Date of the Judgment: June 28, 2021
Citation: 2021 INSC 414
Judges: Sanjay Kishan Kaul, J. and R. Subhash Reddy, J.
Can a person with a disability, who was appointed on compassionate grounds, claim reservation in promotions under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995? The Supreme Court addressed this crucial question in the case of *State of Kerala & Ors. vs. Leesamma Joseph*, affirming the rights of disabled employees to equal opportunities in career progression. This judgment clarifies that reservation benefits extend to promotions, not just initial appointments, for persons with disabilities, regardless of their mode of entry into service. The bench comprised Justices Sanjay Kishan Kaul and R. Subhash Reddy, with the judgment authored by Justice Sanjay Kishan Kaul.
Case Background
The respondent, Leesamma Joseph, was appointed as a Typist/Clerk in the Kerala Police Department in 1996 on compassionate grounds following the death of her brother. She has a 55% disability due to Post Polio Residual Paralysis (L) Lower Limb. Despite her disability, she cleared all departmental tests and was promoted to Lower Division Clerk (LDC) in 2001, Senior Clerk (equivalent to Upper Division Clerk) in 2004, and Cashier in 2015. She sought further promotions as Senior Clerk from July 1, 2002, and Cashier from May 20, 2012, with all consequential benefits, based on reservation for persons with disabilities under the 1995 Act.
Timeline:
| Date | Event |
|---|---|
| December 1992 | India signs the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region in Beijing. |
| 1995 | The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the 1995 Act) is enacted. |
| February 7, 1996 | The 1995 Act comes into force. |
| 1996 | Leesamma Joseph is appointed as Typist/Clerk in the Police Department on compassionate grounds. |
| December 1998 | Leesamma Joseph clears all departmental tests for promotion. |
| July 2001 | Leesamma Joseph is given a category change to Lower Division Clerk (LDC) without losing her seniority. |
| September 16, 2004 | Leesamma Joseph is promoted as Senior Clerk (equivalent to Upper Division Clerk). |
| 2007 | India ratifies the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). |
| May 5, 2015 | Leesamma Joseph is promoted to the post of Cashier. |
| February 27, 2015 | Kerala Administrative Tribunal dismisses Leesamma Joseph’s application for promotion benefits. |
| March 9, 2020 | Kerala High Court sets aside the Tribunal’s order and grants relief to Leesamma Joseph. |
| 2016 | The Rights of Persons with Disabilities Act, 2016 (the 2016 Act) replaces the 1995 Act. |
| June 28, 2021 | Supreme Court dismisses the appeal, upholding the High Court’s decision. |
Course of Proceedings
The Kerala Administrative Tribunal dismissed Leesamma Joseph’s application, stating that the 1995 Act only provided for reservation in initial appointments, not promotions. The Tribunal noted that the government orders issued under Section 32 of the 1995 Act limited reservations to direct recruitment. However, the High Court of Kerala overturned the Tribunal’s decision, relying on the Supreme Court’s judgment in *Rajeev Kumar Gupta and Others vs. Union of India and Ors.*, which stated that reservation applies to promotions as well. The High Court also referred to the case of *Siddaraju vs. State of Karnataka & Ors.*, which affirmed the applicability of reservation in promotions, distinguishing the ratio of *Indra Sawhney and Ors. vs. Union of India and Ors.*.
Legal Framework
The core legal provisions discussed in this judgment are from the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995:
- Section 32: “Identification of posts which can be reserved for persons with disabilities. – Appropriate Governments shall- (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b)at periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the developments in technology.” This section mandates the government to identify posts that can be reserved for persons with disabilities.
- Section 33: “Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from- (i) blindness of low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” This section provides for reservation of posts for persons with disabilities.
- Section 47: “Non-discrimination in Government employment. — (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall he denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” This section ensures non-discrimination in employment, including promotions for persons with disabilities.
The Court also referred to Section 34 of the Rights of Persons with Disabilities Act, 2016, which replaced the 1995 Act. This section specifies that reservation in promotions shall be in accordance with instructions issued by the government from time to time.
Arguments
Arguments of the Appellants (State of Kerala):
- The State argued that Sections 32 and 33 of the 1995 Act mandate reservation only for initial appointments and do not extend to promotions.
