Supreme Court: Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ has held that a person with disability should be considered for promotion along with other persons working in the feeder cadre.
The Court explained 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. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.
“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. 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 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 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 replaced the 1995 Act.
The Court made clear that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. However, the law in the present case was required to be propounded as a large number of cases may still arise in the context of the 1995 Act.
“Even under the 1995 Act, the rights of PwD, and how they would attain an equal opportunity has been an ongoing exercise blocked by a greater impediment of a social mind set change and the 2016 Act is the result thereof.”
Background
The Court was hearing the case where the respondent 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.
She, however, contended 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.
What does the law state?
The Court held that the 1995 Act mandates reservations in promotions for persons with disabilities as it provides for equal opportunity for career progression, including promotion. Thus, it would be negation of the legislative mandate if promotion is denied to PwD and such reservation is confined to the initial stage of induction in service. This would in fact result in stagnation of the disabled in a consequential frustration.[1]
Further, the operation of reservation and the computation has to be made with reference to the total number of vacancies in the cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion.
However, it is important to note that,
- there has to be rules providing for promotion from the feeder cadre to the provisional post as there cannot be promotions even for the PwD de hors the rules as a singular benefit.
- the requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre.
What happens when the State does not provide for any reservation in promotion for PwD?
The mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability and 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. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.
“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted.”
The 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.
Understandably, such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability as submitted by the learned Amicus Curiae, more often than not, the disability comes in the way of meeting the requirements for promotion. In such a situation, the government will have to explore methods to address the issue of stagnation of PwD.
In the aforesaid eventuality, Amicus Curiae suggested:
(a) to provide promotional avenues in other departments/establishments (where posts are identified for PwD at a higher level) or
(b) grant of higher pay in the same post. This is stated to be an obligation flowing from Section 47 of the 1995 Act.
“… non-discrimination in employment is a mandate of the legislature.”
[State of Kerala v. Leesamma Joseph, 2021 SCC OnLine SC 435, decided on 28.06.2021]
*Judgment by: Justice Sanjay Kishan Kaul
Gaurav Agrawal as Amicus Curiae
S.K. Rungta, Senior Counsel and Archit Verma, Legal Consultant in the office of Chief Commissioner for Persons with Disabilities.
[1] Viklang Sang Haryana vs, State of Haryana, 2011 SCC OnLine P&H 4266
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