IMPORTANT POINT
The main legal principle established is that reservation in promotion for differently-abled persons should be in accordance with instructions issued by the appropriate Government, and merit-based consideration shall be primordial over all other aspects in the grant of further promotion.

JUDGMENT :

S.M. Subramaniam, J.

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the entire records connected with Official Memorandum dated 25.04.2022 issued by the 2nd respondent quash the same consequently directing the respondents to provide reservation in promotion for the Petitioner as he is coming under the category of physically challenged person for the post of District Judge called for by the 2nd respondent in ROC No.2709-B/2018/RG/B1/Spl.Cell and ROC. No.3799-A/2019/RG/B1/Spl.Cell dated 17.08.2021 in the light of the Judgment of the Hon'ble Supreme Court in “The State of Kerala and Other Vs. Leesamma Joseph reported in (2021) 9 SCC 208”.)

1. The writ petition has been instituted challenging the order of rejection dated 25.04.2022, rejecting the claim of the writ petitioner for grant of promotion to the post of District Judge by providing reservation for differently-abled persons in view of Section 34 of the Rights of Persons with Disabilities Act, 2016.

2. The petitioner is a differently-abled person having 80% Congenital Disability in both hands. He was appointed as Civil Judge (Junior Division) in the Tamil Nadu State Judicial Service by G.O.4D.No.7, Home (Courts.1) Department dated 12.02.2009. The petitioner was promoted to the post of Sub-Judge and serving as such at Periyakulam, Theni District. The next avenue for promotion is to the post of District Judge (Entry Level).

3. Mr.K.Thilageswaran, learned counsel for the petitioner would mainly contended that 4% reservations provided for disabled persons are to be extended even to the promotional posts. Therefore, by earmarking 4% post of District Judges (Entry Level), the petitioner should be promoted as District Judge. In support of the contention the learned counsel for the petitioner would submit that the Hon'ble Supreme Court of India in the case of The State of Kerala and Others Vs. Leesamma Joseph reported in CDJ 2021 SC 428, held as follows:

“14. The legislative mandate has to be understood in the aforesaid 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.

15. 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.

20. ..... Thus, a person with disability would be considered for promotion along with other persons working in the feeder cadre. We have no doubt that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD. There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. 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 and in our view, this is the basis of the mandate of this Court in Rajeev Kumar Gupta's and Siddaraju's cases (Supra).”

4. It is contended that in view of Section 34 of the Rights of Persons with Disabilities Act, 2016, the benefit is to be extended to the petitioner by promoting him to the post of District Judge (Entry Level).

5. Mr.M.Fakkir Mohideen, learned counsel appearing on behalf of the 2 nd respondent would oppose the contentions of the petitioner by stating that th