THE STATE OF KERALA & ORS. versus LEESAMMA JOSEPH on 28 June 2021

SUPREME COURT REPORTS

[2021] 3 S.C.R.

THE STATE OF KERALA & ORS.

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v.

LEESAMMA JOSEPH

(Civil Appeal No. 59 of 2021)

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JUNE 28, 2021

[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]

Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995: ss.32, 33, 47 – Reservationin promotion – Held: ss.32, 33 and 47 provides for equalCopportunity for career progression, including promotion – Thus, itwould be negation of the legislative mandate if promotion is deniedto PwD and such reservation is confined only to the initial stage ofinduction in service – This would in fact result in stagnation of thedisabled in a consequential frustration – The operation ofDreservation and the computation has to be made with reference tothe total number of vacancies in the cadre strength and no distinctionshould be made between posts to be filled by direct recruitment andby promotion – Respondent having been given employment oncompassionate grounds and not having entered service under the1995 Act, was entitled to claim promotion under that Act.E

Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995: s.33 – Whether reservationunder s.33 of the 1995 Act is dependent upon identification of postsas stipulated by s.32 – Held: It was never the intention of thelegislature that the provisions of s.32 would be used as a tool toFfrustrate the benefits of reservation under s.33 – In fact,identification of posts for purposes of reservation had to take placeimmediately after the 1995 Act – A resistance to such reservation isobvious from the delaying tactics adopted by most of the governmentauthorities in truly implementing the intent – What is required isGidentification of posts in every establishment until exempted underproviso to s.33 – No doubt the identification of the posts was aprerequisite to appointment, but then the appointment cannot befrustrated by refusing to comply with the prerequisite.

Persons with Disabilities (Equal Opportunities, Protection ofHRights and Full Participation) Act, 1995: s.32 – In absence of a provision in the Rules for reservation in promotion for PwD, whetherpromotion can be denied to a PwD – No doubt, the mandate of s.32of the 1995 Act enjoins the government to identify posts that can befilled up with persons with disability – Thus, even posts inpromotional cadre have to be identified for PwD and such postshave to be reserved for PwD – The identification of such posts is nodoubt a prerequisite for reservation in promotion for PwD – Therecannot be methodology used to defeat the reservation in promotion– Once that post is identified, the logical conclusion would be thatit would be reserved for PwD who have been promoted – Theabsence of rules to provide for reservation in promotion would notdefeat the rights of PwD to a reservation in promotion as it flowsfrom the legislation.

Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995: Whether the Respondentcan be promoted by giving benefit of reservation as she is a PwD,despite the fact that she was not appointed in the PwD quota – The1995 Act does not make a distinction between a person who mayhave entered service on account of disability and a person whomay have acquired disability after having entered the service –Similarly, the same position would be with the person who may haveentered service on a claim of a compassionate appointment – Themode of entry in service cannot be a ground to make out a case ofdiscriminatory promotion.

Dismissing the appeal, the Court

Held: 1. Whether the 1995 Act mandates reservations inpromotions for persons with disabilities?

Conclusion

1.1 Section 32, 33 and 47 provides for equal opportunityfor career progression, including promotion. Thus, it would benegation of the legislative mandate if promotion is denied to PwDand such reservation is confined to the initial stage of inductionin service. This would in fact result in stagnation of the disabledin a consequential frustration. [Para 14][589-B-C]

1.2 The operation of reservation and the computation hasto be made with reference to the total number of vacancies in thecadre strength and no distinction should be made between posts ABC

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Ato be filled by direct recruitment and by promotion. Reservationhas to be computed with reference to total number of vacanciesin the cadre strength and no distinction can be made betweenthe posts to be filled by direct recruitment and by promotion.Thus, total number of vacancies in the cadre strength wouldinclude the vacancies to be filled in by nomination as well as byBpromotion. [Paras 15, 17][589-C-D; 589-F-G]

1.3 The two preliminaries for operationalising the saidprovision, i.e. there has to be rules providing for promotion fromthe feeder cadre to the provisional post as there cannot bepromotions even for the PwD de hors the rules as a singularCbenefit. The requirement under Section 32 of the 1995 Act hasalso to be completed for identifying the posts in the promotionalcadre. [Para 17][590-C-D]

2. Whether reservation under Section 33 of the 1995 Act isdependent upon identification of posts as stipulated by SectionD32?

