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The mode of entry in service cannot be a ground to make out a case of discriminatory promotion: SC

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)



THE STATE OF KERALA & ORS. V. LEESAMMA JOSEPH

CIVIL APPEAL NO. 59 OF 2021

Decided on JUNE 28, 2021.


The Two-Judge bench comprising Justice Sanjay Kishan Kaul and Justice R. Subhash Reddy decided the present case. The Supreme Court dismissed the appeal stating that impugned order given by the High Court needs no interference and directed the State of Kerala to implement these judgments and provide for reservation in promotion in all posts after identifying said posts.


The respondent was appointed in 1996 to the post of clerk in the Police Department on compassionate grounds, after her brother had passed away during service. Her permanent disability was assessed at 55% due to Post Polio Residual Paralysis (L) Lower Limb. She cleared all departmental tests for promotion in 1998. After being converted to Lower Division Clerk in July, 2001, with no loss of seniority, she was later promoted as Senior Clerk on 16th September, 2004, according to the seniority list for test-qualified LDCs. On May 5, 2015, she was promoted to Cashier. In her claim, the respondent argued that she was entitled to become a Senior Clerk on 1st July, 2002 with all consequential benefits and as a Cashier on 20th May, 2012 with all consequential benefits and as a Junior Superintendent as soon as her entitlements became effective. Her grievance was based on her desire for promotion under the The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as she was physically disabled.


Under Section 32 of the 1995 Act, the Kerala Act of Recruitment, General Rules, and other orders of the Government did not provide for any reservation in promotion. Therefore, the application before the Tribunal was dismissed. The High Court of Kerala overturned the order of the Tribunal and granted relief to the respondent. Aggrieved by the decision of the High Court, the appellant filed an appeal before the Supreme Court.


Before the Supreme Court, the Appellant-State argued that Sections 32 and 33 of the 1995 Act mandated that 3-4 percent of the government-identified posts be reserved for individuals with disabilities as stated in Siddaraju vs. State of Karnataka & Ors . This cannot be interpreted to mean that such a reservation would include promotional offers as well. Furthermore, the appellant argues that the respondent did not undergo an official recruitment process pursuant to the 1995 Act; she was appointed on compassionate grounds despite her physical disability on the demise of her brother- a different channel of recruitment. Consequently, she had no right to reservation in promotions under the 1995 Act.


Mr. Gaurav Agrawal, learned Amicus Curiae argued that the case of Siddaraju vs. State of Karnataka & Ors and the issue involved therein is not concerned with the issue arising in7 the present case.


The Supreme Court after hearing both the parties framed four main issues presented before them, (a)Whether the 1995 Act mandates reservations in promotions for persons with disabilities?, (b)Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?, (c)Whether in absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD? and (d)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 Court with regard to the first issue stated that, “On examination of the aforesaid plea we find that that there is merit in what the learned Amicus Curiae contends and we are of the view that really this issue is no more res integra in view of the judgment of this Court in Government of India & Anr. vs. Ravi Prakash Gupta & Anr. 8 and Union of India vs. National Federation of the Blind (supra) opining that 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. In fact, this was the view adopted by the Bombay High Court discussed aforesaid in National Confederation for Development of Disabled and Anr. vs. Union of India and Ors. (supra) with the challenge raised to the same in a SLP being rejected in Union of India vs. National Confederation for Development of Disabled&Anr. 9 . We may note the observations in Rajeev Kumar Gupta and Others vs. Union of India and Others (supra) in paragraph 24 to the effect:"Once the post is identified, it must be reserved for PwD irrespective of the mode of recruitment adopted by the State for filling up of the said post" and a direction was issued to the Government to extend 3% reservation to PwD in all identified posts in Group A and Group B “irrespective of the mode of filling up of such posts”. Learned Amicus Curiae has rightly pointed out 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).


The Court while answering the second issue stated that, “On a plea of the learned Amicus Curiae, which we unhesitatingly accept, 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. In Government of India & Anr. vs. Ravi Prakash Gupta & Anr.(supra) also, this Court mandated the identification of posts for purposes of reservation. Thus, 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. This view was affirmed by a larger Bench of three Judges in Union of India vs. National Federation of Blind (supra).” (Para19)


The Court further stated that, “We see 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.” (para 25)


With regard to the fourth issue, the court made the following observation, “Now coming to the question of the respondent not being initially appointed in the quota for PwD in the feeder cadre, we note that 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)



Utkarsh Kumar Jayaswal

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