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SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, R. SUBHASH REDDY, JJ.
The State of Kerala and Others – Appellants
Versus
Leesamma Joseph – Respondent
Civil Appeal No. 59 of 2021
Decided On : 28-06-2021
(A) Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995[ Now, Rights of Persons with Disabilities Act, 2016 – Section 20 read with Section 2(y)] – Sections 32 and 33 read with Section 47 – Reservation in promotion – Legislative mandate provides for equal opportunity for career progression, including promotion – It would be negation of legislative mandate if promotion is denied to persons with disabilities (PwD) and such reservation is confined to initial stage of induction in service – This would in fact result in stagnation of disabled in a consequential frustration – Operation of reservation and computation has to be made with reference to total number of vacancies in cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion – Total number of vacancies in cadre strength would include vacancies to be filled in by nomination as well as by promotion. (Paras 14 and 15)
(B) Rights of Persons with Disabilities Act, 2016 – Section 20 read with Section 2(y) [Erstwhile, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 – Sections 32 and 33 read with Section 47] – Reservation in promotion – Respondent was appointed in 1996 to post of Typist/clerk in Police Department on compassionate grounds – She suffered from Post Polio Residual Paralysis (L) Lower Limb and her permanent disability had been assessed at 55% – Respondent subsequently cleared all departmental tests for promotion – It was never intention of legislature that provisions of Section 32 would be used as a tool to frustrate benefits of reservation under Section 33 – Identification of posts for purposes of reservation had to take place immediately after 1995 Act – What is required is identification of posts in every establishment until exempted under proviso to Section 33 – Identification of posts was a prerequisite to appointment, but appointment cannot be frustrated by refusing to comply with prerequisite – Even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD – There cannot be methodology used to defeat reservation in promotion – Once that post is identified, logical conclusion would be that it would be reserved for PwD who have been promoted – Absence of rules to provide for reservation in promotion would not defeat rights of PwD to a reservation in promotion as it flows from legislation – Respondent has been capable of discharging functions of promotional post and could not be denied benefit of reservation even if Rules do not provide for any reservation in promotion – Once respondent has been appointed, she is to be identically placed as others in PwD cadre – 1995 Act does not make distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered service – Same position would be with person who may have entered service on a claim of a compassionate appointment – Mode of entry in service cannot be a ground to make out a case of discriminatory promotion – Course of action followed by High Court in impugned order is salutary and does not call for any interference – Appeal dismissed. (Paras 19, 20, 26, 27, 29 and 31)
Facts of the case:
Issue debated in the present proceedings is right of promotion under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, as claimed by the respondent, in which she succeeded before the High Court of Kerala in terms of the impugned order dated 9th March, 2020. The respondent did not succeed in a claim before the Kerala Administrative Tribunal which dismissed her application by order dated 27th February, 2015 but said judgment was set aside by the impugned order.
Findings of Court:
Post of UDC/Cashier would be amenable to reservation for PwD. Respondent has been capable of discharging functions of promotional post and could not be denied the benefit of reservation (even if Rules do not provide for any reservation in promotion). Section 32 of the 1995 Act is to facilitate but not to impede legislative mandate.
Result : Appeal dismissed.
JUDGMENT :
SANJAY KISHAN KAUL, J.
1. The international awakening to further the rights and equal opportunities to persons with special abilities (hereinafter referred to as ‘PWD’) propelled the adoption of the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region in the meeting of the member states of the Economic and Social Commission for Asia and the Pacific held in Beijing in December, 1992; to which India was a signatory. In furtherance of its international commitments, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “the 1995 Act”) was enacted which came into force on 7th February, 1996. In 2007, India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). In pursuance to the debates in the Standing Committee of the Parliament, The Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as “the 2016 Act”) replaced the 1995 Act.
2. The issue debated before us in the present proceedings is the right of promotion under the 1995 Act, as claimed by the respondent, in which she succeeded before the High Court of Kerala in terms of the impugned order dated 9th March, 2020. The respondent did not succeed in a claim before the Kerala Administrative Tribunal which dismissed her application by order dated 27th February, 2015 but the said judgment was set aside by the impugned order.
3. On 7th January, 2021, we had noted the submission of learned counsel for the appellants that the respondent was given employment on compassionate ground and thus the entry point was not of a person with disability under the 1995 Act. In view thereof, a submission was made that such a person cannot claim reservation in matters of promotion as it will affect the other general candidates. We were of the view that the issue required examination, but since the respondent had retired and it was only the issue of her financial benefits, we declined to interfere with the relief granted by the High Court vide the impugned order. Thus, no notice was required to be issued to the respondent. Leave was granted to examine the legal issue and we appointed Mr. Gaurav Agrawal as Amicus Curiae to assist the Court, since the respondent would be unrepresented before us.
4. The facts relating to the respondent are not really necessary to be recorded in detail, except to note that she was appointed in 1996 to the post of Typist/clerk in the Police Department on compassionate grounds, after her brother had passed away during service. She undisputedly suffered from Post Polio Residual Paralysis (L) Lower Limb and her permanent disability had been assessed at 55%. The respondent subsequently cleared all departmental tests for promotion, and was test qualified in December, 1998. She was given a category change to Lower Division clerk in July, 2001 without losing her seniority and later on promoted as Senior Clerk (equivalent to Upper Division Clerk) on 16th September, 2004, based on the seniority list of test qualified LDCs. She was thereafter promoted to the post of a Cashier on 5th May, 2015. The issue which had been raised by the respondent was that she was entitled to promotion as a Senior Clerk with effect from 1st July, 2002 with all consequential benefits and as a Cashier with effect from 20th May, 2012 with all consequential benefits and thereafter as Junior Superintendent with effect from the date of her entitlement. This plea was predicated on reservation in matters of promotion which she sought under the 1995 Act as she suffered from physical disability.
VIEW OF THE TRIBUNAL
5. The aspect of employment under the 1995 Act has been dealt with in Chapter VI. Section 32 mandates identification of posts which can be reserved for persons with disabilities (PWD) while Section 33 provides for reservation of posts. The provisions read as under:
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