Shoyab K.A vs State Of Kerala on 6 October, 2025

[Cites 37, Cited by 0]

Kerala High Court

Shoyab K.A vs State Of Kerala on 6 October, 2025

These writ appeals are filed under Section 5(i) of the Kerala High Court Act, 1958, by the respective petitioners in W.P.(C)No.15097 of 2024, W.P.(C)No.13766 of 2024, and W.P.(C)No.39733 of 2023. W.P.(C)Nos.15097 of 2024 and 13766 of 2024 are dismissed by the learned Single Judge by way of a common judgment dated 20.12.2024. W.P.(C)No.39733 of 2023 is also dismissed by the learned Single Judge as per the judgment dated 05.02.2025 in the light of the judgment in W.P.(C)Nos.15097 of 2024 and 13766 of 2024, since the issue involved in W.P.(C)No.39733 of 2023 is the same, as that was considered in W.P.(C)No.15097 of 2024 and W.P.(C)No.13766 of 2024. The parties and documents are referred in this judgment as they are referred in W.A.No.173 of 2025 and in the corresponding writ petition, unless otherwise stated.

2. The appellants/writ petitioners in W.A.No.173 of 2025 are Section Officers in Mahatma Gandhi University ('M.G.University' in short), who entered service as Lab Assistants. The appellants/writ petitioners in W.A.No.209 of 2025 entered service as Assistants in that University, and were later promoted WA NOs.173, 209 & 382 OF 2025 9 2025:KER:73015 as Section Officers. All of them are persons suffering from benchmark disability of more than 40%. They filed writ petitions, being aggrieved by the rejection of their request for further promotion in the quota earmarked for differently abled candidates. Similarly, the appellant/writ petitioner in W.A.No.382 of 2025 is a person appointed as Assistant (Grade II) in Kannur University and was later promoted as Section Officer. He also approached this Court with the writ petition for the very same cause as that of the appellants in the other two writ appeals. Since the point to be considered and decided in these appeals is the same, they are heard together and are being disposed of by this common judgment.

W.A.No.173 of 2025

3. It is pleaded in the writ petition filed by the appellants/writ petitioners herein that the 1st appellant joined the service of MG University as a Lab Assistant in the year 1996, and the 2nd appellant joined the service as Assistant (Grade II), in the same University in the year 2009. The 1st appellant is 50% visually impaired, and the 2nd appellant is suffering from 40% locomotor disability. By promotion in the usual course, both of them have been posted as Section Officers. The appellants contend that by WA NOs.173, 209 & 382 OF 2025 10 2025:KER:73015 Ext.P4 Government order dated 18.11.2018 issued by the 3rd respondent, 4% reservation as per the provisions of the Rights of Persons with Disabilities Act, 2016 (the '2016 Act' in short), and 3% reservation as per the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the '1995 Act' in short), in aided Schools and aided Colleges including professional colleges was provided. By Ext.P5 notification dated 04.01.2021, the Ministry of Social Justice and Empowerment under the Central Government also issued Gazette Notification notifying the gist of the report of the expert committee constituted under Sections 32 and 33 of the 1995 Act. Note 4 of Ext.P5 notification states that if a post is identified in the feeder grade, all the posts in the promotional grade should also be stand identified. The 2nd respondent Secretary to the Government issued Ext.P6 notification dated 15.02.2021, directing the Registrar of various Universities to take immediate steps to amend their statutes by incorporating the provisions to provide reservation for persons with disabilities in the appointments. While so, the Government of India in the Department of Personnel and Training issued Ext.P7 Office Memorandum dated 17.05.2022, stipulating instructions for the grant of reservation in promotion to persons WA NOs.173, 209 & 382 OF 2025 11 2025:KER:73015 with benchmark disabilities in the posts and services of the Central Government. The 2nd respondent also issued Ext.P8 notification dated 18.05.2022 approving the guidelines for appointment of differently abled persons in Private Aided Colleges and Government Arts and Science Colleges/Aided Training Colleges/Aided Arabic Colleges, Aided Engineering Colleges, Aided Polytechnic Colleges. Further instructions were also issued by the 2nd respondent as per Ext.P9 notification dated 05.06.2022 to the effect that in all appointments made after 18.05.2022, strict observance shall be made to the guidelines issued as per Exts.P6 and P8 orders. The 4th respondent University issued Ext.P10 order dated 24.06.2022, deciding to implement the directions contained in Ext.P8 Government order. Thereafter, in the light of Ext.P7 Office Memorandum, the 3rd respondent also issued Ext.P11 order dated 15.07.2022 providing for reservation in promotion to employees who are persons with disabilities. Subsequently, the P&ARD (Rules) Department issued Ext.P12 Circular dated 23.09.2022 directing all administrative departments to amend the concerned special rules immediately, in order to ensure that 4% reservation is granted in tune with the guidelines contained in Ext.P11 Government order.

WA NOs.173, 209 & 382 OF 2025 12 2025:KER:73015 3.1. The appellants allege that in utter violation of the above Government orders, the 4th respondent issued orders making promotion to various higher posts like Assistant Registrar, Deputy Registrar, Joint Registrar, etc., without complying with the mandatory provisions contained in Sections 33 and 34 of the 2016 Act. Later, the 4th respondent issued Ext.P13 order dated 10.02.2023, implementing Exts.P11 and P12 orders in the matter of reservation for appointment as well as for promotion. Therefore, the appellants submitted Exts.P14 and P15 representations dated 12.07.2023 and 31.07.2023 before the 5th respondent Registrar of the University seeking promotion in all eligible higher posts. Since their claim was not favourably considered, the appellants filed W.P.(C)No.27008 of 2023 before this Court seeking a direction to the respondents to grant all due promotions in the vacancies determined as per the 1995 Act and 2016 Act. The said writ petition was disposed of by Ext.P16 judgment dated 19.09.2023, directing respondents 4 and 5 to consider and pass orders on the representations filed by the appellants with due regard to the directions contained in Jomy Joseph & Others v. State of Kerala & Others [2022 (2) KLT 833].


     3.2. While    so,   the    3rd        respondent   issued   Ext.P17
 WA NOs.173, 209 & 382 OF 2025    13               2025:KER:73015

Government order dated 26.10.2023 giving additional guidelines to the directives issued in Ext.P11 Government order. As per paragraph 5.1 of the said Government order, all HODs shall ensure 4% reservation for the Persons with Benchmark Disabilities ('PwBD' in short) in those posts where appointments are done through both direct recruitment and by promotion (from feeder category) and identified as suitable. Para 5.3.i of the said GO further states that reservation in promotion shall be done for PwBD in posts where appointments are made both through direct recruitment and by promotion. With regard to the implementation of 4% reservation under 100 point roster, instead of applying reservation to points 1,26,51 and 76 as ordered in Exhibit P7 OM, as per para 5.4.i of Exhibit P17 GO, the cycle of points has been changed to 6,31,56 and 81, which is illegal and impermissible. Going by the scheme of Exhibit P17 GO, reservations in promotions need to be made only if a promotion post is to be filled both by direct recruitment and by promotion. It appears, this proposition has been prompted from Clause 8(ii) of Exhibit P11 GO dated 17.05.2022, wherein it is stated that Persons with Disabilities shall be given promotion in those posts, where appointments to the post are not only by direct recruitment but WA NOs.173, 209 & 382 OF 2025 14 2025:KER:73015 also by promotion (from the feeder category).

3.3. The appellants further plead that in fact, the scope of Clause 8(ii) of Exhibit P11 GO dated 15.07.2022 was already considered by a Division Bench of this Court in OP(KAT) No. 312 of 2023 wherein, by Ext.P18 judgment it was held that when the sole method of appointment is by promotion, then there is no question of denying the claim for lateral reservation in promotion, unless on the ground of non-suitability of differently abled candidates to hold such promotion post. It is also now the settled approach that, where the feeder category of the post in the promotion line is already identified as suitable for lateral reservation in the differently abled quota, then separate identification in the promotion post may not be required. The said judgment was also affirmed by the Apex Court in SLP(C) Diary No.7352/2024 dated 23.02.2024.

3.4. The appellants state that instead of complying with the directions contained in Ext.P16 judgment, the 4th respondent issued Ext.P19 order dated 24.11.2023, seeking clarification from the Government whether reservation needs to be made in promotion posts where direct recruitment is not a method of appointment as specified in Ext.P17 Government order. The WA NOs.173, 209 & 382 OF 2025 15 2025:KER:73015 appellants, thereafter, filed Contempt Case (C)No.2772 of 2023 alleging non-compliance of the directions contained in Ext.P16 judgment.

3.5. The 2nd respondent, as per Ext.P20 letter dated 15.01.2024, informed the 5th respondent that reservation in promotions has to be made as per the guidelines given by the Government in Ext.P11 Government order. Based on the said clarification, the 4th respondent issued Ext.P21 order dated 01.02.2024 stating that the claim raised by the appellants is against the directions in Ext. P17 Government order. However, this Court, as per Ext.P22 order dated 19.02.2024 in the Contempt Case, set aside Ext.P21 order and directed the 4th respondent to reconsider the representations of the appellants.

3.6. The 3rd respondent, in the meanwhile, issued Ext.P23 order dated 01.02.2024 providing additional guidelines to Ext.P17 order. In paragraph 1 of that Government order, it is again reiterated that 4% of the reservation shall be made only to posts wherein appointments are made by both direct recruitment and promotion (from feeder category). Again, the implementation of 4% reservation under the 100-point roster system was stated to be made against points 6,31,56,81, etc. It is further held in WA NOs.173, 209 & 382 OF 2025 16 2025:KER:73015 Ext.P23 that whenever vacancies are not available to be filled up by giving promotions to disabled candidates, supernumerary posts shall be created for giving promotions to them.