- The State contended that the respondent was appointed on compassionate grounds, not through the regular recruitment process under the 1995 Act, and therefore, she could not claim reservation in promotions.
- The State submitted that government orders provided 3-4% reservation only for appointments, not promotions.
Arguments of the Amicus Curiae:
- The Amicus Curiae argued that Sections 32 and 33 of the 1995 Act must be interpreted in conjunction with Section 47, which provides for equal opportunities, including promotions for persons with disabilities.
- The Amicus Curiae submitted that denying promotions to persons with disabilities would negate the legislative intent and result in stagnation.
- The Amicus Curiae contended that reservation should be computed based on the total number of vacancies in the cadre strength, without distinguishing between direct recruitment and promotion.
- The Amicus Curiae argued that reservation could be granted if the rules provide for promotion from the feeder cadre and posts are identified in the promotional cadre that can be filled by persons with disabilities.
- The Amicus Curiae submitted that the absence of rules for reservation in promotion should not defeat the rights of persons with disabilities, as the right flows from the legislation.
- The Amicus Curiae argued that the respondent should be considered for promotion in the PwD quota, irrespective of her mode of entry into service.
| Main Submissions | Sub-Submissions of Appellants (State of Kerala) | Sub-Submissions of Amicus Curiae |
|---|---|---|
| Whether the 1995 Act mandates reservations in promotions for persons with disabilities? |
✓ Sections 32 and 33 of the 1995 Act do not explicitly mention reservations in promotions. ✓ Reservation is only for initial appointments. |
✓ Sections 32 and 33 should be read with Section 47, which ensures equal opportunities, including promotions. ✓ Denial of promotion would negate the legislative intent and cause stagnation. ✓ Reservation should apply to all vacancies, including those filled by promotion. |
| Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32? | ✓ The government has not identified posts for reservation in promotions. |
✓ Section 32 should not be used to frustrate the benefits of reservation under Section 33. ✓ Identification of posts should have been done immediately after the 1995 Act came into force. |
| Whether in absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD? | ✓ The State rules do not provide for reservation in promotions for PwD. |
✓ The absence of rules should not defeat the rights of PwD to reservation in promotion. ✓ The government should explore methods to address the issue of stagnation of PwD. |
| 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? | ✓ The respondent was appointed on compassionate grounds, not under the PwD quota. |
✓ The mode of entry into service should not be a ground to deny promotion. ✓ Once appointed, the respondent should be treated equally with other PwD candidates. |
Issues Framed by the Supreme Court
The Supreme Court addressed the following key issues:
- Whether the 1995 Act mandates reservations in promotions for persons with disabilities.
- Whether reservation under Section 33 of the 1995 Act is dependent on the identification of posts as stipulated by Section 32.
- Whether, in the absence of a provision in the Rules for reservation in promotion for PwD, promotion can be denied to a PwD.
- 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.
Treatment of the Issue by the Court
| Issue | Court’s Decision and Reasoning |
|---|---|
| Whether the 1995 Act mandates reservations in promotions for persons with disabilities? | The Court held that the 1995 Act does mandate reservations in promotions for persons with disabilities. It emphasized that Sections 32 and 33 must be interpreted in conjunction with Section 47, which ensures equal opportunities for career progression, including promotions. The court noted that denying promotions to PwD would negate the legislative intent and result in stagnation. |
| Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32? | The Court clarified that Section 32 should not be used to frustrate the benefits of reservation under Section 33. The identification of posts for reservation had to take place immediately after the 1995 Act came into force. The Court stated that while identification of posts was a prerequisite to appointment, the appointment cannot be frustrated by refusing to comply with this prerequisite. |
| Whether, in the absence of a provision in the Rules for reservation in promotion for PwD, promotion can be denied to a PwD? | The Court stated that the absence of rules providing for reservation in promotion would not defeat the rights of PwD to a reservation in promotion, as it flows from the legislation. The Court also noted that if posts in the promotional cadre cannot be reserved for PwD due to functional or other reasons, the government should explore methods to address the issue of stagnation of PwD. |
