Reservation for Persons with Disabilities extends to Promotions: Supreme Court [Read Judgment]

In a significant decision, the Supreme Court on Monday ruled that reservation for Persons with Disabilities (PwD) mandated by Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is applicable to promotions as well (State of Kerala vs. Leesamma Joseph)..Importantly, Court also held that a disabled person can be promoted by giving the benefit of reservation as a PwD even if she was not appointed under the PwD quota.Further, the absence of rules to provide for reservation in promotion would not defeat the rights of PwD to reservation in promotion as it flows from the Act itself, the Court ruled. .A Division Bench of Justices Sanjay Kishan Kaul and R Subhash Reddy, therefore, dismissed an appeal filed by Kerala government against a judgment of the Kerala High Court which had directed that the respondent lady be given promotion in the PwD quota though her initial appointment was not under PwD quota but on compassionate grounds. .The issue raised before the Bench was with respect to the right of promotion under the Rights of Persons with Disabilities Act, 1995..The Appellants argued that the judgement in Siddaraju vs. State of Karnataka cannot be interpreted to mean that reservations extend to promotions..It was also the State's contention that the Respondent was not appointed through the PwD quota under the Act and therefore, cannot be said to have right to reservation in promotion under the Act..The Court responded to the challenge while dealing with four major issues. .The first question the Supreme Court addressed was whether the Rights of Persons with Disabilities Act, 1995 mandates reservations for PwD in promotions.While answering the question in the affirmative, the Court relied on the judgement in Union of India vs. National Federation of the Blind wherein it was opined 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..Further, the Court observed that if reservation is confined to the initial stage of induction, it would negate the legislative mandate.“This would in fact result in stagnation of the disabled in a consequential frustration.”.The second issue before the the Court was whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?The Court held that Section 32 of the Act cannot be used to frustrate the benefits of Section 33 of the Act.In fact, the Court observed that there can be little doubt that this was never the intention of the legislature. While remarking on the government’s resistance to truly implement the intent, the Court observed, “It shows 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.”.The third question examined by the Court was whether in absence of a provision in the Rules for reservation, can the same be denied.To answer the same, the Court referred to the judgments in Rajeev Kumar Gupta vs. Union of India and Siddaraju vs. State of Karnataka wherein the apex court had held that the absence of rules to provide for reservation in promotion would not defeat the rights of PwD to reservation in promotion as it flows from the legislation..The final and most crucial issue decided by the Supreme Court was whether the individual could be given the benefit of PwD for promotion despite not being appointed in the PwD quota.The Court held that the source of recruitment should not make any difference as long as the employee is PwD at the time for consideration of promotion.“It would be discriminatory and violative of the mandate of the Constitution of India if the respondent is not considered for promotion in the PwD quota on this pretext. Once the respondent has been appointed, she is to be identically placed as others in the PwD cadre,” the Court held. .The Court, therefore, upheld the order by the Kerala High Court saying it was salutary and does not call for any interference..[Read Order]