28 Jun 2121

Only material factor for identifying the applicability of Person with Disability Quota on a person is that the person is with disabilities at the time of consideration - Supreme Court of India

Case : The State of Kerala & Ors. v. Leesamma Joseph Civil Appeal No. 59 of 2021

Court : Supreme Court of India

Bench : Justice Sanjay Kishan Kaul & Justice R. Subhash Reddy

Decided on : 28 Jun 2121

Relevant Statutes

Sections 32, 33 & 47 of The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995

Brief Facts & Procedural History

1. Respondent was appointed as Typist/Clerk in Police Department in the year 1996 on compassionate grounds and she suffered from Post-Polio Residual Paralysis with 55% disability. She cleared all departmental tests and was given the post of Lower Division clerk in 2001 and later promoted to Senior Clerk in 2004 and to the post of Cashier in 2015. She alleged that she was entitled to the post of Senior Clerk from 2002 with all consequential benefits and Cashier with effect from 2012 and junior Superintendent from the date of entitlement.

2. Issue was with respect to the reservation in matters of promotion under The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which was rejected by High Court of Kerala & Kerala Administrative Tribunal. Aggrieved of this, the appellant preferred an appeal before the Honorable Supreme Court.

Issues of the Case

1. Whether The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 mandates reservations in promotions for persons with disabilities?

2. Whether reservation under Section 33 of The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is dependent upon the identification of posts as stipulated by Section 32?

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

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

The Observations of the Court

1. The Honourable Supreme Court started its observations with Section 32 & 33 of The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 r/w section 47 (talks about Non-Discrimination in Government employment), which point out the intent that there should be equal opportunities to everyone, including promotion, and it would be wrong to deny such promotion to PwD or confined only up to the initial stage of induction in service.

2. As per the submissions made by Amicus Curiae, it was pointed out that reservation could be granted to PwD if,

a. The rules provided for promotion from the feeder cadre to the promotional posts

b. Posts are identified in the promotional cadre, which is capable of being filled up with persons with disabilities.

3. The Honourable Supreme Court referred to the judgment of Government of India & Anr. V. Ravi Prakash Gupta & Anr., (2010) 7 SCC 626, and UOI v. National Federation of the Blind, (2013) 10 SCC 772, in which court pointed out that reservation, has to be computed with reference to total vacancies in cadre strength and no distinction is to be made between posts filled by direct recruitment and by promotion, the same view was adopted by Bombay High Court in National Confederation for Development of Disabled and Anr. V. UOI, 2015 SCC OnLine Bom 5112, and also noted the observation in Rajeev Kumar Gupta and Others v. UOI, (2016) 13 SCC 153, in which it was observed that, after identifying the number of posts, reservation for PwD should be made irrespective of the mode of recruitment and directed the Government to extend reservation to PwD up to 3%.

4. The Honourable Supreme Court also pointed out that legislature never intended to insert Section 32 of The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 to be used as a tool to frustrate the benefits of reservation under Section 33 of The Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and referred to the judgment of Government of India & Anr. V. Ravi Prakash Gupta & Anr, (2010) 7 SCC 626, in which court made it mandatory for identification of posts for reservation and appointment cannot be frustrated by refusing to comply with the conditions required, which was re-affirmed in  UOI v. National Federation of Blind, (2013) 10 SCC 772.

5. With respect to the 3rd issue the Honourable Supreme Court noted down that mandate of section 32 is to enjoin the government to identify posts that can be filled up with the persons with disabilities and there is no doubt that identification of such post is a prerequisite condition and once the post is identified it can be logically concluded that it would be reserved for PwD who have been promoted. Thus, the absence of a rule providing for reservation in promotion would not defeat the right of PwD.

6. The Honourable Supreme Court also pointed out that if the government is of the view that post in the promotional cadre cannot be reserved for PwD category due to functional or other reasons then that would not defeat the reservation in promotion as that will totally result in frustration as others may get promoted even over the persons with disabilities.

7. In the recent judgment of Supreme Court in Vikash Kumar v. Union Public Service Commission, 2021 (2) SCALE 468, an expansive interpretation has been given to section 20 which talks about non-discrimination and employment of the 2016 Act which clearly shows that non-discrimination and employment is the mandatory condition of this legislation.

8. Moving on to the 4th issue, the Honourable Supreme Court has looked into having the posts which are identified for reserving for PwDs, according to the Ministry of Social Justice and Empowerment in the department of Empowerment of Powers with Disabilities from that it clearly appears that the post of the upper-division clerk or cashier is amenable for reservation for PwD.

9. Moving onto the issue of respondent being initially appointed in quota for PwD in the feeder cadre, Supreme Court is of the view that it would be totally discriminatory and violative of the mandate of the constitution if the respondent is not considered for promotion. And court referred to the submission of the appellant that a person who comes in through normal recruitment process but suffered disability afterwards would on a Pari Materia position also not entitled to be considered to the vacancy in the promotional post reserved for PwD but the Honourable Supreme Court pointed out that only thing which is material is that the employee is a PwD at the time for consideration for promotion and also refer to the intent of the legislature which does not mention any distinction between a person who may have entered service on account of disability and a person who may have acquired disability afterwards.

10. The Honourable Supreme Court after referring to various landmark judgments of the high courts and observed that there is no need for any interference and what appears is that the state has not implemented the judgment of the honourable Supreme Court in Rajeev Kumar Gupta & Ors. v. Union of India & Ors., (2016) 13 SCC 153, and Siddaraju v. State of Karnataka & Ors., 2020 3 SCALE 99, and therefore ordered the state of Kerala for providing reservation for promotion in all posts.

The Decision Held by the Court

1. Issued directions to the State of Kerala to implements judgments of Rajeev Kumar Gupta & Ors. v. Union of India & Ors., (2016) 13 SCC 153, and Siddaraju v. State of Karnataka & Ors., 2020 3 SCALE 99 and provide for reservation in promotion after identifying the posts.

2. Identifying and providing reservations should be done within the period of 3 months.

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