THE STATE OF KERALA & ORS.
Civil Appeal No. 59 OF 2021, Decided on 28th June, 2021
Judges: Sanjay Kishan Kaul, R. Subhash Reddy JJ.
The facts in brief of the case are that 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 suffered from Post Polio Residual Paralysis (L) Lower Limb and her permanent disability had been assessed at 55%.
The case of the respondent before the Courts was that she was entitled to promotion as a Senior Clerk with effect from 2002 with all consequential benefits and as a Cashier with effect from 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, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as “the 1995 Act”) as she suffered from physical disability. The respondent claim was allowed by the High Court of Kerala in appeal from the judgment and order of the Kerala Administrative Tribunal which had dismissed her application.
The Supreme Court in Appeal negatived the arguments of Appellant-State and dismissed its appeal and upheld the judgment of the Kerala High Court.
Whether the respondent had any right of promotion under the, the 1995 Act?
The Supreme Court taking into account the legislative mandate held in affirmative that there was no doubt 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.
Whether the Respondent can be promoted by giving benefit of reservation as she is a PwD, despite the fact that she was not appointed in the PwD quota?
It is worth mentioning here that, it was argued by the Appellant-State that since, the respondent was not being initially appointed in the quota for PwD in the feeder cadre, hence, she could not be given promotion in parent cadre.
The Supreme Court took note of the same observed that, since there is no dispute about the benchmark disability of the respondent, 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 further went on to observe that the anomaly which would arise from the submission of the appellant-State is apparent – a person who came in through normal recruitment process but suffers disability after joining service would on a pari materia position be also not entitled to be considered to a vacancy in a promotional post reserved for a PwD. This is the consequence if the entry point is treated as determinative of the entitlement to avail of the benefits. Source of recruitment ought not to make any difference but what is material is that the employee is a PwD at the time for consideration for promotion.
Further, the Court observed that the 1995 Act does not make a distinction between a person who may have entered service on account of disability and a person who may have acquired disability after having entered the service. The mode of entry in service cannot be a ground to make out a case of discriminatory promotion. Therefore, the respondent was duly entitled to all the consequential benefits for which she was entitled.