In a recent ruling, the Hon’ble Supreme Court held that reservation for Persons with Disabilities regulated and executed by Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is to be applied on the promotions as well.
Notably, Court also held that the disabled person can be promoted by giving the advantage of reservation as a PwD even if she was not at first appointed under the same quota. Also, the PwD Act being silent on the formulation of rules with respect to the promotion quota of disabled persons does not impliedly mean that there are no rights with respect to the same, indeed it impliedly means that there are rights for the disabled persons when it comes to promotion as well, via the Act itself.
A division bench of Justices Sanjay Kishan Kaul and R Subhash Reddy, therefore dismissed an appeal filed by the Kerala Government against the Judgment of the Kerala High Court which had directed that the respondent lady be given the promotion quota despite the fact that her initial appointment was not under the same.
Factual Background
The issue raised before the Court was pertaining to the Right to Promotion under the Rights of Persons with Disabilities Act, 1995.
Case of the Appellant
The Appellants argued that the Judgment in Siddaraju v. State of Karnataka cannot be construed to mean that reservations extend to pr motions as well. It was also the State’s contention that the respondent was not at first appointed under the PwD quota under the Act and therefore, does not possess any such right to reservation.
Observation of the Court
The Court dealt with certain relevant questions of law in order to decide the present case. First, was with respect to whether the PwD quota applies to promotions or not? While dealing with the same, the Court laid stress on the Judgment pronounced in the case of Union of India v. National Federation of the Blind wherein it was held that reservation is to be calculated with respect to the total number of vacancies in the cadre strength and no discrimination can be made between the posts that are to be filled by direct recruitment and via promotion.
It was also observed that if legislation is restricted to the initial stage of appointment, then the same will defeat the objective of the Act.
The second question of law before the Bench was whether reservation under Section 33 of the 1995 Act is based upon the identification of posts as stated by Section 32? The Court was of the view that Section 32of the Act cannot be used to suffocate the benefits one is entitled to receive under Section 33 of the Act.
“It shows that sometimes it is easier to bring legislation into force but far more difficult to change the social mindset which would endeavor 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 relevant proposition of law decided by the Court was whether in absence of a provision in the Rules for reservation, the same can be refused. The Apex Court relied on the Judgment of Rajeev Kumar Gupta v. Union of India wherein it was held by the apex court itself that the absence of rules to provide for reservation in promotion would not extinguish the rights of PwD to reservation o promotion as it flows from the legislation.
Further, it was held that the employee at the initial stage of employment was under the PwD quota or not is of no relevance, as at the time of promotion one can put to use the same.
“It would be discriminatory and violative of the mandate of the Constitution of India if the respondent is not considered for the promotion in the PwD quota on this pretext. Once, the respondent is appointed, she is to be identically placed as others in the PwD cadre”, the Court held.
Thus the Kerala High Court order was upheld saying it was salutary and does not call for any interference.
Case Details
Before: Hon’ble Supreme Court
Case Details: State of Karnataka v. Leesamma Joseph
Coram: Hon’ble Mr. Justices Mr. Sanjay Kishan Kaul and Mr. R Subhash Reddy.
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