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The Supreme Court has observed that persons with disabilities (“PwD”) can be promoted by giving benefits of reservation despite not being appointed in the PwD Quota.

“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. 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.”, Division bench of Justice SK Kaul and Justice R Subhash Reddy observed

The bench in the present matter was hearing an appeal filed by the State of Kerala against the Kerala High Court order dated March 9, 2020 (“impugned order” wherein the High Court had set aside the Kerala Administrative Tribunal Order dated February 27, 2015 the respondent’s application with regards to reservation in promotion and granted relief to the respondent.

The State of Kerala contended that in Siddaraju vs. State of Karnataka & Ors. it was opined that Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“1995 Act") mandated that 3-4 percent of the posts identified by the government were to be reserved for appointment of persons suffering from physical disabilities but this could not be interpreted to mean that such a reservation would extend even to promotions. The state further to contend that the respondent could not claim any right to reservation in promotion under the 1995 Act submitted that although the respondent suffered from physical disability, she was not appointed through a recruitment process under the 1995 Act and was appointed on compassionate grounds on the demise of her brother- a different channel of recruitment. 

On the aspect of whether 1995 Act mandates reservations in promotions for persons with disabilities, the Court while relying on Section 47 of the Act said that, 

“The legislative mandate has to be understood in the context as it 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.”

The Court further noted that, “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.”

With regards to whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32, the Court said that, “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. ”

“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”, the Court noted on the aspect as to whether absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD.

To this the Court added a caveat saying that, “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.”

The Court thereafter while disposing of the plea directed the State of Kerala to implement the Apex Court judgement of Rajeev Kumar Gupta and Others vs. Union of India and Ors. and Siddaraju vs. State of Karnataka & Ors. and provide for reservation in promotion in all posts after identifying said posts within a period of three months. 

Case Title: The State Of Kerala & Ors. V. Leesamma Joseph | Civil Appeal No. 59 OF 2021