There can be little doubt that it was never the intention ofthe legislature that the provisions of Section 32 would be used asa tool to frustrate the benefits of reservation under Section 33.In fact, identification of posts for purposes of reservation had toEtake place immediately after the 1995 Act. A resistance to suchreservation is obvious from the delaying tactics adopted by mostof the government authorities in truly implementing the intent.It thus shows that sometimes it is easier to bring a legislationinto force but far more difficult to change the social mind setFwhich would endeavour to find ways and means to defeat the intentof the Act enacted and Section 32 was a classic example of thesame. What is required is identification of posts in everyestablishment until exempted under proviso to Section 33. Nodoubt the identification of the posts was a prerequisite toappointment, but then the appointment cannot be frustrated byGrefusing to comply with the prerequisite. [Para 19][590-E-H; 591-A-B]

Government of India & Anr. v. Ravi Prakash Gupta &Anr. (2010) 7 SCC 626 : [2010] 7 SCR 851; Union ofIndia v. National Confederation for Development ofHDisabled & Anr. (2015) 13 SCC 643 – relied on.

3. Whether in absence of a provision in the Rules forreservation in promotion for PwD, whether promotion can bedenied to a PwD?

3.1 No doubt, the mandate of Section 32 of the 1995 Actenjoins the government to identify posts that can be filled upwith persons with disability. Thus, even posts in promotionalcadre have to be identified for PwD and such posts have to bereserved for PwD. The identification of such posts is no doubt aprerequisite for reservation in promotion for PwD. There cannotbe methodology used to defeat the reservation in promotion. Oncethat post is identified, the logical conclusion would be that it wouldbe reserved for PwD who have been promoted. The absence ofrules to provide for reservation in promotion would not defeatthe rights of PwD to a reservation in promotion as it flows fromthe legislation. [Para 20][591-D-F]

Rajeev Kumar Gupta and Others v. Union of India andOrs. (2016) 13 SCC 153 : [2016] 3 SCR 407 – relied on.

3.2 The only caveat to the aforesaid would be if theGovernment is of the view that the posts in the promotional cadrecannot be reserved for PwD category due to functional or otherreasons and that should not be a ruse to defeat the reservation inpromotion. Such a scenario will result in frustration and stagnationas others may get promoted even over the persons with disabilitymore often than not, the disability comes in the way of meetingthe requirements for promotion. In such a situation, thegovernment should explore methods to address the issue ofstagnation of PwD. [Para 21][591-G-H; 592-A]

Vikash Kumar v. Union Public Service Commission 2021(2) SCALE 468 – relied on.

3.3 A reading of Section 20 with Section 2(y) shows thatnon-discrimination in employment is a mandate of the legislature.In the context of sub-section (2) of Section 20, where theexpression used is "reasonable accommodation" as an aspect tobe provided by the Government establishments, this expressionhas been defined in Section 2(y) to mandate necessary andappropriate modifications and adjustments to ensure that the PwD

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Aenjoy or exercise their rights equally with others. There is noreason why a clue cannot be taken from such a line ofinterpretation and reasoning to carry out the intent of theLegislation. Even under the 1995 Act, the rights of PwD, andhow they would attain an equal opportunity has been an ongoingexercise blocked by a greater impediment of a social mind setBchange and the 2016 Act is the result thereof. [Paras 24, 25][593-C-E]

4. Whether the Respondent can be promoted by givingbenefit of reservation as she is a PwD, despite the fact that shewas not appointed in the PwD quota?C

4.1 The direction in the impugned order was for therespondent to be considered for the promotion based on disabilityat the time when the claim originally arose, but subject to herseniority with reference to other PwD candidates entitled to suchreservation. She was also held entitled to the notional benefits ofDher promotion from the date she was so found entitled. TheMinistry of Social Justice and Empowerment in the Departmentof Empowerment of Persons with Disabilities (Divyang),Government of India has undertaken a very comprehensiveexercise of identifying posts which can be reserved for PwD andEthe list of such posts are available on the website. From that itappears that the post of UDC/Cashier would be amenable toreservation for PwD and thus there can be little doubt that therespondent has been capable of discharging functions of thepromotional post and thus could not be denied the benefit ofreservation (even if Rules do not provide for any reservation inFpromotion) as Section 32 of the 1995 Act is to facilitate but not toimpede the legislative mandate. [Para 26][593-F-H; 594-B-D]

4.2 There is no dispute about the benchmark disability ofthe respondent. It would be discriminatory and violative of themandate of the Constitution of India if the respondent is notGconsidered for promotion in the PwD quota on this pretext. Oncethe respondent has been appointed, she is to be identically placedas others in the PwD cadre. The anomaly which would arise fromthe submission of the appellant-State is apparent - a person whocame in through normal recruitment process but suffers disability H

after joining service would on a pari materia position be also notentitled to be considered to a vacancy in a promotional postreserved for a PwD. This is the consequence if the entry point istreated as determinative of the entitlement to avail of the benefits.Source of recruitment ought not to make any difference but whatis material is that the employee is a PwD at the time forconsideration for promotion. The 1995 Act does not make adistinction between a person who may have entered service onaccount of disability and a person who may have acquired disabilityafter having entered the service. Similarly, the same positionwould be with the person who may have entered service on aclaim of a compassionate appointment. The mode of entry inservice cannot be a ground to make out a case of discriminatorypromotion. [Para 27][594-D-H]

