New
Delhi:
The Supreme Court has reiterated that persons with disabilities (PwD) cannot be
denied reservation in promotions in government jobs as it upheld a Kerala High
Court order granting the benefit to a woman last year.
The
top court said that identification of posts for the purpose of reservation had
to take place immediately after the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 but a
resistance to this is obvious from the “delaying tactics” adopted by most of
the government authorities in truly implementing the intent.
It
said that sometimes it is easier to bring a legislation into force but far more
difficult to change the social mindset which would seek to defeat the intent of
the law.
A
bench of Justices Sanjay Kishan Kaul and R Subhash Reddy upheld the Kerala High
Court order of March 9, 2020, by which it had held reservation in promotion to
a woman with disability.
The
SC bench said, “We are of the view that the course of action followed by the
High Court in the impugned order is salutary and does not call for any
interference.”
The
top court said that what seems to emerge from the case is that Kerala has not
implemented the SC judgments in the Rajeev Kumar Gupta and others versus the
Union of India case (2016), and in the Siddaraju versus State of Karnataka case
(2020), in which it was held that reservation to PwD would be applicable even
in promotion in government jobs.
The
bench said, “Thus, we consider it appropriate to issue directions to the State
of Kerala to implement these judgments and provide for reservation in promotion
in all posts after identifying said posts. This exercise should be completed
within a period of three months”.
It
said, “We are making it time bound so that the mandate of the Act (The Persons
with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995) is not again frustrated by making Section 32 as an
excuse for not having identified the post.”
The
top court noted that the Rights of Persons with Disabilities Act of 2016 has
now taken care of how to deal with the aspect of reservation in promotion.
It
dealt with the question of whether reservation under provisions of the 1995 Act
is dependent upon identification of posts as stipulated by the law.
The
top court said that there can be little doubt that it was never the intention
of the legislature that the provisions of the Act would be used as a tool to
frustrate the benefits of reservation under the 1995 law.
“In
fact, identification of posts for purposes of reservation had to take place
immediately after the 1995 Act. A resistance to such reservation is obvious from
the delaying tactics adopted by most of the government authorities in truly
implementing the intent. It thus shows that sometimes it is easier to bring
legislation into force but far more difficult to change the social mind set
which would endeavour to find ways and means to defeat the intent of the Act
enacted and Section 32 was a classic example of the same”, the bench said.
The
top court had appointed senior advocate Gaurav Agrawal as amicus curiae to
assist it in the matter and framed four questions including whether the 1995
law mandates reservations in promotions for persons with disabilities?
It
said, “The legislative mandate has to be understood in the context 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”.
It
said that, thus, the total number of vacancies in the cadre strength would
include the vacancies to be filled in by nomination as well as by promotion and
“in our view, the aforesaid should put at rest the controversy insofar as the
mandate of 1995 Act qua promotion is concerned”.
It
said that in its earlier verdicts, the SC had mandated the identification of
posts for purposes of reservation and a PwD has to be considered for promotion
along with other persons working in the feeder cadre.
It
said that there cannot be any methodology used to defeat the reservation in
promotion and once that post is identified, the logical conclusion would be
that it would be reserved for PwD who have been promoted.
The
top court said that the 1995 Act does not make a distinction between a person
who may have entered service on account of disability and one who may have
acquired disability after having entered the service.
“Similarly,
the same position would be with the person who may have entered service on a
claim of a compassionate appointment. The mode of entry in service cannot be a
ground to make out a case of discriminatory promotion,” it said.
The
top court had noted that the woman 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.
The
woman has claimed that she was entitled to promotion as a Senior Clerk with
effect from July 1, 2002 with all consequential benefits and as a cashier with
effect from May 20, 2012 with all consequential benefits and thereafter as
Junior Superintendent with effect from the date of her entitlement.
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