3.7. Purporting to be in compliance of Ext.P22 order of this Court, the 4th respondent issued Ext.P24 order dated 06.03.2024, rejecting the claim for reservations in promotions to higher posts based on Ext.P17 Government order and Ext.P20 Government Letter. Based on Ext.P24, the Contempt Case was closed by Ext.P25 judgment dated 18.03.2024. Hence, the appellants filed the writ petition seeking the following reliefs:

"(1) To call for the records leading to Exhibits P20 and P24 and quash the same by the issuance of a Writ of Certiorari;

(ii) To call for the records leading to para 5 in Exhibits P17 and paras 1 and 4 in Exhibit P23 and quash the same to the extent it goes against Exhibit P7 OM and Exhibit P18 judgment, by the issuance of a Writ of Certiorari;

(iii) To declare that the refusal on the part of the 4 th respondent to implement the reservation in promotion to Differently Abled employees to higher posts is against Sections 33 & 34 of the Rights of Persons with Disabilities Act, 2016, various Judgments of Hon'ble Supreme Court and High Court of Kerala and also the OMs and Government orders issued in this behalf;

(iv) To direct the respondents to grant promotions to the petitioners to the posts of Joint Registrar and Deputy Registrar respectively with retrospective effect in accordance with the provisions contained in Section 33 and 34 of Right of Persons with Disabilities Act, 2016."

WA NOs.173, 209 & 382 OF 2025 17 2025:KER:73015 3.8. In W.P.(C)No.15097 of 2024, the Special Government Pleader filed a memo dated 17.07.2024 adopting the counter affidavit filed by the 3rd respondent in W.P.(C)No.13766 of 2024 dated 11.07.2024. Subsequently, the 3rd respondent has filed a counter affidavit dated 30.07.2024 in W.P.(C)No,15097 of 2024 opposing the relief sought in the writ petition, raising the very same contentions that were raised in the counter affidavit filed in W.P.(C)No.13766 of 2024. Paragraphs 3 to 11 of that counter affidavit read thus:

"3. It is submitted that in compliance with the provisions under Section 33 of the RPwD Act, 2016 Government of Kerala constituted the Expert committee as per G.O. (P) No.8/2018/SJD dated 19.06.2018 with the Secretary of Social Justice as the Chairman and the Director of Social Justice as the Convenor. After the constitution of this committee Government had identified almost around 1264 entry cadre posts in various Government Departments as suitable for Persons with Benchmark Disability (PwBD) appointments.

4. It is submitted that, in order to implement 4% reservation for Persons with Benchmark Disabilities as per the RPwD Act 2016, Govt of Kerala vide G.O. (P) No. 12/2019 SJD dated 31/10/2019 have issued an order in which the reservation for Persons with Benchmark Disabilities has been enhanced from 3% to 4% by providing the turns of 1, 26, 51 and 76 in 100 point roster for appointment. The Govt of Kerala also had issued GO(P) No. 18/2018/SJD dated 18/11/2018 by providing 4% reservation as per the provisions of the RPwD Act, 2016 and ensuring 3% WA NOs.173, 209 & 382 OF 2025 18 2025:KER:73015 reservation as per the provisions of PwD Act 1995 in aided schools and aided colleges including professional colleges. As per this order, it is the responsibility of the Administrative Department concerned to provide instructions to all appointing authorities to implement the RPwD reservation in appointments. Subsequently Department of Higher Education had issued GO(Ms) No. 96/2021/HEDN dated 15/02/2021, by providing necessary instructions to implement PwBD reservation in private aided colleges. In addition to the above mentioned Government order, Department of Higher Education had also issued GO(Ms) No. 242/2022/HEDN, dated 18/05/2022 by incorporating additional guidelines for the implementation PwBD reservation. Detailed instructions or guidelines regarding the backlog vacancy calculation, modalities to be followed in the implementation of reservation in appointment etc were included in it. Govt had also issued GO(Ms) No. 279/2022/HEDN dated. 05/06/2022 to the effect that in all appointments made after 18/05/2022 strict observance shall be made to the guidelines issued earlier.

5. It is submitted that the First Proviso to Section 34(1) of the RPwD Act, 2016 states that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. The said Proviso made an obligation on the State Government to take a policy decision in the matter of reservation in promotion for PwD employees. Accordingly, the Government issued GO(P) No. 5/2022/SJD dated 15.07.2022 and as per the said Government order the Government took a policy decision that the Persons with Benchmark Disabilities shall be provided reservation in promotion in those posts where the appointment to the post is not only by direct recruitment but also by promotion (from Feeder category). Subsequently the Government issued GO(P) No. 6/2023/SJD dated 26.10.2023 containing additional WA NOs.173, 209 & 382 OF 2025 19 2025:KER:73015 guidelines for implementing reservation in promotion to Persons with Disabilities. As per the said Government order the earlier Government order dated 15.07.2022 was modified to the extent that the reservation in promotion shall be done for Persons with Benchmark Disabilities in posts where appointments are done both through direct recruitment and by promotion.

6. It is submitted that at the time of passing the Judgment in OP(KAT) No. 312/2021 by the Division Bench of this Hon'ble Court GO(P) No. 6/2023/SJD dated 26.10.2023 was not in existence. The Division Bench delivered the judgment dated 08.08.2023 considering the earlier Government order GO(P) No. 5/2022/SJD dated 15.07.2022 which was in force at the relevant time. Without quashing the said Government order dated 15.7.2022 the Division Bench held that the petitioner therein was entitled to lateral reservation on the basis of the said Government order itself.

7. It is submitted that in terms of Section 20(3) of the RPwDs Act, 2016 no promotion shall be denied to a person merely on the ground of disability. Further in terms of Section 20(4) of the Act, no Government establishment shall dispense with or reduce in rank an employee who acquires disability during his or her service. As per the Proviso to this Sub Section, if an employee, after acquiring disability is not found suitable for the post he is holding, he shall be shifted to some other post with the same pay scale and the service benefits. This Section further provides 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 which ever is earlier. The said provisions under Section 20 of the RPwDs Act, 2016 are incorporated in GO(P) No.6/2023/SJD dated 26.10.2023. This Government order further clarifies that in case the PwBDs for whom the supernumerary post was created is WA NOs.173, 209 & 382 OF 2025 20 2025:KER:73015 eligible for next promotion to higher pay level and it is not possible to adjust the employee against any post, afresh creation of supernumerary posts in the next higher level will be required by surrendering the previously created supernumerary post at the lower level.

8. It is submitted that, the eligibility of getting benefit of reservation for Persons with Benchmark Disabilities in promotion shall be determined by the guidelines contained in GO(P) No. 6/2023/SJD dated 26.10.2023 which has been issued in exercise of powers laid down by the Proviso to Section 34 of the RPwDs Act, 2016. As per the said Proviso the State Government is well competent and it is the prerogative of the State Government concerned to issue such appropriate instructions with regard to the PwBD reservation in promotion. It is submitted that the State Government can issue such instructions only by taking into account the circumstances prevailing in the promotional avenues of the Government Service of the State.

9. It is submitted that Section 20(3) ensures that no promotion shall be denied to a person merely on the ground of disability. Hence, it is clear that every person with disability in Government establishment is eligible for promotion in normal method. But eligibility for getting reservation in promotion is determined by the conditions stipulated in GO(P) No. 6/2023/SJD dated 26.10.2023.

10. It is submitted that, in the office Memorandum (No. 36012/1/2020- dated 17/05/2022 issued by the Central Ministry, the turns fixed for reservation of Persons with Disabilities are 1, 26, 51, and 86 and this is applicable for reservation in promotion for central govt employees. But in the case of State Government employees, detailed guidelines were provided as per the provisions in the proviso of Section 34(1) of the Act. It is submitted that, as per the order GO(P) No. 6/2023/SJD dated WA NOs.173, 209 & 382 OF 2025 21 2025:KER:73015 26/10/2023, the turns fixed for reservation in promotion are 6, 31, 56 and 81.

11. State Government is competent to issue GO(P) No. 6/2023/SJD dated 26.10.2023 in view of the provisions of RPwD Act, 2016 and hence same are sustainable in law. 4th respondent University is bound to act strictly in accordance with the said Government order."

3.9. Along with I.A.No.8 of 2024, the appellants/petitioners have produced Exts.P26 to P29 documents in the writ petition. W.A.No.209 of 2025

4. The 1st appellant in this writ appeal is a person with 80% of the permanent disability in relation to her right upper limb, and the 2nd appellant has 40% locomotor disability in his right leg. The 1st appellant was appointed on 13.10.2006 on compassionate grounds and by promotion, she was appointed as Section Officer on 01.06.2019 and as Section Officer (Higher Grade) on 01.04.2022. The 2nd appellant joined service under the PH Quota on 23.01.2010 and, by the usual course, was promoted as Section Officer on 01.06.2022. In the writ petition, they have also raised the very same contentions as that of the contentions raised by the appellants in W.A.No.173 of 2025 and sought the undermentioned reliefs under Article 226 of the Constitution of India:

"(i) To call for the records leading to Exhibits P18 and P22 and quash the same by the issuance of a Writ of Certiorari;

WA NOs.173, 209 & 382 OF 2025 22 2025:KER:73015

(ii) To call for the records leading to para 5 in Exhibits P15 and paras 1 and 4 in Exhibit P21 and quash the same to the extent it goes against Exhibit P6 Office Memorandum and Exhibit P16 judgment, by the issuance of a Writ of Certiorari;

(iii) To declare that the refusal on the part of the 4 th respondent to implement the reservation in promotion to Differently Abled employees to higher posts is against Sections 33 & 34 of the Rights of Persons with Disabilities Act, 2016, various Judgments of Hon'ble Supreme Court and High Court of Kerala and also the Office Memorandums and Government orders issued in this behalf;

(iv) To direct the respondents to grant promotions to the petitioners to the posts of Joint Registrar and Deputy Registrar respectively with retrospective effect in accordance with the provisions contained in Section 33 and 34 of Right of Persons with Disabilities Act, 2016."