Poonam Manchanda v. Union of India (2019) SCCOnline P&H 2710; Union of India v. PoonamManchanda Civil Appeal No. 6092/2019; KamlaChanyal v. State of Uttarakhand W.P. No. 126/2015 –judgment dated 29.11.2016; Uma Prasad v. ChiefExecutive Officer, EPFO: A case before the ChiefCommissioner for Persons with Disabilities(Divyangjan) Govt. of India – referred to.

5. The appellant-State has not implemented the judgmentof this Court in Rajeev Kumar Gupta's and Siddaraju's cases.The State of Kerala is directed to implement these judgmentsand provide for reservation in promotion in all posts afteridentifying said posts. [Para 29][596-C-D]

Union of India v. National Federation of the Blind(2013) 10 SCC 772 : [2013] 9 SCR 1023; NationalConfederation for Development of Disabled and Anr.v. Union of India and Ors. (2015) SCC OnLine Bom5112; Indra Sawhney and Ors. v. Union of India andOrs. Siddaraju v. State of Karnataka & Ors. 2020 3SCALE 99 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 59 of2021.

From the Judgment and Order dated 09.03.2020 of the High Courtof Kerala at Ernakulam in O.P.(KAT) 286 of 2015.C

Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash,G. Prakash, Advs. for the Appellants.

Gaurav Agrawal, Adv. for the Respondent.

The Judgment of the Court was delivered byDSANJAY KISHAN KAUL, J.

1. The international awakening to further the rights and equalopportunities to persons with special abilities (hereinafter referred to as'PWD') propelled the adoption of the Proclamation on the FullEParticipation and Equality of People with Disabilities in the Asian andPacific Region in the meeting of the member states of the Economicand Social Commission for Asia and the Pacific held in Beijing inDecember, 1992; to which India was a signatory. In furtherance of itsinternational commitments, The Persons with Disabilities (EqualOpportunities, Protection of Rights and Full Participation) Act, 1995F(hereinafter referred to as "the 1995 Act") was enacted which cameinto force on 7th February, 1996. In 2007, India ratified the United NationsConvention on the Rights of Persons with Disabilities (UNCRPD). Inpursuance to the debates in the Standing Committee of the Parliament,The Rights of Persons with Disabilities Act, 2016 (hereinafter referredGto as "the 2016 Act") replaced the 1995 Act.

2. The issue debated before us in the present proceedings is theright of promotion under the 1995 Act, as claimed by the respondent, inwhich she succeeded before the High Court of Kerala in terms of theimpugned order dated 9th March, 2020. The respondent did not succeedin a claim before the Kerala Administrative Tribunal which dismissedH

her application by order dated 27th February, 2015 but the said judgmentwas set aside by the impugned order.

3. On 7th January, 2021, we had noted the submission of learnedcounsel for the appellants that the respondent was given employment oncompassionate ground and thus the entry point was not of a person withdisability under the 1995 Act. In view thereof, a submission was madethat such a person cannot claim reservation in matters of promotion as itwill affect the other general candidates. We were of the view that theissue required examination, but since the respondent had retired and itwas only the issue of her financial benefits, we declined to interfere withthe relief granted by the High Court vide the impugned order. Thus, nonotice was required to be issued to the respondent. Leave was grantedto examine the legal issue and we appointed Mr. Gaurav Agrawal asAmicus Curiae to assist the Court, since the respondent would beunrepresented before us.

4. The facts relating to the respondent are not really necessary tobe recorded in detail, except to note that she was appointed in 1996 tothe post of Typist/clerk in the Police Department on compassionategrounds, after her brother had passed away during service. Sheundisputedly suffered from Post Polio Residual Paralysis (L) LowerLimb and her permanent disability had been assessed at 55%. Therespondent subsequently cleared all departmental tests for promotion,and was test qualified in December, 1998. She was given a categorychange to Lower Division clerk in July, 2001 without losing her seniorityand later on promoted as Senior Clerk (equivalent to Upper DivisionClerk) on 16th September, 2004, based on the seniority list of test qualifiedLDCs. She was thereafter promoted to the post of a Cashier on 5thMay, 2015. The issue which had been raised by the respondent was thatshe was entitled to promotion as a Senior Clerk with effect from 1stJuly, 2002 with all consequential benefits and as a Cashier with effectfrom 20th May, 2012 with all consequential benefits and thereafter asJunior Superintendent with effect from the date of her entitlement. Thisplea was predicated on reservation in matters of promotion which shesought under the 1995 Act as she suffered from physical disability.

