a PwD at the time of 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 a 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”, the court concluded.