4.1. The 3rd respondent filed a counter-affidavit dated 30.07.2024 in the writ petition, opposing the reliefs sought therein, which was adopted in W.P.(C)No.15097 of 2024, as stated above. The contentions of the 3rd respondent in that counter affidavit are the same as those stated in the counter affidavit filed in W.P.(C)No.15097 of 2024. The 4th respondent also filed a counter affidavit dated 25.07.2024 in W.P.(C)No.13766 of 2024, inter alia raising the contentions similar to that of the contentions raised in the counter affidavit filed by the 3rd respondent. To the counter affidavit filed by the 3rd respondent, the WA NOs.173, 209 & 382 OF 2025 23 2025:KER:73015 appellants/petitioners filed a reply affidavit dated 16.07.2024. W.A.No.382 of 2025

5. The appellant/petitioner in this writ appeal pleads that he is a person with 75% of bench mark disability and included in Clause (a) [Blindness, Low vision] of Sub Section 1 of Section 34 of The Rights of Persons with Disabilities Act, 2016. He was appointed as Assistant Grade II in Kannur University service in the year 2005. He was promoted as Section Officer in the year 2018 and was later provided with Higher Grade. Raising the very same contentions as that of the appellants in the remaining two writ appeals, the appellant filed W.P.(C)No.39733 of 2023 seeking the following reliefs:

"I. Issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents 1 to 4 to promote the Petitioner to the post of Deputy Registrar as per the additional guide line/Criteria mentioned as Entry No. 4 (m) for promotion to multiple higher post, considering his reservation for promotion for persons with bench mark disability in the 4% quota of the Cadre Strength of Deputy Registrar in the existing or ensuing vacancies as per the Rights of Persons with Disabilities Act, 2016. II. Issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents 1 to 4 to promote the Petitioner to the post of Assistant Registrar, considering his reservation for promotion for persons with bench mark disability in the 4% quota of the Cadre Strength of Assistant Registrar in WA NOs.173, 209 & 382 OF 2025 24 2025:KER:73015 the existing or ensuing vacancies as per the Rights of Persons with Disabilities Act 2016.

III. Issue a writ of mandamus or any other appropriate writ or order or direction, directing the Respondents to include the name of the Petitioner in the Select List, which is being prepared and approved by the Promotion committee for considering the promotion to the post of Assistant Registrar, Deputy Registrar etc. and for filling up of 4% quota of the persons with bench mark disability under PwD Act-2016.

IV. Issue appropriate writ or order or direction to respondents to consider and pass orders on Exhibit P4 and Exhibit P6 representation given by the Petitioner by promoting the Petitioner to the post of Deputy Registrar/Assistant Registrar in the existing or ensuring vacancies by considering his reservation and 4% quota for promotion for persons with bench mark disabilities."

5.1. The 1st respondent filed a counter affidavit dated 02.04.2024 opposing the reliefs sought in the writ petition. Similarly, the Standing Counsel for the 3rd and 4th respondents filed a statement dated 09.04.2024 in the writ petition, taking a similar stand as that taken in the remaining two writ petitions. To that statement, the appellant/petitioner filed a reply affidavit dated 25.01.2025, producing therewith Exts.P15 to P20 documents.

6. In the impugned judgment, considering the rival contentions of the parties, the learned Single Judge arrived at a finding that the reservation contemplated under Section 34 of the WA NOs.173, 209 & 382 OF 2025 25 2025:KER:73015 2016 Act, can only be against posts identified for reservation under Section 33 of that Act. As long as higher promotion posts of the appellants, such as Assistant Registrar/Deputy Registrar/Joint Registrar, are not identified by the University for appointment of the physically disabled candidates, the appellants do not have any legal right to claim promotion. Having found so, the learned Single Judge dismissed W.P.(C) Nos.15097 of 2024 as well as 13766 of 2024. Relying on that judgment, W.P.(C)No.39733 of 2023 was also dismissed by the learned Single Judge.

7. On 11.02.2025, when W.A.No.173 of 2025 came up for admission, after hearing preliminary arguments of the learned counsel for the appellants and also the learned Senior Counsel for Mahatma Gandhi University, this Court admitted the writ appeal. The learned Special Government Pleader, with the learned Additional Advocate General, took notice for respondents 1 to 3 and the learned Standing Counsel for M G University for respondents 4 to 6. Notice by special messenger was ordered to additional respondents 7 to 10, returnable by 25.02.2025. This Court further ordered that any promotions made to the posts of Joint Registrar and Deputy Registrar will be subject to the outcome of the writ appeal.

WA NOs.173, 209 & 382 OF 2025 26 2025:KER:73015

8. On 30.05.2025, when these writ appeals came up for consideration, the learned counsel for the appellants submitted that the 1st appellant in W.A.No.173 of 2025 will retire from service on 31.05.2025 from the post of Section Officer (Hr.Gr.). By the order dated 30.05.2025, this Court made it clear that the retirement of the 1st appellant on attaining the age of superannuation will not disentitle him to the appropriate benefits, in case his claim for promotion is upheld.

9. Heard the learned counsel for the appellants, the learned Special Government Pleader for the State and the learned Senior Counsel for Mahatma Gandhi University and the learned Standing Counsel for Kannur University.

10. The crux of the argument of the learned counsel for the appellants in W.A. No.209 of 2025 and in W.A. No.173 of 2025 is that for granting reservation in the promotion post, identification of the posts in the promotion post is unnecessary, since the post is identified in the feeder category. The learned counsel relied on the judgments of the Apex Court in Union of India v. National Federation of the Blind [(2013) 10 SCC 772], Rajeev Kumar Gupta and others v. Union of India and others [(2016) 13 SCC 153], Siddaraju v. State of Karnataka [2020 (1) KHC WA NOs.173, 209 & 382 OF 2025 27 2025:KER:73015 609], State of Kerala v. Leesamma Joseph [(2021) 9 SCC 208], Union of India v. Ravi Prakash Gupta [(2010) 7 SCC 626], and that of the judgment of this Court in OP(KAT) No.312 of 2023 [2023: KER:49935] in support of the contentions of the appellants.

11. The learned counsel for the appellant in W.A.No.382 of 2025 addressed arguments over and above the submissions of the learned counsel in the other two writ appeals that the State Government cannot make distribution among promotees and direct recruits of the benefit of reservation, against the Central statute. The learned counsel further submitted that there is no provision for direct recruitment to the promotion post claimed by the appellant herein. According to the learned counsel, the condition in clause 8(ii) of the Government order dated 15.07.2022 is creating a handicap when there is no provision for direct recruitment in Kannur University, and hence that provision is liable to be struck down.

12. On the other hand, the learned Senior Counsel appearing for the M G University as well as the Learned Standing Counsel appearing for the Kannur university argued that a combined reading of Sections 33 and 34 of the 2016 Act, makes WA NOs.173, 209 & 382 OF 2025 28 2025:KER:73015 it clear that identification of the posts is a prerequisite to grant reservation to the employees with benchmark disabilities, in the promotion post. In all the judgments relied on by the learned counsel for appellants, though the entitlement of the PwBDs to get reservation on promotion as provided under Section 34 of the 2016 Act is recognised, identification of posts is stated as one of the prerequisites. The learned Senior Counsel appearing for the M G University in support of his argument gave an example that a blind person cannot be appointed as a surgeon, and therefore, the suitability to discharge the duties in that promoted post has to be considered by the Government while identifying the post. According to the learned counsel, in Ext.P18 judgment of this Court in OP(KAT)No.312 of 2023, no final declaration of law was made by this Court, which can be relied on as a precedent. It is further argued by the learned counsel that interference in the judgment of the learned Single Judge is necessary only if the findings are perverse and illegal. In the instant cases, the learned Single Judge arrived at a right finding, and it cannot be said as perverse and hence no interference is warranted by this Court. The learned Special Government Pleader also supported the arguments of the learned counsel for the Universities.

WA NOs.173, 209 & 382 OF 2025 29 2025:KER:73015

13. We have carefully gone through the materials on record and the impugned judgments, in the light of the arguments addressed at the Bar. In order to appreciate contentions raised by the parties in it's right perspective, it is necessary to briefly go through the history of the 1995 Act and 2016 Act and also some of the relevant judicial pronouncements governing the field.

14. The 1995 Act was enacted by Parliament to give effect to the Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region. Several benefits are provided in that Act, including reservation in the case of education, employment, etc., to persons suffering from disabilities. As per Section 2(i) of that Act, seven types of disabilities are identified, such as blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation and mental illness. These disabilities are separately described in the sub-sections of Section 2 of the 1995 Act. As per Section 2(t) of the 1995 Act, the person with disability means a person suffering from not less than forty percent of any disability as certified by a Medical Authority.

15. Reservations in the case of employment are provided under Section 33 of the 1995 Act. As per Section 32, the WA NOs.173, 209 & 382 OF 2025 30 2025:KER:73015 identification of posts that can be reserved for persons with disability was made mandatory. Sections 32 and 33 of the 1995 Act, read thus:

"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 up-date the list taking into consideration the developments in technology.

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 or 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".