VIEW OF THE TRIBUNAL

5. The aspect of employment under the 1995 Act has been dealtwith in Chapter VI. Section 32 mandates identification of posts which AB

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Acan be reserved for persons with disabilities (PwD) while Section 33provides for reservation of posts. The provisions read as under:

"32. Identification of posts which can be reservedforpersons with disabilities.- Appropriate Governmentsshall- B

(a) identify posts, in the establishments, which can be reservedfor the persons with disability; (b) at periodical intervals not exceeding three years, review thelist of posts identified and update the list taking into considerationthe developments in technology.

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33. Reservation of posts.- Every appropriate Governmentshall appoint in every establishment such percentage ofvacancies not less than three per cent for persons or classof persons with disability of which one per cent each shallbe reserved for persons suffering from- D

(i) blindness of low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy, in the posts identified for each disability:E

Provided that the appropriate Government may, havingregard to the type of work carried on in any department orestablishment, by notification subject to such conditions, if any, asmay be specified in such notification, exempt any establishmentfrom the provisions of this section."F

6. On a reading of Section 33, the Tribunal observed that it onlyprovided for reservation of not less than 3% for persons or class ofPwD but did not provide for reservation in promotion. Section 32mandating identification of posts was noticed by the Tribunal and thegovernment order issued thereunder limited the reservation only in mattersGof direct recruitment through the Public Service Commission. ThePromotion was once again an aspect not provided for.

7. The Tribunal took into account the judgment of this Court inUnion of India vs. National Federation of the Blind[1] to opine that the issue dealt with thereunder was whether 3% reservation was to be appliedin reference to vacancies in a particular post arising from time to time,or the cadre strength of that post. In that context, it was opined by thisCourt that reservation was to be applied with reference to vacancies.The absence of any observations regarding reservation in promotionwas noticed. The judgment of the Bombay High Court in NationalConfederation for Development of Disabled and Anr. vs. Union ofIndia and Ors.[2] which directed benefit of reservation in matters ofpromotion was also examined; but it was opined that the rules ofRecruitment in the State of Kerala, General Rules and other orders issuedby the Government under Section 32 of the 1995 Act did not provide forany reservation in promotions. Thus, the application before the Tribunalwas dismissed.

VIEW OF THE KERALA HIGH COURT

8. The High Court succinctly set forth a question of law as towhether persons having physical disability could be granted reservationin promotion. In this regard, the judgment of this Court deliveredsubsequently in Rajeev Kumar Gupta and Others vs. Union of Indiaand Ors.[3] was taken note of to the effect that reservation would beapplicable even in promotion. Another Bench of this Court had referredthe matter to a larger Bench in this behalf on the question of whether thedicta would go against the decision in Indra Sawhney and Ors. vs.Union of India and Ors.[4] The matter was resolved in Siddaraju vs.State of Karnataka & Ors.[5] wherein it was affirmed that such reservationwas applicable in promotions and the ratio of Indra Sawhney's case(supra) was distinguished. The High Court thus set aside the order ofthe Tribunal and granted relief to the respondent.

CASE OF THE APPELLANTS

9. A threefold submission was made before us on behalf of theAppellant-State:

a.In Siddaraju's case(supra) it was opined that Sections 32and 33 of the 1995 Act mandated that 3-4 per cent of theposts identified by the government were to be reserved for 2 2015 SCC Online Bom 5112.

3 (2016) 13 SCC 153.

4 1992 Supp (3) SCC 217.

5 2020 3 SCALE 99.

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appointment of persons suffering from physical disabilities.It was pleaded that this cannot be interpreted to mean thatsuch a reservation would extend even to promotions.

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b.Though undoubtedly the respondent suffered from physicaldisability, she was not appointed through a recruitmentprocess under the 1995 Act, but was appointed oncompassionate grounds on the demise of her brother- adifferent channel of recruitment. It was thus submitted thatshe could not claim any right to reservation in promotionunder the 1995 Act.

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Cc.The government had issued several orders providing 3-4per cent reservation as per the 1995 Act in matters ofappointment.

