The State of Kerala & Ors. vs Leesamma Joseph

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995: Whether the Respondent can be promoted by giving benefit of reservation as she is a PwD, despite the fact that she was not appointed in the PwD quota – 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.

Dismissing the appeal, the Court

Held: 1. Whether the 1995 Act mandates reservations in promotions for persons with disabilities?

1.1 Section 32, 33 and 47 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. [Para 14][589-B-C]

1.2 The operation of reservation and the computation has to be made with reference to the total number of vacancies in the cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion. Reservation has to be computed with reference to total number of vacancies in the cadre strength and no distinction can be made between the posts to be filled by direct recruitment and by promotion. Thus, total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination as well as by promotion. [Paras 15, 17][589-C-D; 589-F-G]

1.3 The two preliminaries for operationalising the said provision, i.e. there has to be rules providing for promotion from the feeder cadre to the provisional post as there cannot be promotions even for the PwD de hors the rules as a singular benefit. The requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre. [Para 17][590-C-D]

2. Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?

There can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. In fact, identification of posts for purposes of reservation had to take place immediately after the 1995 Act. A resistance to such reservation is obvious from the delaying tactics adopted by most of the government authorities in truly implementing the intent. It thus shows that sometimes it is easier to bring a legislation into force but far more difficult to change the social mind set which would endeavour to find ways and means to defeat the intent of the Act enacted and Section 32 was a classic example of the same. What is required is identification of posts in every establishment until exempted under proviso to Section 33. 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. [Para 19][590-E-H; 591A-B] Government of India & Anr. v. Ravi Prakash Gupta & Anr. (2010) 7 SCC 626 : [2010] 7 SCR 851; Union of India v. National Confederation for Development of Disabled & Anr. (2015) 13 SCC 643 – relied on.

3. Whether in absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD?

3.1 No doubt, the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD. There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. 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. [Para 20][591-D-F]

Rajeev Kumar Gupta and Others v. Union of India and Ors. (2016) 13 SCC 153 : [2016] 3 SCR 407 – relied on.

3.2 The only caveat to the aforesaid would be if the Government is of the view that the posts in the promotional cadre cannot be reserved for PwD category due to functional or other reasons and that should not be a ruse to defeat the reservation in promotion. Such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability more often than not, the disability comes in the way of meeting the requirements for promotion. In such a situation, the government should explore methods to address the issue of stagnation of PwD. [Para 21][591-G-H; 592-A]

Vikash Kumar v. Union Public Service Commission 2021

(2) SCALE 468 – relied on.

3.3 A reading of Section 20 with Section 2(y) shows that non-discrimination in employment is a mandate of the legislature. In the context of sub-section (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. There is no reason why a clue cannot be taken from such a line of interpretation and reasoning to carry out the intent of the Legislation. Even under the 1995 Act, the rights of PwD, and how they would attain an equal opportunity has been an ongoing exercise blocked by a greater impediment of a social mind set change and the 2016 Act is the result thereof. [Paras 24, 25][593C-E]

4. Whether the Respondent can be promoted by giving benefit of reservation as she is a PwD, despite the fact that she was not appointed in the PwD quota?

4.1 The direction in the impugned order was for the respondent to be considered for the promotion based on 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. The Ministry of Social Justice and Empowerment in the Department of Empowerment of Persons with Disabilities (Divyang), Government of India has undertaken a very comprehensive exercise of identifying posts which can be reserved for PwD and the list of such posts are available on the website. From that it appears that the post of UDC/Cashier would be amenable to reservation for PwD and thus there can be little doubt that the respondent has been capable of discharging functions of the promotional post and thus could not be denied the benefit of reservation (even if Rules do not provide for any reservation in promotion) as Section 32 of the 1995 Act is to facilitate but not to impede the legislative mandate. [Para 26][593-F-H; 594-B-D]

4.2 There is no dispute about the benchmark disability of the respondent. 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. The anomaly which would arise from the submission of the appellant-State is apparent - a person who came in through normal recruitment process but suffers disability after joining service would on a pari materia position be also not entitled to be considered to a vacancy in a promotional post reserved for a PwD. This is the consequence if the entry point is treated as determinative of the entitlement to avail of the benefits. 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. [Para 27][594-D-H]

Poonam Manchanda v. Union of India (2019) SCC Online P&H 2710; Union of India v. Poonam

Manchanda Civil Appeal No. 6092/2019; Kamla

Chanyal v. State of Uttarakhand W.P. No. 126/2015 – judgment dated 29.11.2016; Uma Prasad v. Chief Executive Officer, EPFO: A case before the Chief Commissioner for Persons with Disabilities

(Divyangjan) Govt. of India – referred to.

5. The appellant-State has not implemented the judgment of this Court in Rajeev Kumar Gupta's and Siddaraju's cases. The State of Kerala is directed to implement these judgments and provide for reservation in promotion in all posts after identifying said posts. [Para 29][596-C-D]

Union of India v. National Federation of the Blind (2013) 10 SCC 772 : [2013] 9 SCR 1023; National Confederation for Development of Disabled and Anr. v. Union of India and Ors. (2015) SCC OnLine Bom 5112; Indra Sawhney and Ors. v. Union of India and Ors. Siddaraju v. State of Karnataka & Ors. 2020 3 SCALE 99 – referred to.