Person with Disability: Mode of entry in service cannot be a ground to deny promotion, Supreme Court

The SC on June 28, 2021 {THE STATE OF KERALA & ORS. vs. LEESAMMA JOSEPH} held that reservation has to be computed with reference to 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. Thus, it was held that total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination as well as by promotion. 

It was also held by the Bench, comprising of Justice Sanjay Kishan Kaul and Justice R. Subhash Reddy, that the legislative mandate has to be understood in the context as it provides for equal opportunity for career progression, including promotion. Thus, it was held that it would be negation of the legislative mandate if promotion is denied to Persons with Disabilities and such reservation is confined to the initial stage of induction in service. It was held that this would in fact result in stagnation of the disabled in a consequential frustration.

The main issue, which arose for consideration in present case before the SC was whether the respondent having been given employment on compassionate grounds and not having entered service under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (referred to as "the 1995 Act"), was entitled to claim promotion under that Act.

It was held by the SC that there can be little doubt that it was never the intention of the legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. It was held that in fact, identification of posts for purposes of reservation had to take place immediately after the 1995 Act. It was held that a resistance to such reservation is obvious from the delaying tactics adopted by most of the government authorities in truly implementing the intent. It was held that sometimes it is easier to bring a legislation into force but far more difficult to change the social mind set 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. 

Thus, it was held that a person with disability would be considered for promotion along with other persons working in the feeder cadre. It was further held 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. It was held that even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. It was held that the identification of such posts is no doubt a prerequisite for reservation in promotion for PwD. It was also held that there cannot be methodology used to defeat the reservation in promotion. It was held that once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. It was held that 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.

The SC held that only caveat to the aforesaid would be if the Government is of the view that the posts in the promotional cadre cannot be reserved for PwD category due to functional or other reasons and that should not be a ruse to defeat the reservation in promotion.

It was further held that 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service. It was held that similarly, the same position would be with the person who may have entered service on a claim of a compassionate appointment. It was held that the mode of entry in service cannot be a ground to make out a case of discriminatory promotion.