SUBMISSIONS OF THE AMICUS CURIAE

10. Mr. Gaurav Agrawal, learned Amicus Curiae, took us throughDthe conspectus of the legal pronouncements dealing with the aspect ofreservation in promotion under the 1995 Act, and the consequences ofthe repeal of that Act on the enactment of 2016 Act. In this behalf, wemay note that the State Government, on perusal of the written note ofarguments of the learned Amicus Curiae, sought to draw our attention toEthe factum of filing of MA No. 2171/2020 for clarification of the judgmentin Siddaraju's case (supra) and pleaded for the result of the applicationto be awaited. However, on the other hand, the learned Amicus Curiaesubmitted that he had examined the record of that case and the issueinvolved therein is not concerned with the issue arising in the presentcase. We may note Section 34 of the 2016 Act which reads as under:F

34. Reservation.–(1) Every appropriate Government shall appointin every Government establishment, not less than four per cent.of the total number of vacancies in the cadre strength in eachgroup of posts meant to be filled with persons with benchmarkdisabilities of which, one per cent. each shall be reserved forGpersons with benchmark disabilities under clauses (a), (b) and (c)and one per cent. for persons with benchmark disabilities underclauses (d) and (e), namely:- (a) blindness and low vision; (b) deaf and hard of hearing; H

(c) locomotor disability including cerebral palsy, leprosy cured,dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability andmental illness; (e) multiple disabilities from amongst persons under clauses (a) to(d) including deaf-blindness in the posts identified for eachdisabilities:

Provided that the reservation in promotion shall be inaccordance with such instructions as are issued by the appropriateGovernment from time to time:

Provided further that the appropriate Government, inconsultation with the Chief Commissioner or the StateCommissioner, as the case may be, may, having regard to thetype of work carried out in any Government establishment, bynotification and subject to such conditions, if any, as may bespecified in such notifications exempt any Governmentestablishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filledup due to non-availability of a suitable person with benchmarkdisability or for any other sufficient reasons, such vacancy shallbe carried forward in the succeeding recruitment year and if inthe succeeding recruitment year also suitable person withbenchmark disability is not available, it may first be filled byinterchange among the five categories and only when there is noperson with disability available for the post in that year, the employershall fill up the vacancy by appointment of a person, other than aperson with disability:

Provided that if the nature of vacancies in an establishmentis such that a given category of person cannot be employed, thevacancies may be interchanged among the five categories withthe prior approval of the appropriate Government.

(3) The appropriate Government may, by notification,provide for such relaxation of upper age limit for employment ofpersons with benchmark disability, as it thinks fit."

11. The material aspect is the proviso inserted stipulating thatreservations in promotions shall be in accordance with such instructions A

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Aas are issued by the appropriate government from time to time. M.A.No. 2171/2020 has been filed for clarification in view of the proviso,seeking the view of the Court as to how that would operate and fromwhich date. The earstwhile Section 33 of the 1995 Act did not have sucha provision. The reason why this clarification was not relevant was notedby us on 24th March, 2021. It was explained that since the present caseBwas admittedly governed by the provisions of 1995 Act; and the mainissue arising for consideration is whether the respondent having beengiven employment on compassionate grounds and not having enteredservice under the 1995 Act, was entitled to claim promotion under that Act. The plea of the State was that since the rules of the appellant-CState did not provide for any reservation in promotion to people who aregoverned by the 1995 Act, the same was not permissible.

12. Mr. Gaurav Agrawal, learned Amicus Curiae, submitted anexhaustive written note setting forth the judicial pronouncements andset out four issues which would arise for consideration. We now proceedDto discuss each of the four aspects hereinafter:

I. Whether the 1995 Act mandates reservations inpromotions for persons with disabilities?

13. A broad aspect sought to be submitted before us is that Sections32 and 33 of the 1995 Act had to be interpreted in juxtaposition andEconsonance with Section 47 of that Act which reads as under:

"47. Non-discrimination in Government employment. —

(1) No establishment shall dispense with, or reduce in rank, anemployee who acquires a disability during his service:

FProvided that, if an employee, after acquiring disability isnot suitable for the post he was holding, could be shifted to someother post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust theemployee against any post, he may be kept on a supernumeraryGpost until a suitable post is available or he attains the age ofsuperannuation, whichever is earlier.

(2) No promotion shall he denied to a person merely on the groundof his disability:

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Provided that the appropriate Government may, havingregard to the type of work carried on in any establishment, bynotification and subject to such conditions, if any, as may bespecified in such notification, exempt any establishment from theprovisions of this section."

14. The legislative mandate has to be understood in the aforesaidcontext as it provides for equal opportunity for career progression,including promotion. Thus, it would be negation of the legislative mandateif promotion is denied to PwD and such reservation is confined to theinitial stage of induction in service. This would in fact result in stagnationof the disabled in a consequential frustration.[6]

15. The operation of reservation and the computation has to bemade with reference to the total number of vacancies in the cadrestrength and no distinction should be made between posts to be filled bydirect recruitment and by promotion.

