Reservation in promotion for Persons with Disabilities requires identification of suitable posts; without such identification, no legal right to promotion exists.

JUDGMENT :

N. NAGARESH, J.

1. The petitioners are persons who are working as Section Officers in M.G. University. They belong to differently abled category with benchmark disability of more than 40%. The petitioners are before this Court aggrieved by rejection of their request for further promotion in the quota earmarked for differently abled candidates.

2. The petitioners state that they joined service as Lab Assistants. As per Section 34(1) of the Rights of Persons with Disabilities Act, 2016, the Government shall appoint Persons with Benchmark Disabilities in every Government Establishment, not less than 4% of the total number of vacancies in the cadre strength. The first proviso to Section 34(1) states that reservation in the promotion shall be in accordance with such inspection as issued by the appropriate Government from time to time. The petitioners would submit that the Hon’ble Apex Court has held that Persons with Disabilities are entitled to be given reservation in the matter of promotions in the light of the provisions of the Rights of Persons with Disabilities Act, 2016.

3. The petitioners pointed out that in the judgment of the Hon’ble Apex Court in State of Kerala v. Leesamma Joseph, 2021 (9) SCC 208, it was held that legislative mandate was to provide equal opportunities of career advancement to Persons with Disabilities and the same will bind Union and State Governments. Furthermore, as per Section 33(i) and (ii) of the Act, 2016, the appropriate Government shall identify posts in the Establishments which can be held by Persons with Benchmark Disabilities.

4. The petitioners state that the question of reservation in promotion to employees who are Persons with Disabilities in the service was considered by the Central Government. The Central Government has issued Office Memorandum dated 17.05.2022. Clause 2.1 of the Office Memorandum provided that in case of promotion, 4% of the total number of vacancies in the cadre strength within Group ‘C’ from Group ‘C’ to Group ‘B’ within Group ‘B’ and from Group ‘B’ to the lowest rung of Group ‘A’ shall be applicable for PwBDs. Reservation in promotion shall be applicable in the cadres in which the element of direct recruitment, if any, does not exceed 75%.

5. The Office Memorandum further provides that while filling up the vacancies by promotion by non-selection, the eligible candidates with benchmark disabilities within the normal zone of consideration shall be considered for promotion against the reserved vacancies. Clause 13.3 ordered to ensure that cases of lapse of reservation are kept to the minimum, any recruitment of the PwBD candidates shall first be counted against the vacant posts brought forward from previous years, if any, in the chronological order. If candidates are not available for all the vacancies, the older carried-forward posts shall be filled first and the current vacancies shall be carried forward, if not filled up, provided that in every recruitment, the number of vacancies reserved for PwBD, including the carried forward vacancies shall be announced beforehand, for the information of all aspirants.

6. The petitioner pointed out that as per Government Order dated 26.10.2023 of the Government of Kerala, additional guidelines have been provided for implementing reservation in promotion to Persons with Disabilities. In spite of laying down guidelines by the Government of Kerala, the University is refusing to follow the reservation in promotions.

7. The petitioner pointed out that being the Government Order, the University has taken a stand that in a category of course, both direct recruitment and promotions are available in such entry posts that can be reserved for Persons with Disabilities.

8. The University, however, rejected the requests of the petitioners holding that going by the Mahatma Gandhi University Act and going by the spirit of the judgments of the Hon’ble Apex Court, the application of the petitioners for grant of reservation under the Rights of P