| 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? | The Court held that the respondent should be considered for promotion in the PwD quota, irrespective of her mode of entry into service. The Court emphasized that 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 the pretext that she was not initially appointed in the PwD quota. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How the Authority was Considered |
|---|---|---|
| Government of India & Anr. vs. Ravi Prakash Gupta & Anr. [(2010) 7 SCC 626] | Supreme Court of India | The Court relied on this case to emphasize that reservation has to be computed with reference to total number of vacancies in the cadre strength, without distinguishing between direct recruitment and promotion. |
| Union of India vs. National Federation of the Blind [(2013) 10 SCC 772] | Supreme Court of India | The Court referred to this case to reiterate that reservation has to be computed with reference to the total number of vacancies in the cadre strength and no distinction can be made between posts filled by direct recruitment and promotion. |
| National Confederation for Development of Disabled and Anr. vs. Union of India and Ors. [2015 SCC OnLine Bom 5112] | Bombay High Court | The Court noted that the Bombay High Court had directed that the benefit of reservation be extended to matters of promotion, and the challenge to this decision in a Special Leave Petition (SLP) was rejected by the Supreme Court. |
| Union of India vs. National Confederation for Development of Disabled & Anr. [(2015) 13 SCC 643] | Supreme Court of India | The Court noted that the Special Leave Petition (SLP) against the Bombay High Court’s decision in *National Confederation for Development of Disabled and Anr. vs. Union of India and Ors.* was rejected by the Supreme Court. |
| Rajeev Kumar Gupta and Others vs. Union of India and Ors. [(2016) 13 SCC 153] | Supreme Court of India | The Court relied on this case to affirm that once a post is identified, it must be reserved for persons with disabilities, irrespective of the mode of recruitment. The Court also noted that a direction was issued to the Government to extend 3% reservation to PwD in all identified posts in Group A and Group B. |
| Siddaraju vs. State of Karnataka & Ors. [2020 3 SCALE 99] | Supreme Court of India | The Court referred to this case to affirm that reservation is applicable in promotions and distinguished the ratio of *Indra Sawhney’s case*. |
| Viklang Sang Haryana vs, State of Haryana [2011 SCC OnLine P&H 4266] | Punjab and Haryana High Court | The Court noted that the Punjab and Haryana High Court had held that the State of Haryana did not provide for reservation in promotion to PwD in Class III and IV posts. |
| Ravindra v. Union of India [2020 SCC OnLine Bom 771] | Bombay High Court | The Court referred to this case for the interpretation of the judgments of the Supreme Court in *Rajeev Kumar Gupta* and *Siddaraju*. |
| Poonam Manchanda vs. Union of India [2019 SCCOnline P&H 2710] | Punjab and Haryana High Court | The Court cited this case where the High Court granted relief to a petitioner with 70% disability, directing that she be considered for promotion under 3% reservation for PwD. |
| Kamla Chanyal vs. State of Uttarakhand [W.P. No. 126/2015 – judgment dated 29.11.2016] | Uttarakhand High Court | The Court referred to this case where the Uttarakhand High Court quashed an OM that ruled out reservation for PwD in Group A and B posts, directing the Government to consider the issue of reservation for the petitioner. |
| Vikash Kumar vs. Union Public Service Commission [2021 (2) SCALE 468] | Supreme Court of India | The Court referred to this case to highlight the expansive interpretation given to Section 20 read with Section 2(y) of the 2016 Act, emphasizing non-discrimination in employment and the concept of “reasonable accommodation.” |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Court’s Treatment |
|---|---|
| The State argued that Sections 32 and 33 of the 1995 Act mandate reservation only for initial appointments and do not extend to promotions. | The Court rejected this argument, stating that Sections 32 and 33 must be read with Section 47 to ensure equal opportunities, including promotions. |
| The State contended that the respondent was appointed on compassionate grounds, not through the regular recruitment process under the 1995 Act, and therefore, she could not claim reservation in promotions. | The Court rejected this argument, stating that the mode of entry into service should not be a ground to deny promotion. Once appointed, the respondent should be treated equally with other PwD candidates. |