16. The last aspect submitted in this behalf is that the reservationcould be granted to PwD if: (i) the Rules provide for promotion from thefeeder cadre to the promotional posts; and (ii) posts are identified in thepromotional cadre, which are capable of being filled up with Personswith Disability.[7]

17. On examination of the aforesaid plea we find that that there ismerit in what the learned Amicus Curiae contends and we are of theview that really this issue is no more res integra in view of the judgmentof this Court in Government of India & Anr. vs. Ravi Prakash Gupta& Anr.[8] and Union of India vs. National Federation of the Blind(supra) opining that reservation has to be computed with reference tototal number of vacancies in the cadre strength and no distinction can bemade between the posts to be filled by direct recruitment and bypromotion. Thus, total number of vacancies in the cadre strength wouldinclude the vacancies to be filled in by nomination as well as by promotion.In fact, this was the view adopted by the Bombay High Court discussed 6 This was held in Viklang Sang Haryana vs, State of Haryana, 2011 SCC OnLine P&H

4266 as the State of Haryana did not provide for reservation in promotion to PwD inClass III and IV posts.

7 This is how the Bombay High Court in Ravindra v. Union of India, 2020 SCC OnLineBom 771 has interpreted the judgments of this Hon'ble Court in Rajeev Kumar Gupta(supra) and Siddaraju (supra).8 (2010) 7 SCC 626.

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Aaforesaid in National Confederation for Development of Disabledand Anr. vs. Union of India and Ors. (supra) with the challenge raisedto the same in a SLP being rejected in Union of India vs. NationalConfederation for Development of Disabled & Anr.[9]. We may notethe observations in Rajeev Kumar Gupta and Others vs. Union ofIndia and Others (supra) in paragraph 24 to the effect: "Once the postBis identified, it must be reserved for PwD irrespective of the mode ofrecruitment adopted by the State for filling up of the said post" and adirection was issued to the Government to extend 3% reservation toPwD in all identified posts in Group A and Group B "irrespective of themode of filling up of such posts".CLearned Amicus Curiae has rightly pointed out the twopreliminaries for operationalising the said provision, i.e. there hasto be rules providing for promotion from the feeder cadre to theprovisional post as there cannot be promotions even for the PwDde hors the rules as a singular benefit. The requirement underDSection 32 of the 1995 Act has also to be completed for identifyingthe posts in the promotional cadre.

18. In our view, the aforesaid should put at rest the controversyinsofar as the mandate of 1995 Act qua promotion is concerned.

II. Whether reservation under Section 33 of the 1995 ActEis dependent upon identification of posts as stipulated bySection 32?

19. On a plea of the learned Amicus Curiae, which we unhesitatinglyaccept, there can be little doubt that it was never the intention ofthe legislature that the provisions of Section 32 would be used asFa tool to frustrate the benefits of reservation under Section 33. Infact, identification of posts for purposes of reservation had to takeplace immediately after the 1995 Act. A resistance to suchreservation is obvious from the delaying tactics adopted by mostof the government authorities in truly implementing the intent. ItGthus shows that sometimes it is easier to bring a legislation intoforce but far more difficult to change the social mind set whichwould endeavour to find ways and means to defeat the intent ofthe Act enacted and Section 32 was a classic example of the H9 (2015) 13 SCC 643.

H9 (2015) 13 SCC 643.

same. In Government of India & Anr. vs. Ravi Prakash Gupta& Anr. (supra) also, this Court mandated the identification ofposts for purposes of reservation. Thus, what is required isidentification of posts in every establishment until exempted underproviso to Section 33. No doubt the identification of the posts wasa prerequisite to appointment, but then the appointment cannot befrustrated by refusing to comply with the prerequisite. This viewwas affirmed by a larger Bench of three Judges in Union of Indiavs. National Federation of Blind (supra).

III. Whether in absence of a provision in the Rules forreservation in promotion for PwD, whether promotion canbe denied to a PwD?

20. The aforesaid issue was raised by learned Amicus Curiae inthe context of the plea of the appellant State that the State doesnot provide for any reservation in promotion for PwD. Thus, aperson with disability would be considered for promotion alongwith other persons working in the feeder cadre. We have no doubtthat the mandate of Section 32 of the 1995 Act enjoins thegovernment to identify posts that can be filled up with personswith disability. Thus, even posts in promotional cadre have to beidentified for PwD and such posts have to be reserved for PwD.The identification of such posts is no doubt a prerequisite forreservation in promotion for PwD. There cannot be methodologyused to defeat the reservation in promotion. Once that post isidentified, the logical conclusion would be that it would be reservedfor PwD who have been promoted. The absence of rules to providefor reservation in promotion would not defeat the rights of PwDto a reservation in promotion as it flows from the legislation and inour view, this is the basis of the mandate of this Court in RajeevKumar Gupta's and Siddaraju's cases (supra).