16. Parliament, realising the national need for the rights of persons with disabilities and commitment to the Convention of the United Nations General Assembly, repealed the 1995 Act, and WA NOs.173, 209 & 382 OF 2025 31 2025:KER:73015 brought in the 2016 Act, which was enacted to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.

17. Clause (r) of Section 2 of the 2016 Act defines the term 'person with benchmark disability' to mean a person with not less than forty per cent of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. As per Section 2(s), a person with disability means a person with long-term physical, mental, intellectual or sensory impairment, which interacting with barriers, hinders his full and effective participation in society equally with others.

18. Chapter VI of the 2016 Act deals with special provisions for persons with benchmark disabilities. Section 33 of the 2016 Act replaced Section 32 of the 1995 Act. As per Section 33 of the 2016 Act, the appropriate Government shall (i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34; (ii) WA NOs.173, 209 & 382 OF 2025 32 2025:KER:73015 constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

19. Section 34 of the 2016 Act, which replaced Section 33 of the 1995 Act, deals with reservation, which reads thus;

"34. Reservation.- (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e), namely-

(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the WA NOs.173, 209 & 382 OF 2025 33 2025:KER:73015 appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:

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

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

20. In Justice Sunanda Bhandare Foundation v. Union WA NOs.173, 209 & 382 OF 2025 34 2025:KER:73015 of India [(2017) 14 SCC 1], the Apex Court noticed that the Rights of Persons with Disabilities Act, 2016, visualises a sea change and conceives of actualisation of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and the responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. The immediacy of action is the warrant. After referring to certain provisions of the 2016 Act, to highlight the salient features of the Act, the Apex Court observed that more rights have been conferred on disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and State fund for differently abled persons have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to differently abled persons and the role of the States, local authorities, educational institutions and companies. The statute operates on a broad spectrum and the stress is laid to protect the rights of differently abled persons and WA NOs.173, 209 & 382 OF 2025 35 2025:KER:73015 provides punishment for their violation.

21. In Justice Sunanda Bhandare Foundation [(2017) 14 SCC 1], having regard to the change in core aspects, the Apex Court deem it apposite to direct all the States and the Union Territories to file compliance reports keeping in view the provisions of the 2016 Act within twelve weeks. In the said order, the Apex Court observed that the States and the Union Territories must realise that under the 2016 Act, their responsibilities have grown and they are required to actualise the purpose of the Act, for there is an accent on many a sphere with regard to the rights of those with disabilities. When the law is so concerned for disabled persons and makes provision, it is the obligation of the law-executing authorities to give effect to the same in quiet promptitude. A duty is cast on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations, establishments and institutions are scrupulously followed.

22. In Ravi Prakash Gupta [(2010) 7 SCC 626], the question which came up for consideration before the Apex Court was whether, on account of the failure of the Government of India to identify posts for persons falling within the ambit of Section 33 WA NOs.173, 209 & 382 OF 2025 36 2025:KER:73015 of the 1995 Act, the 1st respondent, a visually handicapped person who suffers from 100% blindness, who had been declared successful in the Civil Services Examination conducted by the Union Public Service Commission, should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question, which was connected with the first question, was whether the reservation provided for in Section 33 of the 1995 Act was dependent on the identification of posts suitable for appointment in such categories, as contended on behalf of the Government of India.

22.1. In Ravi Prakash Gupta [(2010) 7 SCC 626], the 1st respondent, a visually challenged person, appeared in the Civil Services Examination conducted by the Union Public Service Commission in the year 2006. After clearing the preliminary examination, he appeared for the main examination in October 2006 and was declared successful. Thereafter, he was called for an interview scheduled on 01.05.2007. After the interview, the names of 474 candidates who were selected were released on 14.05.2007. In the said list, the names of the 1st respondent and another visually challenged candidate were included. The 1st WA NOs.173, 209 & 382 OF 2025 37 2025:KER:73015 respondent was at Serial No.5 of the merit list prepared for visually challenged candidates, who were declared successful in the examination.

22.2. In Ravi Prakash Gupta [(2010) 7 SCC 626], the Apex Court found that the submission made on behalf of the Government of India regarding the implementation of the provisions of Section 33 of the 1995 Act, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the 1995 Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the Government of India before the High Court was rightly rejected. Therefore, the Apex Court found that the submission made on behalf of the Government of India that identification of Groups A and B posts in the Indian Administrative Service was undertaken after the year 2005 is not of much substance.

22.3. In Ravi Prakash Gupta [(2010) 7 SCC 626], the Apex Court found that, as has been pointed out by the High Court, neither Section 32 nor Section 33 of the 1995 Act makes any WA NOs.173, 209 & 382 OF 2025 38 2025:KER:73015 distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for persons with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to the notice of the Court on behalf of the Government of India. It is only logical that, as provided in Section 32 of the 1995 Act, the posts have to be identified for reservation for the purpose of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the said Act, to give effect to the provisions of Section

33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.

22.4. In Ravi Prakash Gupta [(2010) 7 SCC 626], the Apex Court found that, while it cannot be denied that unless posts are identified for the purposes of Section 33 of the 1995 Act, no WA NOs.173, 209 & 382 OF 2025 39 2025:KER:73015 appointments from the reserved categories contained therein can be made and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Government of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed, where, on account of the non-availability of candidates, some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years, after which they would lapse. Therefore, the Apex Court found no reason to interfere with the judgment of the High Court impugned in the Special Leave Petition. Accordingly, the Special Leave Petition was dismissed with a cost of Rs.20,000/-. The Government of India was given eight weeks' time from the date of judgment to give effect to the directions of the High Court.

WA NOs.173, 209 & 382 OF 2025 40 2025:KER:73015

23. In National Federation of the Blind [(2013) 10 SCC 772], the question that came up for consideration before a Three-Judge Bench of the Apex Court was whether the reservation provided for the disabled persons under Section 33 of the 1995 Act is dependent upon the identification of posts as stipulated by Section 32. The Apex Court noticed that in Ravi Prakash Gupta [(2010) 7 SCC 626], the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 of the Act only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from the year 2005 onwards and not from the year 1996 when the Act came into force. The Court, after examining the interdependence of Sections 32 and 33, viz,. identification of posts and the scheme of reservation, rejected the said contention. In the light of the above pronouncement, it is clear that the scope of identification comes into the picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta [(2010) 7 SCC 626] that Section 32 of the Act is not a precondition for WA NOs.173, 209 & 382 OF 2025 41 2025:KER:73015 computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33. Apart from the reasoning of the Court in Ravi Prakash Gupta [(2010) 7 SCC 626], even a reading of Section 33, at the outset, establishes vividly the intention of the legislature, viz. reservation of 3% for differently abled persons should have to be computed based on total vacancies in the strength of a cadre and not just based on the vacancies available in the identified posts. There is no ambiguity in the language of Section 33, and from the construction of the said statutory provision, only one meaning is possible.

23.1. In National Federation of the Blind [(2013) 10 SCC 772], the Apex Court noticed that a perusal of Section 33 of the Act reveals that this section has been divided into three parts. The first part mandates that every appropriate Government shall appoint a minimum of 3% vacancies in its establishments for persons with disabilities. In this light, the contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only is not tenable by any method of interpretation of this part of the section. The second part deals with the distribution of 3% posts in every establishment among 3 categories of disabilities. It starts from the word 'of WA NOs.173, 209 & 382 OF 2025 42 2025:KER:73015 which'. The word 'of which' has to relate to appointing not less than 3% vacancies in an establishment and, in any way, it does not refer to the identified posts. In fact, the contention of the Government of India was sought to be justified by bringing the last portion of the second part of the section, viz. 'identified posts' in this very first part which deals with the statutory obligation imposed upon the appropriate Government to 'appoint not less than 3% vacancies for the persons or class of persons with disabilities'. The Apex Court was of the considered view that it is not plausible in the light of established rules of interpretation. The minimum level of representation of persons with disabilities has been provided in this very first part, and the second part deals with the distribution of this 3% among the three categories of disabilities. Further, in the last portion of the second part, the words used are 'in the identified posts for each disability' and not 'of identified posts'. This can only mean that out of a minimum 3% of vacancies of posts in the establishments, 1% each has to be given to each of the 3 categories of disability, viz. blind and low vision, hearing impaired and locomotor disabled or cerebral palsy separately and the number of appointments equivalent to the 1% for each disability out of total 3% has to be made against the WA NOs.173, 209 & 382 OF 2025 43 2025:KER:73015 vacancies in the identified posts. The attempt to read identified posts in the first part itself and also to read the same to have any relation with the computation of reservation is completely misconceived. The third part of the section, which is the proviso, also justifies the abovesaid interpretation that the computation of reservation has to be against the total number of vacancies in the cadre strength and not against the identified posts.

23.2. In National Federation of the Blind [(2013) 10 SCC 772], the Apex Court observed that, had the Legislature intended to mandate for computation of reservation against the identified posts only, there was no need for inserting the proviso to section which empowers the appropriate Government to exempt any establishment either partly or fully from the purview of the section subject to such conditions contained in the notification to be issued in the Official Gazette in this behalf. Certainly, the Legislature did not intend to give such arbitrary power for exemption from reservation for persons with disabilities to be exercised by the appropriate Government when the computation is intended to be made against the identified posts. Another provision of the said Act, which also supports this interpretation, is Section 41, which mandates the appropriate WA NOs.173, 209 & 382 OF 2025 44 2025:KER:73015 Government to frame incentive schemes for employers with a view to ensure that 5% of their workforce is composed of persons with disabilities. Thus, on a conjoint reading of Sections 33 and 41, it is clear that while Section 33 provides for a minimum level of representation of 3% in the establishments of appropriate Government, the legislature intended to ensure 5% of representation in the entire workforce both in the public as well as private sectors.