| The State submitted that government orders provided 3-4% reservation only for appointments, not promotions. | The Court held that the absence of specific rules for reservation in promotion should not defeat the rights of PwD to a reservation in promotion, as it flows from the legislation. |
| The Amicus Curiae argued that Sections 32 and 33 of the 1995 Act must be interpreted in conjunction with Section 47, which provides for equal opportunities, including promotions for persons with disabilities. | The Court accepted this argument, emphasizing that denying promotions to persons with disabilities would negate the legislative intent and result in stagnation. |
| The Amicus Curiae contended that reservation should be computed based on the total number of vacancies in the cadre strength, without distinguishing between direct recruitment and promotion. | The Court accepted this argument, stating that the total number of vacancies in the cadre strength would include vacancies to be filled by nomination as well as by promotion. |
| The Amicus Curiae argued that reservation could be granted if the rules provide for promotion from the feeder cadre and posts are identified in the promotional cadre that can be filled by persons with disabilities. | The Court accepted this argument, stating that the requirement under Section 32 of the 1995 Act has to be completed for identifying the posts in the promotional cadre. |
| The Amicus Curiae submitted that the absence of rules for reservation in promotion should not defeat the rights of persons with disabilities, as the right flows from the legislation. | The Court accepted this argument, stating that the absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion. |
| The Amicus Curiae argued that the respondent should be considered for promotion in the PwD quota, irrespective of her mode of entry into service. | The Court accepted this argument, stating that the source of recruitment should not make any difference and what is material is that the employee is a PwD at the time for consideration for promotion. |
How each authority was viewed by the Court?
The Court relied on several authorities to support its reasoning:
- Government of India & Anr. vs. Ravi Prakash Gupta & Anr. [(2010) 7 SCC 626]*: The Court used this case to emphasize that reservation must be calculated based on the total number of vacancies in the cadre, irrespective of whether the post is filled by direct recruitment or promotion.
- Union of India vs. National Federation of the Blind [(2013) 10 SCC 772]*: This case was used to reiterate that reservation should be calculated based on the total number of vacancies in the cadre strength, without distinguishing between direct recruitment and promotion.
- National Confederation for Development of Disabled and Anr. vs. Union of India and Ors. [2015 SCC OnLine Bom 5112]*: The Court noted that the Bombay High Court had directed that the benefit of reservation be extended to matters of promotion, and the challenge to this decision in a Special Leave Petition (SLP) was rejected by the Supreme Court in Union of India vs. National Confederation for Development of Disabled & Anr. [(2015) 13 SCC 643].
- Rajeev Kumar Gupta and Others vs. Union of India and Ors. [(2016) 13 SCC 153]*: The Court relied on this case to affirm that once a post is identified, it must be reserved for persons with disabilities, irrespective of the mode of recruitment.
- Siddaraju vs. State of Karnataka & Ors. [2020 3 SCALE 99]*: The Court referred to this case to affirm that reservation is applicable in promotions and distinguished the ratio of Indra Sawhney’s case.
- Viklang Sang Haryana vs, State of Haryana [2011 SCC OnLine P&H 4266]*: The Court noted that the Punjab and Haryana High Court had held that the State of Haryana did not provide for reservation in promotion to PwD in Class III and IV posts.
- Ravindra v. Union of India [2020 SCC OnLine Bom 771]*: The Court referred to this case for the interpretation of the judgments of the Supreme Court in Rajeev Kumar Gupta and Siddaraju.
- Poonam Manchanda vs. Union of India [2019 SCCOnline P&H 2710]*: The Court cited this case where the High Court granted relief to a petitioner with 70% disability, directing that she be considered for promotion under 3% reservation for PwD.
- Kamla Chanyal vs. State of Uttarakhand [W.P. No. 126/2015 – judgment dated 29.11.2016]*: The Court referred to this case where the Uttarakhand High Court quashed an OM that ruled out reservation for PwD in Group A and B posts, directing the Government to consider the issue of reservation for the petitioner.
- Vikash Kumar vs. Union Public Service Commission [2021 (2) SCALE 468]*: The Court referred to this case to highlight the expansive interpretation given to Section 20 read with Section 2(y) of the 2016 Act, emphasizing non-discrimination in employment and the concept of “reasonable accommodation.”