21. The only caveat to the aforesaid would be if the Governmentis of the view that the posts in the promotional cadre cannot bereserved for PwD category due to functional or other reasonsand that should not be a ruse to defeat the reservation in promotion.We are conscious of the fact that such a scenario will result infrustration and stagnation as others may get promoted even overthe persons with disability as submitted by the learned AmicusCuriae, more often than not, the disability comes in the way of AB

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Ameeting the requirements for promotion. In such a situation, wewould require the government to explore methods to address theissue of stagnation of PwD.

22. In the aforesaid eventuality, learned Amicus Curiae hassuggested some solutions, i.e., (a) to provide promotional avenuesBin other departments/establishments (where posts are identifiedfor PwD at a higher level) or (b) grant of higher pay in the samepost. This is stated to be an obligation flowing from Section 47 ofthe 1995 Act.

23. In the recent judgment of this Court in Vikash Kumar vs.CUnion Public Service Commission[10] while dealing with the latter2016 Act, an expansive interpretation has been given to Section20 read with Section 2(y). The said provisions read as under:

"20. Non-discrimination in employment.-

(1) No Government establishment shall discriminate against anyDperson with disability in any matter relating to employment:

Provided that the appropriate Government may, havingregard to the type of work carried on in any establishment, bynotification and subject to such conditions, if any, exempt anyestablishment from the provisions of this section.

E(2) Every Government establishment shall provide reasonableaccommodation and appropriate barrier free and conduciveenvironment to employees with disability.

(3) No promotion shall be denied to a person merely on the groundof disability.

F(4) No Government establishment shall dispense with or reducein rank, an employee who acquires a disability during his or herservice:

Provided that, if an employee after acquiring disability isGnot suitable for the post he was holding, shall be shifted to someother post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust theemployee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age ofsuperannuation, whichever is earlier.

(5) The appropriate Government may frame policies for postingand transfer of employees with disabilities."

"2. Definitions-

(y) "reasonable accommodation" means necessary and appropriatemodification and adjustments, without imposing a disproportionateor undue burden in a particular case, to ensure to persons withdisabilities the enjoyment or exercise of rights equally with others;"

24. A reading of the aforesaid provisions shows that non-discrimination in employment is a mandate of the legislature. Inthe context of sub-section (2) of Section 20, where the expressionused is "reasonable accommodation" as an aspect to be providedby the Government establishments, this expression has been definedin Section 2(y) to mandate necessary and appropriate modificationsand adjustments to ensure that the PwD enjoy or exercise theirrights equally with others.

25. We see no reason why a clue cannot be taken from such aline of interpretation and reasoning to carry out the intent of theLegislation. Even under the 1995 Act, the rights of PwD, andhow they would attain an equal opportunity has been an ongoingexercise blocked by a greater impediment of a social mind setchange and the 2016 Act is the result thereof.

IV. Whether the Respondent can be promoted by givingbenefit of reservation as she is a PwD, despite the fact thatshe was not appointed in the PwD quota?

26. If we may say so, this was the most crucial issue whichpersuaded us to grant leave in the SLP. The direction in theimpugned order was for the respondent to be considered for thepromotion based on disability at the time when the claim originallyarose, but subject to her seniority with reference to other PwDcandidates entitled to such reservation. She was also held entitledto the notional benefits of her promotion from the date she was sofound entitled. In the factual context, it has been pointed out bylearned Amicus Curiae that the respondent had claimed apromotion to the post of UDC with effect from 1st July, 2002 and A

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Afurther to the post of Cashier with effect from 20th May, 2012.The endeavour of the Amicus Curiae was to obtain necessaryinformation from the appellant-State and to seek their response.In this behalf, it has been pointed out that The Ministry of SocialJustice and Empowerment in the Department of Empowermentof Persons with Disabilities (Divyang), Government of India hasBundertaken a very comprehensive exercise of identifying postswhich can be reserved for PwD and the list of such posts areavailable on the website. From that it appears that the post ofUDC/Cashier would be amenable to reservation for PwD andthus there can be little doubt that the respondent has been capableCof discharging functions of the promotional post and thus couldnot be denied the benefit of reservation (even if Rules do notprovide for any reservation in promotion) as repeatedly observedby us that Section 32 of the 1995 Act is to facilitate but not toimpede the legislative mandate.