23.3 In National Federation of the Blind [(2013) 10 SCC 772], the Apex Court issued the following directions:

"54. Directions:

In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:

(i) We hereby direct the appellant herein to issue an appropriate order modifying the Office Memorandum dated 29/12/2005 and the subsequent Office Memorandums consistent with this Court's order within three months from the date of passing of this judgment.

(ii) We hereby direct the "appropriate Government" to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default.

(iii) The appellant herein shall issue instructions to all the WA NOs.173, 209 & 382 OF 2025 45 2025:KER:73015 departments/public sector undertakings/Government companies declaring that the non observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/public sector undertakings/Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default".

24. In Kerala Public Service Commission v. E. Dineshan [2016 (2) KHC 910], the common question which came up for consideration before a Division Bench of this Court was with regard to the reservation of vacancies under the 1995 Act for the appointment of differently abled candidates in identified posts in public sector undertakings. In the said decision, the Division Bench was dealing with recruitment to the post of Assistant Grade II/Clerk/Junior Clerk/LDC/Cashier in various State Government-owned Companies/Boards/ Corporations, pursuant to a notification dated 28.03.2007 issued by KPSC.

25. In E. Dineshan [2016 (2) KHC 910], the Division Bench of this Court by referring to various judgments of the Apex Court including Ravi Prakash Gupta [(2010) 7 SCC 626] and National Federation of the Blind [(2013) 10 SCC 772] held that in view of the categoric findings of the Apex Court in the WA NOs.173, 209 & 382 OF 2025 46 2025:KER:73015 aforenoted and other judgments, the question whether reservation available to physically handicapped persons under the Act has to be computed on the basis of the vacancies which arose with effect from 01.01.1996 is no longer res integra. The Act, having come into force with effect from 01.01.1996, the reservation, which has been held to be not dependent on the identification of the posts, would come into operation with effect from the date of the effect of the Act. At best, what can be contended is only that the reservation can be operated by the KPSC only with effect from the date from which that authority was entrusted with the function of making selections and appointments to the public sector undertakings involved. Even if that be the case, if the vacancies which arose after the KPSC was entrusted with the function of making selections and appointments are considered, all the party respondents would be entitled to succeed in their respective writ petitions. The vacancies earmarked for physically handicapped persons are therefore to be reckoned not with effect from the date of the Government order identifying the posts or with effect from 01.01.2008, the date on which the Government directed by its clarificatory order that the reservation is to take effect, but with effect from 01.01.1996 or at least with WA NOs.173, 209 & 382 OF 2025 47 2025:KER:73015 effect from the date when the KPSC was entrusted with the selection and the number of vacancies as well as the quota and the rota available, would be capable of being ascertained. Looked at from this angle also, the judgments under appeal are perfectly in order and in strict conformity with the principles set out by the Apex Court in the matter of implementation of the reservation available to physically handicapped persons.

26. In Kerala Public Service Commission v. George Mathew [2022:KER:15867], a Division Bench of this Court held that the Government order dated 27.09.2021, which stands corrected by the order dated 21.12.2021 correcting the description of the post as Computer Programmer-cum-Operator (Beverages Corporation), whereby the said post was identified as the post suitable for appointment of differently abled persons would relate back to the commencement of the 1995 Act. As held in the decision of the Division Bench in E. Dineshan [2016 (2) KHC 910], for the purpose of backlog vacancies, there is no necessity for a special recruitment, and the pending ranked list could be utilised appropriately against the vacancies reported. Therefore, the Division Bench ordered that the competent authority in KPSC will prepare a special ranked list for differently WA NOs.173, 209 & 382 OF 2025 48 2025:KER:73015 abled candidates from among the candidates considered for selection covered by the notification dated 15.11.2023 and the ranked list dated 03.07.2019 and if any of the turns of differently abled candidates like turn Nos.1, 34 and 66 have been bypassed, then the same should be recouped as against the next available vacancy without any further delay in advising such candidates. On the issue as to whether, in the case of candidates belonging to categories I and II are not available in the present zone of consideration, candidates belonging subcategory III could be straightaway considered, etc. are left open to be raised and decided at the appropriate stage, in the manner known to law. The Division Bench directed that after the preparation of special ranked list of differently abled candidates as above, KPSC should take necessary steps to implement the mandate contained in the provisions of the 2016 Act, more particularly Section 34 thereof, in the light of the law laid down by the Apex Court in Ravi Prakash Gupta [(2010) 7 SCC 626], National Federation of the Blind [(2013) 10 SCC 772] and the law laid down by this Court in E. Dineshan [2016 (2) KHC 910].

27. In Kerala Public Service Commission v.

Sheethal.C.V [2025 KHC online 850], the appeal before us was WA NOs.173, 209 & 382 OF 2025 49 2025:KER:73015 against the judgment of the learned Single Judge allowing the writ petition filed by the 1st respondent therein seeking a writ of mandamus commanding the 3rd respondent Secretary to the Government, Social Justice Department to identify and earmark post under Section 34(1)(c) of the 2016 Act, as stipulated under Sections 32 and 33 of the said Act, and the relevant orders in that regard, in the ranked list published by the KPSC, within a time frame to be fixed by the Court; a writ of mandamus commanding the Secretary to Government, Higher Education Department to identify and earmark the posts under Sections 33 and 34 of the Act and to report the identified vacancies, with retrospective effect from the date on which Ext.P4 ranked list published by KPSC came into force, within a time frame to be fixed by this Court; and a writ of mandamus commanding the KPSC to advice the petitioner therein for appointment against the first vacancy identified and earmarked for persons with locomotor disability, as stipulated under Section 34(1)(c) of the Act in the event of respondents complying with the directions contained in the 1st and the 2nd reliefs sought for that writ petition.

28. In Sheethal.C.V [2025 KHC online 850], after considering the rival conventions of the parties and the materials WA NOs.173, 209 & 382 OF 2025 50 2025:KER:73015 on record, this Court held thus:

"As per the mandate of Section 33 of the 2016 Act, the appropriate Government shall identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved, in accordance with the provisions of Section 34, and shall undertake periodic review of the identified posts at an interval not exceeding three years. Section 33 provides for the constitution of an expert committee with representation of persons with benchmark disabilities for the identification of such posts. Section 32 of the earlier enactment, i.e., the 1995 Act, deals with the identification of posts and Section 33 deals with the reservation of posts.

29. As held by the Apex Court in Ravi Prakash Gupta [(2010) 7 SCC 626], in the context of Sections 32 and 33 of the 1995 Act, as provided in Section 32, the posts have to be identified for reservation for the purpose of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the said Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein.

30. In Ravi Prakash Gupta [(2010) 7 SCC 626], the Apex Court was dealing with a case in which the claim was that though there were five identified vacancies available in the visually handicapped category, the appointment was made only against one vacancy. Ravi Prakash Gupta was in the list, being a visually handicapped person, who was not appointed. In the judgment of the Delhi High Court, the Division Bench noticed the response received under the Right to Information Act, 2005 and found seven backlog vacancies from the year 1996 capable of being WA NOs.173, 209 & 382 OF 2025 51 2025:KER:73015 filled up from the subject list. It was in such circumstances that a direction was issued to appoint the writ petitioner and also directed notional seniority along with his batchmates. Therefore, the Apex Court affirmed the judgment of the Division Bench of the Delhi High Court.

31. As held by the Apex Court in Ravi Prakash Gupta [(2010) 7 SCC 626], unless posts are identified for the purposes of Section 33 of the 1995 Act, no appointments from the reserved categories contained therein can be made. To such an extent, the provisions of Section 33 are dependent on Section 32. But the extent of such dependence is for the purpose of making appointments and not for the purpose of making reservation. In other words, the reservation under Section 33 is not dependent on identification. A duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 with persons suffering from the disabilities spelt out therein.

32. As held by a Three-Judge Bench of the Apex Court in National Federation of the Blind [(2013) 10 SCC 772], in the light of the decision in Ravi Prakash Gupta [(2010) 7 SCC 626], the scope of identification under Section 32 of the 1995 Act comes into the picture only at the time of appointment of a person in the post identified for disabled persons and identification of posts is not relevant at the time of computing 3% reservation under Section 33 of the said Act. A reading of Section 33 establishes the intention of the Legislature that the reservation of 3% for differently abled persons should be computed based on total vacancies in the strength of a cadre and not based on the vacancies available in the identified posts."

29. As far as vertical reservation as in the case of backward classes and horizontal reservation as in the case of physically WA NOs.173, 209 & 382 OF 2025 52 2025:KER:73015 handicapped persons, the Apex Court in Indra Sawhney and Others v. Union of India [(1992) Supp 3 SCC 217] it is held as under:

"812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture : all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes, and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16); can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called inter lock reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same This is how these reservations are worked our in several States and there is no reason not to continue that procedure.

813. It is, however, made clear that the rule of. 50% shall be applicable only to reservations proper; they shall not be indeed cannot he applicable to exemptions, concessions relaxations, if any, provided to 'Backward Class of Citizens' under Article 16(4)."