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the need to ensure equal opportunities and prevent discrimination against persons with disabilities. The Court emphasized that the legislative intent behind the 1995 Act was to provide a level playing field for PwD, which includes career progression through promotions. The Court also considered the following points:
- The legislative mandate of the 1995 Act, which aims to provide equal opportunities for career progression, including promotions, for persons with disabilities.
- The need to prevent stagnation of PwD in their careers, which would result from denying them promotions.
- The principle that reservation should be calculated based on the total number of vacancies in the cadre strength, without distinguishing between direct recruitment and promotion.
- The interpretation of Section 32 of the 1995 Act, which mandates the identification of posts for reservation, should not be used to frustrate the benefits of reservation under Section 33.
- The mode of entry into service should not be a ground to deny promotion to a PwD.
- The concept of “reasonable accommodation” as an aspect to be provided by the Government establishments to ensure that the PwD enjoy or exercise their rights equally with others.
| Reason | Percentage |
|---|---|
| Legislative intent of equal opportunity | 30% |
| Prevention of stagnation of PwD | 25% |
| Interpretation of reservation calculation | 20% |
| Section 32 not to frustrate Section 33 | 15% |
| Mode of entry not a ground for denial of promotion | 10% |
Fact:Law
| Category | Percentage |
|---|---|
| Fact | 30% |
| Law | 70% |
Logical Reasoning:
The Court considered alternative interpretations but rejected them, stating that denying promotions based on the mode of entry or lack of specific rules would defeat the purpose of the 1995 Act. The Court emphasized that the 1995 Act does not distinguish between persons who entered service on account of disability and those who acquired it later. The Court also noted that the same position would be with a person who may have entered service on a claim of a compassionate appointment.
The Court’s decision was to uphold the High Court’s order, which directed the State to consider the respondent for promotion based on her disability. The Court also directed the State of Kerala to implement the judgments in *Rajeev Kumar Gupta’s* and *Siddaraju’s* cases by providing for reservation in promotion in all posts after identifying said posts within three months.
The Court quoted the following from the judgment:
- “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.”
- “Once the post is identified, it must be reserved for PwD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”
- “The mode of entry in service cannot be a ground to make out a case of discriminatory promotion.”
There was no minority opinion in this case. The judgment was authored by Justice Sanjay Kishan Kaul.
Key Takeaways
- Persons with disabilities are entitled to reservation in promotions, not just initial appointments.
- The mode of entry into service (e.g., compassionate appointment) does not disqualify a person with a disability from claiming reservation in promotions.
- The government must identify posts in all cadres, including promotional cadres, that can be reserved for persons with disabilities.
- The absence of specific rules for reservation in promotion cannot be used to deny the rights of persons with disabilities.
- The State of Kerala was directed to implement the judgments in *Rajeev Kumar Gupta’s* and *Siddaraju’s* cases and provide for reservation in promotion in all posts within three months.
Directions
The Supreme Court directed the State of Kerala to implement the judgments in *Rajeev Kumar Gupta’s* and *Siddaraju’s* cases and provide for reservation in promotion in all posts after identifying said posts. This exercise was to be completed within a period of three months.
Development of Law
The ratio decidendi of this case is that persons with disabilities are entitled to reservation in promotions, irrespective of their mode of entry into service. This judgment clarifies and reinforces the rights of persons with disabilities to equal opportunities in career progression. It also clarifies that the absence of specific rules for reservation in promotion cannot be used to deny the rights of persons with disabilities. This case reinforces the position of law as laid down in the cases of *Rajeev Kumar Gupta* and *Siddaraju*.
Conclusion
The Supreme Court’s judgment in *State of Kerala & Ors. vs. Leesamma Joseph* is a significant step towards ensuring equal opportunities for persons with disabilities. The Court has unequivocally held that reservation benefits extend to promotions, not just initial appointments, and that the mode of entry into service does not matter. This decision reinforces the legislative intent of the 1995 Act and the 2016 Act, which aim to provide a level playing field for persons with disabilities. The directions given to the State of Kerala to implement the judgments in *Rajeev Kumar Gupta’s* and *Siddaraju’s* cases within three months is a much needed step to ensure that the rights of persons with disabilities are not frustrated.