New Delhi: The Supreme Court on Monday, June 28, ruled that reservation will be applicable to persons with disability (PwD) even during promotions in employment, Bar and Bench has reported.

It also said that the mode of recruitment – whether or not if the employee concerned was recruited under the disability quota or not – is no ground to reject reservation benefits to a person as long as they are 'disabled' at the time of availing promotion. The court further noted that the absence of rules enunciating reservation benefits during promotions is no justification to deny rights granted under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.

A division bench of Justices Sanjay Kishan Kaul and R. Subhash Reddy, therefore, dismissed an appeal filed by the Kerala government against a judgment of the Kerala high court which had directed one Leesamma Joseph (respondent) be given a promotion in the PwD quota though her initial appointment was not under PwD quota but on compassionate grounds.

“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 Hindu quoted judges as saying.

Leesamma Joseph, whose permanent disability was assessed at 55%, was employed in the Police department in 1996 as a typist/clerk on compassionate grounds after her brother’s death in harness. Upon subsequent promotions and seniority, she was appointed as a cashier on May 5, 2015. However, Joseph argued that she was entitled to promotion as a senior clerk with effect from July 1, 2002 with all
consequential benefits, and as a cashier with effect from May 20, 2012 with all attendant benefits and thereafter as junior superintendent with effect from the date of her entitlement.

She first moved the Kerala Administrative Tribunal for relief upon the "injustice" being meted out to her in promotions as granted under the 1995 Act, but the Tribunal dismissed her application on February 7, 2015. When the matter reached Kerala high court, she succeeded and the court acceded to her plea on March 9, 2020, against which the Kerala government moved the apex court.

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Differing with the Kerala government's view, the apex court ruled that the 1995 Act indeed allows for reservations of PwDs even in promotions. Relying on the judgment in the Union of India vs. National Federation of the Blind (2013), the judges opined that reservation has to be computed with reference to the 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. It further said that if the 1995 Act confines only to recruitment and not promotions, then it would negate the provisions of the legislative mandate.

The second issue the court was dealing with was whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?

Hitting out at the Kerala government's reluctance to grant reservation benefits to PwD candidates in promotions, the division bench said, "It shows that sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset 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.”

The court also said that the absence of rules under the 1995 Act cannot be a reason to deny reservation benefits to PwD and referred to judgments in Rajeev Kumar Gupta vs. Union of India and Siddaraju vs. State of Karnataka. 

It further added that the source of recruitment should not make any difference as long as the employee is PwD at the time for consideration of promotion.

"It would be discriminatory and violative of the mandate of the Constitution of India if the respondent [Joseph] 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 court added.

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