WA NOs.173, 209 & 382 OF 2025 53 2025:KER:73015

30. In Siddharth Sharma v. High Court of Judicature at Rajasthan [2024 KHC OnLine 8491], the Apex Court, after referring to Indra Sawhney [(1992) Supp 3 SCC 217] , held as under:

"8. The Court in Indira Sawhney has clarified that reservations for the physically handicapped "category" are horizontal in nature in the sense they cut across vertical reservations. The persons selected against this quota will be placed in the appropriate category so that if a candidate, for instance belongs to the Scheduled Caste category, such a candidate will be placed in that quota by making necessary adjustments. In other words, once selected, the candidate would be placed in the category to which he or she belongs after making necessary adjustments. "

31. Now coming to the question of reservation in the matter of promotion, in Indra Sawhney [(1992) Supp 3 SCC 217] , while answering the issue whether clause (4) of Article 16 of the Constitution of India provides reservations being made in the matter of promotion, in the case of reservation to backward classes, the Apex Court held thus:

"827. We find it difficult to agree with the view in Rangachari [AIR 1962 SC 36] that Article 16(4) contemplates or permits reservation in promotions as well. It is true that the expression "appointment" takes in appointment by direct recruitment, appointment by promotion and appointment by transfer. It may also be that Article 16(4) contemplates not merely quantitative but also qualitative support to backward class of citizens. But this question has not to be answered on a reading of Article 16(4) WA NOs.173, 209 & 382 OF 2025 54 2025:KER:73015 alone but on a combined reading of Article 16(4) and Article 335. In Rangachari this fact was acknowledged but explained away on a basis which, with great respect to the learned Judges who constituted the majority does not appear to be acceptable. The propositions emerging from the majority opinion in Rangachari have been set out in Para 104. Under proposition (d) (as set out in para 104), the majority does say that "in providing for the reservation of appointments or posts under Article 16(4), the State has to take into consideration the claims of the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Article 335. Reservation of appointments or posts may theoretically and conceivably means "some impairment of efficiency;" but then it explains it away by saying "but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts".

828. We see no justification to multiply 'the risk', which would be the consequence of holding that reservation can be provided even in the matter of promotion. While it is certainly just to say that a handicap should be given to backward class of citizens at the stage of initial appointment, it would be serious and unacceptable inroad into the rule of equality of opportunity to say that such a handicap should be provided at every stage of promotion throughout their career. That would mean creation of a permanent separate category apart from the mainstream a vertical division of the administrative apparatus. The members of reserved categories need not have to compete with others but only among themselves. There would be no will to work, compete WA NOs.173, 209 & 382 OF 2025 55 2025:KER:73015 and excel among them. Whether they work or not, they tend to think, their promotion is assured. This in turn is bound to generate a feeling of despondence and 'heart burning' among open competition members. All this is bound to affect the efficiency of administration. Putting the members of backward classes on a fast track would necessarily result in leap frogging and the deleterious effects of "leap frogging" need no illustration at our hands. At the initial stage of recruitment reservation can be made in favour of backward class of citizens but once they enter the service, efficiency of administration demands that those members too compete with others and earn promotion like all others; no further distinction can be made thereafter with reference to their "birth mark", as one of the learned Judges of this Court has said in another connection. They are expected to operate on equal footing with others. Crutches cannot be provided throughout one's career. That would not be in the interest of efficiency of administration nor or at in the larger interest of the nation. It is wrong to think that by holding so, we are confining the backward class of citizens to the lowest cadres. It is well known that direct recruitment takes place at several higher levels of administration and not merely at the level of Class-IV and Class III. Direct recruitment is provided even at the level of All India Services. Direct recruitment is provided at the level of District Judges, to give an example nearer home. It may also be noted that during the debates in the Constituent Assembly, none referred to reservation in promotions; it does not appear to have been within their contemplation.

829. It is true that Rangachari [AIR 1962 SC 36] has been the law for more than 30 years and that attempts to reopen the issue were repelled in Karamchari Sangh [AIR 1981 SC 298). It may equally be true that on the basis of that decision, reservation may have been provided in the matter of promotion in some of the WA NOs.173, 209 & 382 OF 2025 56 2025:KER:73015 Central and State services but we are convinced that the majority opinion in Rangachari, to the extent it holds, that Article 16(4) permits reservation even in the matter of promotion, is not sustainable in principle and ought to be departed from. However, taking into consideration all the circumstances, we direct that our decision on this question shall operate only prospectively and shall not affect promotions already made, whether on temporary, officiating or regular / permanent basis. It is further directed that wherever reservations are already provided in the matter of promotion be it Central Services or State Services, or for that matter services under any corporation, authority or body falling under the definition of 'State' in Article 12 such reservations shall continue in operation For a period of five years from this day. Within this period, it would be open to the appropriate authorities to revise, modify or reissue the relevant Rules to ensure the achievement of the objective of Article 16(4). If any authority thinks that for ensuring adequate representation of 'backward class of citizens' in any service, class or category, it is necessary to provide for direct recruitment therein, it shall be open to it to do so.

830. A purist or a legal theoretician may find this direction a little illogical. We can only answer them in the words of Lord Roskill. In his presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject "Law Lords, Reactionaries or Reformers?", the learned Law Lord said:

"Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing, the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves "this case requires a policy decision what is the right policy decision?" The answer is, and I hope will hereafter be, to follow that route which is most WA NOs.173, 209 & 382 OF 2025 57 2025:KER:73015 consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism. But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply."

831. We must also make it clear that it would not be impermissible for the State to extend concessions and relaxations to members of reserved categories in the matter of promotion without compromising the efficiency of the administration. The relaxation concerned in Thomas and the concessions namely carrying forward of vacancies and provisions for in service coaching / training in Karamchari Sangh are instances of such concessions and relaxations. However, it would not be permissible to prescribe lower qualifying marks or a lesser level of evaluation for the members of reserved categories since that would compromise the efficiency of administration. We reiterate that while it may be permissible to prescribe a reasonably lesser qualifying marks or evaluation for the OBCs, SCs and STs consistent with the efficiency of' administration and the nature of duties attaching to the office concerned in the matter of direct recruitment, such a course would not be permissible in the matter of promotions for reasons recorded hereinabove."

(Underline supplied)

32. In Rajeev Kumar Gupta [(2016) 13 SCC 153], the issue before the Apex Court was the legality of denial of statutory WA NOs.173, 209 & 382 OF 2025 58 2025:KER:73015 benefit of 3% reservation in the identified posts falling within group A and B in Prasar Bharati by the impugned memorandums issued by the Department of Personnel and Training, Government of India. In paragraphs 18 to 24 of that judgment the Apex Court held thus:

"18. The principle is that the State shall not discriminate (which normally includes preference) on the basis of any one of the factors mentioned in Article 16(1). Though under the doctrine of "reasonable classification", it has always been held that State can identify classes of people who have distinct characteristics or disadvantages and treat them separately under law. Having regard to the history, the social and demographic context of our nation, the Constitution framers thought it appropriate to enable the State under Article 16(4) to identify citizens for preferential treatment for the purpose of employment under the State.

19. This Court in Indra Sawhney was dealing with the action of the State in providing reservation in employment under the State to various classes of citizens, identified by the State to be backward classes. The process of such identification and the nature and extent of reservations that could be provided under Article 16(4) were the main issues before this Court. It is in this context, this Court held that reservation in the context of promotions to higher posts under the State are constitutionally impermissible.

20. To remove the basis of the rule propounded in Indra Sawhney case, Parliament enacted the Constitution (Seventy - Seventh Amendment) Act, 1995. By inserting Article 16(4A), an exception is created in favour of citizens belonging to the Scheduled Castes and the Scheduled Tribes, from the rule laid down in Indra WA NOs.173, 209 & 382 OF 2025 59 2025:KER:73015 Sawhney.

21. The principle laid down in Indra Sawhney is applicable only when the State seeks to give preferential treatment in the matter of employment under State to certain classes of citizens identified to be a backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the factors such as caste, religion etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PwD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to the PwD.

22. The 1995 Act was enacted to fulfill India's obligations under the 'Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region'. The objective behind the 1995 Act is to integrate PwD into the society and to ensure their economic progress. The intent is to turn PwD into 'agents of their own destiny'. PwD are not and cannot be equated with backward classes contemplated under Article 16(4). May be, certain factors are common to both backward classes and PwD such as social attitudes and historical neglect etc.

23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinized by rigorous standards within the legal framework of the 1995 Act.

24. A combined reading of Section 32 and Section 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater WA NOs.173, 209 & 382 OF 2025 60 2025:KER:73015 opportunities to PwD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PwD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. 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". (Underline supplied)

33. In Siddaraju [2020 (1) KHC 609] the Apex Court by quoting Rajeev Kumar Gupta [(2016) 13 SCC 153] held that the rule of no reservation in promotions as laid down in Indra Sawhney [(1992) Supp 3 SCC 217] has clearly and normatively no application to Persons With Disability. In paragraph 9 of that judgment, the Apex Court held that the principle laid down in Indra Sawhney [(1992) Supp 3 SCC 217], is applicable only when State seeks to give preferential treatment in the matter of employment under the State to certain classes of citizens identified to be backward class. Article 16(4) does not disable the State from providing differential treatment (reservations) to other classes of citizens under Article 16(1) if they otherwise deserve such treatment. However, for creating such preferential treatment under law, consistent with the mandate of Article 16(1), the State cannot choose any one of the WA NOs.173, 209 & 382 OF 2025 61 2025:KER:73015 factors such as caste, religion, etc. mentioned in Article 16(1) as the basis. The basis for providing reservation for PwD is physical disability and not any of the criteria forbidden under Article 16(1). Therefore, the rule of no reservation in promotions as laid down in Indra Sawhney has clearly and normatively no application to PwD.

34. In Leesamma Joseph [(2021) 9 SCC 208], the issue before the Apex Court was the right of promotion under the 1995 Act. In paragraphs 21 to 24 of that judgment the Apex Court held thus:

"II. Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?