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27. Now coming to the question of the respondent not being initiallyappointed in the quota for PwD in the feeder cadre, we note thatthere is no dispute about the benchmark disability of the respondent.It would be discriminatory and violative of the mandate of theConstitution of India if the respondent is not considered forpromotion in the PwD quota on this pretext. Once the respondenthas been appointed, she is to be identically placed as others in thePwD cadre. The anomaly which would arise from the submissionof the appellant-State is apparent - a person who came in throughnormal recruitment process but suffers disability after joiningservice would on a pari materia position be also not entitled to be D

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Fconsidered to a vacancy in a promotional post reserved for a PwD.This is the consequence if the entry point is treated as determinativeof the entitlement to avail of the benefits. Source of recruitmentought not to make any difference but what is material is that theemployee is a PwD at the time for consideration for promotion.The 1995 Act does not make a distinction between a person whoGmay have entered service on account of disability and a personwho may have acquired disability after having entered the service.Similarly, the same position would be with the person who mayhave entered service on a claim of a compassionate appointment.The mode of entry in service cannot be a ground to make out aHcase of discriminatory promotion.

THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH[SANJAY KISHAN KAUL, J.]

SOME VIEWS OF THE HIGH COURT

28. Mr. Gaurav Agrawal, learned Amicus Curiae through the notealso pointed out different views of the High Court –

a. Poonam Manchanda vs. Union of India[11] - The Punjab and Haryana High Court while dealing with thecase of the petitioner having 70% disability noticed that shehad been appointed as Assistant Accounts Officer in 1999 andpromoted as Accounts Officer in 2007. On both occasionsshe did not claim reservation but was considered in generalcategory. The next post was that of Senior Accounts Officerand she claimed promotion on roster No. 1 earmarked for PwD.The Rules did not provide for reservation for PwD in promotionto Group A and Group B posts. The High Court granted reliefrelying upon Rajeev Kumar Gupta's case (supra) and directedthat the petitioner be considered for promotion under 3%reservation provided for PwD.

b. Union of India vs. Poonam Manchanda[12] - An appeal was filed before this Court was dealt with alongwith a batch of matters of which judgment was delivered inSiddaraju's case (supra).

c. Kamla Chanyal vs. State of Uttarakhand[13] - The Uttarakhand High Court once again relying upon the judgmentin Rajeev Kumar Gupta's case (supra) quashed an OM to the extentthat it ruled out reservation for PwD in Group A and B posts and directedthe Government to consider the issue relating to the availability of benefitof reservation to the petitioner therein in the capacity as PwD. We maynote that as per the solution of learned Amicus Curiae, the ChiefCommissioner for Persons with Disabilities [Divyangjan], Governmentof India receives a number of complaints regarding non-grant of promotionto PwD in Group A and B posts by denying them benefit of reservationin promotion. In B. Uma Prasad vs. Chief Executive Officer, EPFO[14], 11 2019 SCCOnline P&H 2710.

12 Civil Appeal No. 6092/2019.

13 W.P. No. 126/2015 - judgment dated 29.11.2016

14 A case before the Chief Commissioner for Persons with Disabilities (Divyangjan),Govt. of India A

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Athe Chief Commissioner noticed that the complainant was not being givenreservation in promotion to Group B post and recommended that therespondent may give promotion to persons with benchmark disabilitiesin all posts, including Group A and Group B posts.

CONCLUSION

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29. We are of the view that the course of action followed by theHigh Court in the impugned order is salutary and does not call for anyinterference. We have also answered various questions which have arisenin the present proceedings assisted by learned AmicusCuriae. In fact,what seems to emerge is that the appellant-State has not implementedCthe judgment of this Court in Rajeev Kumar Gupta's and Siddaraju'scases(supra). Thus, we consider it appropriate to issue directions to theState of Kerala to implement these judgments and provide for reservationin promotion in all posts after identifying said posts. This exercise shouldbe completed within a period of three months. We are making it timebound so that the mandate of the Act is not again frustrated by makingDSection 32 as an excuse for not having identified the post.

30. We may also note that the 2016 Act has now taken care ofhow to deal with the aspect of reservation in promotion. The viewaforesaid was required to be propounded as a large number of casesmay still arise in the context of the 1995 Act.

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31. The appeal is accordingly dismissed in terms aforesaid.

32. We record our appreciation for the able assistance renderedby Mr. Gaurav Agrawal, learned Amicus Curiae and note that whilesubmitting his synopsis he was furnished assistance in turn by Mr. S.K.FRungta, learned Senior Counsel and Mr. Archit Verma, Legal Consultantin the office of Chief Commissioner for Persons with Disabilities.

Devika Gujral

Appeal dismissed.

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