Persons with disabilities are entitled to promotion reservations in identified posts, necessitating supernumerary posts creation if regular vacancies are unavailable.

JUDGMENT

Dated this the 6th day of February, 2020 K.VINOD CHANDRAN, J.

Writ appeals are from different judgments of the same Single Judge; on an identical issue. The respondents are persons with disabilities, specifically locomotor disabilities. WA No.1335 of 2018 is concerned with the respondent, who is an employee of the Kerala State Electricity Board [KSEB] claiming promotion to the post of Assistant Engineer (Electrical). W.A.No.1605 of 2018 again concerned with the respondent who has locomotor disability who claims promotion either to the post of Assistant Engineer (Electrical) or Assistant Engineer (Civil) having acquired the essential qualification for both. W.A.No.1563 of 2018 is with respect to the claim of respondents 4 and 5 for the post of Assistant Engineer (Civil). Respondents 6 and 10 have already got the relief of promotion to the post of Senior Superintendent. The 7th respondent does not have a valid claim since she seeks promotion to the post of Fair Copy Assistant which is not an identified post, for the disabled. Respondents 8 and 9 are said to be due for promotion on the basis of disability, immediately. Hence what remains to be dealt with is only the case of respondents 4 and 5 in that Writ appeal.

2. The issue is common and the respondents are claiming promotion on the basis of their locomotor disability. The fact of disability is admitted and the Assistants Engineer (Electrical) and (Civil) posts being identified for filling up with persons with disability (PWD) is also admitted.

3. The question as to whether there could be reservation in promotion as had been interdicted inIndira Sawhney v. Union of India [(1992) Supp.3 SCC 217] was distinguished insofar as the persons with disabilities in Rajeev Kumar Gupta and others v. Union of India [(2016) 13 SCC 153]. Later, another Division Bench of the Honourable Supreme Court had doubtedRajeev Kumar Gupta which now has been affirmed by a larger Bench in Siddaraju v. State of Karnatka and others (SLP.No.24994 of 2016 dated 3.02.2017) [2020 (1) KHC 609]

4. As of now, there can be no dispute raised as to the persons with disability being entitled to reservation for promotion to the posts identified for them.

5. The further contention by the KSEB is that though the Assistant Engineers post is identified, there are already 22 persons with disabilities continuing there. However, as rightly noticed by the learned Single Judge, none of them were promoted in the 3% quota. They were promoted to that post as per their rightful due similar to the other employees. The promotion having not been by reason of a reservation granted under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 necessarily the 3% vacancy in the cadre has to be satisfied. As of now, we find only 4 of the respondents claim such promotion.

In such circumstances, KSEB is obliged to grant them promotion, if there are no seniors in the same category who are also entitled to claim promotion to the reserved vacancies by reason of their disability; which shall be done with immediate effect. Learned Standing Counsel contends before us that there are no vacancies, as of now. If there are no vacancies, necessarily, supernumerary posts have to be created and the four respondents promoted therein, which supernumerary post will be adjusted against the regular arising vacancies thereafter. Writ appeals would stand rejected with the above direction.