Excerpt
In this case, an appeal was filed by the State of Kerala against a judgment of the Kerala High Court. This appeal was on the ground that an employee suffering from physical disability was appointed on compassionate grounds on the demise of her brother and not appointed through a recruitment process under the 1995 Act. So, she could not claim any right to reservation in promotion under the 1995 Act. Rejecting this contention, the Court said that the High Court’s judgment was “salutary” and did not require any interference. Furthermore, the Court observed that the mode of entry in service was not a relevant criterion for promotion under the PwD quota. And the persons with physical disabilities had the right to reservation in promotions also.
Facts of the case
In this case, a claim was sought under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Moreover, this Act was replaced with the Rights of Persons with Disabilities Act 2016. Furthermore, Respondent Leesamma Joseph was appointed as a typist/clerk in Police Department in 1996 on compassionate grounds on the demise of her brother. Besides, Respondent also suffered from a permanent disability of 55% on account of Polio. Further, she raised a claim that she was authorized 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 statement was based on the PwD Act 1995. The Kerala Administrative Tribunal rejected her plea stating that the rule of Recruitment in the State of Kerala, General Rules, and other orders issued by the Government under Section 32 of the 1995 Act did not provide for any reservation in promotions. Later, the Kerala High Court set aside this judgement of the Kerala Administrative Tribunal. So, the State of Kerala filed this petition.
Arguments before the Court
The Learned Counsel for the Appellants submitted that the Respondent was given employment on compassionate ground and thus the entry point was not of a person with a 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. The Learned Counsel further submitted that in Siddaraju’s case it was opined that Sections 32 and 33 of the 1995 Act mandated that 3-4 percent of the posts identified by the government were to be reserved for appointment of persons suffering from physical disabilities. And thus, it was pleaded that this cannot be interpreted to mean that such a reservation would extend even to promotions. Furthermore, it was stated that though undoubtedly the Respondent suffered from physical disability, she was not appointed through a recruitment process under the 1995 Act, but was appointed on compassionate grounds on the demise of her brother- a different channel of recruitment. It was thus submitted that she could not claim any right to reservation in promotion under the 1995 Act. Also, the government had issued several orders providing 3-4 per cent reservation as per the 1995 Act in matters of appointment.
Since the Respondent had retired and it was only the issue of her financial benefits, the Court 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 the Court thereby appointed Mr. Gaurav Agrawal as Amicus Curiae to assist the Court, since the Respondent would be unrepresented before the Court. Thereby, Mr Gaurav Agrawal submitted an exhaustive written note setting forth the judicial pronouncements and set out four issues that would arise for consideration.
Court’s Observations
The Court observed the four issues pointed out by the Amicus Curiae. The four issues raised were namely, whether the 1995 Act mandates reservations in promotions for persons with disabilities? whether reservation under Section 33 of the 1995 Act was dependent upon identification of posts as stipulated by Section 32?; whether the Respondent can be promoted by giving the benefit of reservation as she was a PwD, despite the fact that she was not appointed in the PwD quota? The Supreme Court, by scrutinizing the four issues, rejected the argument raised by the State of Kerala which said that the candidate cannot be given a reservation in promotion as she was appointed on compassionate grounds and not in the PwD quota. Further, the Court observed that to accept the Appellant’s argument would be discriminatory and violative of the mandate of the Constitution. Moreover, once the Respondent was appointed, she was to be identically placed as others in the PwD cadre. Further, the Court observed that the Mode of recruitment was immaterial for asserting rights under the PwD Act. Even if the person was designated on compassionate grounds, that could not be a reason to deny reservation benefits available to a PwD. The Source of recruitment ought not to make any difference but what was material was that the employee was a PwD at the event for consideration for promotion. Moreover, the 1995 Act does not make any distinction between a person who has entered service on account of disability and a person who has acquired a disability after having entered the service. Similarly, the same position would be with the person who entered service on a claim of a compassionate appointment. The Court also referred a number of prominent judgments, namely, Poonam Manchanda vs. Union of India; Kamla Chanyal vs. State of Uttarakhand; Rajeev Kumar Gupta’s case; Siddaraju’s case; Vikash Kumar vs. Union Public Service Commission; Government of India & Anr. vs. Ravi Prakash Gupta & Anr.; National Confederation for Development of Disabled and Anr. vs. Union of India and Ors.; Union of India vs. National Confederation for Development of Disabled & Anr. and many more. The Court noted that the 2016 Act had promptly taken care of how to deal with the aspect of reservation in promotion. Nevertheless, the Court said it propounded the above-mentioned views as many cases may still arise under the 1995 Act.
Court’s Decision
Observing the above-mentioned considerations, the Court dismissed the petition and declared that the High Court in the impugned order was salutary. Further, the Court issued directions to the State of Kerala to provide for reservation in promotion in all posts after identifying said posts. Further, this exercise should be completed within a period of three months. This time- period was set so that the mandate of the Act was not again frustrated by making Section 32 as an excuse for not having identified the post. The Court also noted that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. The view aforesaid was required to be propounded as a large number of cases may still arise in the context of the 1995 Act.
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