21. On a plea of the learned Amicus Curiae, which we unhesitatingly accept, there can be little doubt that it was never the intention of the Legislature that the provisions of Section 32 would be used as a tool to frustrate the benefits of reservation under Section 33. 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 a 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. In Government of India and Another v. Ravi Prakash Gupta and Another (supra) also, this WA NOs.173, 209 & 382 OF 2025 62 2025:KER:73015 Court mandated the identification of posts for purposes of reservation. Thus, what is required is identification of posts in every establishment until exempted under proviso to Section 33. No doubt the identification of the posts was a prerequisite to appointment, but then the appointment cannot be frustrated by refusing to comply with the prerequisite. This view was affirmed by a larger Bench of three Judges in Union of India v. National Federation of Blind (supra).

III. Whether in absence of a provision in the Rules for reservation in promotion for PwD, whether promotion can be denied to a PwD?

22. The aforesaid issue was raised by learned Amicus Curiae in the context of the plea of the appellant State that the State does not provide for any reservation in promotion for PwD. Thus, a person with disability would be considered for promotion along with other persons working in the feeder cadre. We have 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 and in our view, this is the basis of the mandate of this Court in Rajeev Kumar Gupta's and Siddaraju's cases (supra).

23. The only caveat to the aforesaid would be if the Government is of the view that the posts in the promotional cadre cannot be reserved for PwD category due to functional or other reasons and WA NOs.173, 209 & 382 OF 2025 63 2025:KER:73015 that should not be a ruse to defeat the reservation in promotion. We are conscious of the fact that such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability as submitted by the learned Amicus Curiae, more often than not, the disability comes in the way of meeting the requirements for promotion. In such a situation, we would require the government to explore methods to address the issue of stagnation of PwD.

24. In the aforesaid eventuality, learned Amicus Curiae has suggested some solutions, i.e., (a) to provide promotional avenues in other departments / establishments (where posts are identified for PwD at a higher level) or (b) grant of higher pay in the same post. This is stated to be an obligation flowing from Section 47 of the 1995 Act".

35. In Leesamma Joseph [(2021) 9 SCC 208] the Apex Court further held as under:

"29. Now coming to the question of the respondent not being initially appointed in the quota for PwD in the feeder cadre, we note that 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 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 WA NOs.173, 209 & 382 OF 2025 64 2025:KER:73015 consideration for promotion. 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. 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" [Underline supplied]

36. In Leesamma Joseph [(2021) 9 SCC 208], the Apex Court entered the following conclusion:

"31. CONCLUSION 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. We have also answered various questions which have arisen in the present proceedings assisted by learned Amicus Curiae. In fact, what seems to emerge is that the appellant - State has not implemented the judgment of this Court in Rajeev Kumar Gupta's and Siddaraju's cases (supra). 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. We are making it time bound so that the mandate of the Act is not again frustrated by making Section 32 as an excuse for not having identified the post.

32. We may also note that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. The view aforesaid was required to be propounded as a large number of cases may still arise in the context of the 1995 Act."

[Underline supplied]

37. In paragraphs 15, 16, 19, 20 and 45 of the judgment WA NOs.173, 209 & 382 OF 2025 65 2025:KER:73015 in Reserve Bank of India v. A.K. Nair [2023 SCC online SC 801] the Apex Court held thus:

"15. The law relating to grant of equal opportunities,protection of rights, and full participation of persons with disabilities was codified by the PwD Act, 1995. Chapter VI of the PwD Act, 1995, titled 'EMPLOYMENT', containing sections 32 to 41, inter alia, mandated identification of posts which could be reserved for persons with disabilities for appointment, the extent of reservation and the procedure to be followed in the matter of recruitment. Significantly,Chapter VI did not contain any express provision mandating an'employer' or an 'establishment' as defined in clauses (j) and (k) of section 2, respectively, to reserve any percentage of posts for promotion to persons with disabilities serving in the feeder cadre.

16. However, Chapter VIII titled 'NON-DISCRIMINATION' in sub- section (2) of section 47 ordained that no promotion shall be denied to a person merely on the ground of his disability. Sections 44 to 47, under Chapter VIII, envisaged that persons with disabilities should not face any discrimination in any of the fields specified therein, with section 47 particularly dealing with nondiscrimination in Government employment. It is true that sub-section (2) of section 47 does not contain any mandate requiring the employer or establishment to make reservation in promotional posts; on the contrary, it is a command to the employer or establishment that merely because an employee is suffering from a disability, as defined in section 2(i) of the PwD Act, 1995, he is not to be denied promotion.

17. xxxx xxxx xxxx

18. xxxx xxxx xxxx

19. Be that as it may, mere absence of an express mandate in Chapter VI of the PwD Act, 1995 requiring reservation in WA NOs.173, 209 & 382 OF 2025 66 2025:KER:73015 promotion for persons with disabilities could not have been construed as not obliging the appropriate Government not to keep reserved vacancies on promotional posts for those answering clauses (i) to (iii) of section 33. Though the language used in section 33 could admit of a little bit of confusion, the crucial words there are "shall appoint in every establishment".

Paraphrased, it implies that while the appropriate Government is making appointment in every establishment, it ought to reserve a minimum of 3 (three) per cent vacancies for persons or class of persons with disability, of which 1 (one) per cent each shall be reserved for those persons with disabilities of the nature mentioned in the clauses therein, i.e., (I) blindness or low vision,

(ii) hearing impairment, and (iii) locomotor disability or cerebral palsy, and that appointments shall be made on the posts identified for each such disability as in the said clauses. The proviso which permits exemption is not relevant in the present case; hence, its effect is not considered.

20. It is, therefore, the statutory duty enjoined by section 33 that there must be appointment of persons with disabilities in every establishment which ought not to be less than 3 (three) per cent but a minimum of 1 (one) percent of vacancies, available on identified posts for each disability, has to be reserved. The confusion, to our mind, might have stemmed from the narrow interpretation of the word "appoint", without realizing that "promotion" is also included within "appointment". The term "appointment" is quite broad and includes appointment by 'direct recruitment' as well as appointment by way 14 of 'promotion'. Prior to Rajiv Kumar Gupta (supra), there was no authoritative pronouncement on the aspect of reservation in promotion. The interpretation of section 33 of the PwD Act, 1995 made by Rajiv Kumar Gupta (supra) finds its resonance in Siddaraju (supra).

      xxxx            xxxx          xxxx ..........
 WA NOs.173, 209 & 382 OF 2025           67                 2025:KER:73015

45. There is, therefore, no dearth of authority for the proposition that the PwD Act, 1995 not only mandated reservation in appointment but also contemplated reservation in promotion."

38. In A.K. Nair [2023 SCC online SC 801] the Apex Court has not given any definite finding regarding the requirement of identification of the post in promotion. In Ext.P18 judgment dated 09.08.2023 in OP(KAT) No. 312 of 2023, a Division Bench of this Court followed the judgment in A.K Nair, and after observing that where the feeder category of the post in the promotion line is already identified as suitable for lateral reservation under the disability quota, then separate identification in the promotion post may not be required, the Division Bench held that it need not go into those aspects in that judgment. A finding has not been arrived at in those aspects in Ext.P18 judgment. Therefore, the appellants cannot rely on Ext.P18 judgment to argue that where the reservation post for PwDB candidates are identified in the feeder category, then seperate identification in the promotion post in unnecessary.

39. The appellants in W.A.No.173 of 2025 who are the petitioners in W.P(C) No.15097 of 2024 are challenging Ext.P17 and Ext.P23 Government orders dated 26.10.2023 and 01.02.2024 respectively, to the extent they go against Ext.P7 WA NOs.173, 209 & 382 OF 2025 68 2025:KER:73015 office memorandum dated 17.05.2022 issued by the Central Government and the judgments of the Apex Court as well as this Court, pertaining to the grant of reservation in promotion. The appellants are also challenging Ext.P20 letter dated 15.01.2024 issued by the Director of Social Justice Department and Ext.P24 order dated 06.03.2024 issued by the Registrar of M.G.University, which are issued in tune with Ext.P17 Government order. Exts.P18, P21 and P22 documents under challenge in W.P(C) No.13766 of 2024 from which W.A.No.209 of 2025 arose, are the very same documents which were marked as Exts.P20, P23 and P24, respectively, in W.P.(C)No.15097 of 2024. In W.P.(C)No.39733 of 2023 from which W.A.No.382 of 2025 arose, it was based on the very same pleadings as that of the remaining two writ petitions, reliefs are sought by the petitioners therein, though setting aside of Exts.P17, P20, P23 and P24 documents produced in W.P.(C)No.15097 of 2024 are not specifically pleaded therein.

40. From the law laid down in Rajeev Kumar Gupta [(2016) 13 SCC 153], Siddaraju [2020 (1) KHC 609] and Leesamma Joseph [(2021) 9 SCC 208] it clear that it is the duty of the Government to provide reservation for PwBDs in WA NOs.173, 209 & 382 OF 2025 69 2025:KER:73015 promotion without differentiating them based on the mode of selection, such as direct appointment and promotion. Therefore Exts.17, P23 and P24 orders and Ext.P20 communication are bad to the extent it directs that reservation for PwBDs can be given only to the posts where appointments are done through both direct recruitment and by promotion. However, it is also clear from the law laid down in Leesamma Joseph [(2021) 9 SCC 208] that for granting reservation in promotion, identification of the post is a pre-requisite. The contention of the appellants that once a post is identified in the feeder category, the identification of the post in the promotion category is unnecessary, cannot be accepted, in view of the judgments referred supra and the mandate under Sections 33 and 34 of the 2016 Act.

