On 28 June 2021, the Supreme Court of India has upheld an order of the Kerala High Court and said that persons with disabilities must get reservation in promotions as well. It is noteworthy that the persons with disabilities get 4% reservation in government vacancies. The top court’s order came in the case of Kerala government versus a woman state employee. The government was denying the woman reservation in promotion on the ground that she was not recruited under the reservation quota for the disabled. The Supreme Court said that mode of recruitment is no bar in providing reservation in promotion during the career of the employee.
Top court’s bench of Justices Sanjay Kishan Kaul and R Subhash Reddy 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 Supreme Court also observed that its orders in the cases of the Rajeev Kumar Gupta and others versus the Union of India case (2016), and in the Siddaraju versus State of Karnataka case (2020) have not been implemented by the Kerala government. In these cases also the court had gave a decision in favor of reservation in promotion for PwDs.
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 woman in this was employed as a typist in the police department in 1996 by the Kerala government. The appointment was made on compassionate basis after the death of her brother during the service. At that time, the woman’s appointment was made in general category and not under the reserved quota for PwD. Now the Kerala government’s argument was that because the appointment was not under PwD category, the woman is not entitled for any reservation in promotion. The top court was not impressed with the government’s argument and decided in favor of the woman.
“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 and in our view, this is the basis of the mandate of this court in Rajeev Kumar Gupta’s and Siddaraju’s cases,” the bench said.
The woman is affected with Post-Polio Residual Paralysis (PPRP) and she claimed that she was entitled to promotion as a Senior Clerk with effect from 01 July 2002 with all consequential benefits and as a Cashier with effect from 20 May 2012 with all consequential benefits and thereafter as Junior Superintendent with effect from the date of her entitlement.
The top court said that the Persons with Disabilities Act 1995 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.
The Persons with Disabilities Act 1995 has now been replaced by the Rights of Persons with Disabilities Act 2016.
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