41. The next disputed question in the instant cases is the Roster points on which reservation has to be applied in the 100 point Roster. In Ext.P7 office memorandum, for the implementation of 4% reservation under 100 point Roster, the cycle is fixed as 1, 26, 51 and 76. However, in Ext.P17 Government order, the 1st respondent fixed the cycle as 6, 31, 56 and 81. According to the appellants, this fixation by the State Government is against Ext.P7 office memorandum of the Central WA NOs.173, 209 & 382 OF 2025 70 2025:KER:73015 Government. In paragraph 10 of Ext.P7 office memorandum dated 17.05.2022 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training, the maintenance of Rosters for effecting reservation in promotion, is provided as under:

"10. EFFECTING RESERVATION - MAINTENANCE OF ROSTERS 10.1 Every Government establishment shall maintain, cadre-wise and group-wise, a separate 100-point vacancy-based reservation roster/register, as in the case of direct recruitment, for determining/effecting reservation for the PwBDs in promotion. There will be separate roster/register, in each cadre in Group 'C' Group 'B' and Group 'A', wherever reservation in promotion for PwBD is applicable. There shall be separate roster/register for promotion and direct recruitment.

10.2 Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into four blocks, comprising the following points:

1st Block - Point No. 01 to point No. 25 2nd Block - Point No. 26 to point No. 50 3rd Block - Point No. 51 to point No. 75 4th Block - Point No. 76 to point No. 100

10.3 Points 1, 26, 51 and 76 of the roster shall be earmarked for PwBDs-one point each for category under (a), (b), (c) of Para 2.2 above, respectively, and one point for category (d) and (e) conjointly. The Head of the establishment shall ensure that vacancies identified at Sl. No.1, 26, 51 and 76 are earmarked for the respective categories of the PwBD. However, the Head of the Department shall decide the placement of the selected candidate in the roster/ register. In other words, the category to be WA NOs.173, 209 & 382 OF 2025 71 2025:KER:73015 appointed first will be decided by the Head of the Department based on the functional requirement.

10.4 All the vacancies in each recruitment year in a grade, arising irrespective of vacancies reserved for PwBDs, shall be entered in the relevant roster. If the vacancy falling at point no. 1 is not identified for the PwBD, or if the Head of the Department feels that it is not possible to fill up that post by the PwBDs for any other reason, to be recorded in writing, one of the vacancies falling at any of the points from 2 to 25 shall be treated as reserved for the PwBD and filled, as such.

10.5 Likewise, one vacancy out of the total vacancies falling at points from 26 to 50 or from 51 to 75 or from 76 to 100 shall have to be filled by the PwBDs. The purpose of keeping points 1, 26, 51 and 76 as reserved is to fill up the first available suitable vacancy by the PwBD candidate of the category for which the post is earmarked.

10.6 There is a possibility that none of the vacancies from 1 to 25 is found suitable for any category of the PwBD. In that case, two vacancies from 26 to 50 shall be filled from amongst the PwBDs. If the vacancies from 26 to 50 are also not suitable for any category, three vacancies in the third block 51 to 75 shall be filled as reserved. This means that if no vacancy can be reserved in a particular block, it shall be carried over to the next block. 10.7 After all the 100 points of the roster are covered, a fresh cycle of 100 points shall start.

10.8 If the number of vacancies in a year is such as to cover only one block (say 25 vacancies, including PwBD quota, if any) or two (say 50 vacancies, including the quota, if any), the category of the PwBDs should be accommodated as per the roster points.

However, in case, the said vacancy is not identified for the respective category of disability, the Head of the Department shall decide the category on the basis of the nature of the post, WA NOs.173, 209 & 382 OF 2025 72 2025:KER:73015 the level of representation of the specific category in the grade/post concerned, etc."

42. The contesting respondents have taken a stand that the Roster point fixed by the Central Government in Ext.P7 is not applicable to the State Government in view of First Proviso to Section 34(1) of 2016 Act and the Proviso to Rule 11 of Rights of Persons With Disabilities rules, 2017, which says that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. Whether the State Government is justified from deviating the Roster points fixed in Ext.P7 office memorandum while passing Ext.P17 order is to be analysed on the basis of the intention behind fixation of such Roster points in the light of various judgments of the Apex Court.

43. As mentioned hereinabove, in Ext.P7, office memorandum, the Central Government has fixed the Roster points for promotion in 100 point Roster, at points 1, 26, 51 and

76. It is apposite to mention at this juncture that a learned Single Judge of this Court in Samajam Higher Secondary School, Muthukulam v. State of Kerala [2025 (3) KHC SN 30 : 2025 KHC 499] considered the issue, whether the stipulation in Clause WA NOs.173, 209 & 382 OF 2025 73 2025:KER:73015 2 of G.O.(Ms) No.111/2022/G.Edn. dated 25.06.2022 requiring the institutions that have not implemented reservation for differently abled persons to earmark the first vacancy in the block of 33/25 for differently abled persons, is valid and held as under:

"28. As I have found that fixation of roster point is permissible, the next question that arises is whether the State Government can insist that the first vacancy in the roster should be reserved for persons with disability. In the National Federation of Blind (supra), the Hon'ble Supreme Court had considered the correctness of the relevant clauses of the Office Memorandum dated 29.12.2005 ('2005 OM' for short) issued by the Central Government for implementing reservation for persons with disabilities in posts and services under the Central Government. The 2005 OM contemplates maintenance of a 100 - point reservation roster registers for each group and each cycle of 100 points was to be divided into three blocks, viz., point 1 to point 33 as the first block, point 34 to point 66 as the second block and point 67 to point 100 as the third block. The 2005 OM further states that points 1, 34 & 67 of the roster shall be earmarked and reserved for persons with disabilities, which means that the first vacancy in each block of 33 is to be earmarked for persons with disabilities. The Hon'ble Supreme Court held that some of the clauses in the 2005 OM, which are contrary to the findings in the judgment, are struck down. The Hon'ble Supreme Court directed the Government to issue a new Office Memorandum consistent with the decision rendered by the Court. The Hon'ble Supreme Court held that what is contemplated in the Act is a vacancy - based reservation and that the judgment in R. K. Sabharwal v. State of Punjab, 1995 (2) SCC 745 would not apply. After the judgment of the Hon'ble Supreme Court, paragraphs 14 and 15(1) of the 2005 OM were WA NOs.173, 209 & 382 OF 2025 74 2025:KER:73015 amended by stating that reservation for persons with disabilities in Group A and Group B posts shall be computed based on the total number of vacancies occurring in direct recruitment quota in all Group A posts or Group B posts respectively in the cadre and that separate rosters for Group A and Group B posts in the establishment shall be maintained. The provision regarding earmarking of the first vacancy was not interfered with by the Hon'ble Supreme Court, nor has it been amended.

29. In Rajesh Motibhai Desai (supra), a learned Single Judge of the Gujarat High Court held that the order of the Government identifying point numbers 34, 68, and 100 for appointment of persons with disabilities in the 100 - point roster instead of point numbers 1, 34, and 67, was unreasonable and arbitrary. It was also held to be against what was provided in the 2005 OM. The court held that the contention that the Government can wait till the 33rd vacancy arises, to provide reservation, defeats the very purpose intended by the legislature, more particularly when the sanctioned post was itself only 21 in that case. The Court further held that the purpose was to ensure a fuller life with dignity for the disabled persons. The judgment of the Learned Single Judge was challenged in a Letters Patent Appeal before the Division Bench, and the appeal was also dismissed. The Division Bench held that, for effecting reservation divided into 3 blocks, being a beneficial legislation, the authorities ought to have given the benefit by fixing the roster points at 1,34, and 67 instead of 34, 68, and 100, which conforms to the 2005 OM, even after the same was amended. I am in complete agreement with the view expressed by the Gujarat High Court in the above - said judgments, which is also in tune with the judgment of the Hon'ble Supreme Court in the National Federation of Blind (supra), and the amendment of the 2005 OM by the Central Government thereafter.

WA NOs.173, 209 & 382 OF 2025 75 2025:KER:73015

30. In the above circumstances, the argument that the first vacancy cannot be earmarked and that a roster - based reservation cannot be followed in the case of reservation under the 1995 Act and the 2016 Act is not sustainable. Question No.1 is answered by holding that Clause 2 of the Government order dated 25.6.2020 is valid. "

44. It is true that the First Proviso to Section 34(1) of the 2016 Act and the Proviso to Rule 11 of Rights of Persons With Disabilities Rules, 2017, states that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. But while analysing the intention behind granting reservation in promotion as that in the case of appointment in the entry cadre, it is only to be held that the Government concerned cannot fix the Roster for granting reservation in promotion at their whims and fancies, so as to nullify the benefit of a reservation in promotion. The purpose behind fixation of the Roster points for reservation at 1, 26, 51 and 76 is clear from Ext.P7 office memorandum as well as from the judgment referred supra. Therefore, fixation of Roster points in 100 point Roster directed in Ext.P17 Government order as 6, 31, 56 and 81 can only be held as against the intention and purpose of granting reservation as envisaged under the provisions of the 1995 Act and later in the 2016 Act.

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45. From the above discussions, conclusion is irresistible that Exts.P17 and P23 Government orders, are liable to the set aside to the extent they go against the principles laid down in Rajeev Kumar Gupta [(2016) 13 SCC 153], Siddaraju [2020 (1) KHC 609] and Leesamma Joseph [(2021) 9 SCC 208] and also the directions contained in Ext.P7 office memorandum issued by the Central Government. Consequently, Ext.P20 letter issued by the Director of Social Justice Department and Ext.P24 order issued by the Registrar of M.G.University are also liable to be set aside.

In the result, the writ appeals are allowed by setting aside the impugned judgments of the learned Single Judge and the writ petitions are disposed of as under:

     i.    Exts.P17   and   P23   Government    orders    dated
     26.10.2023    and   01.02.2024    produced    in    W.P(C)

no.15097 of 2024 are set aside to the extent, it goes against Ext.P7 office memorandum dated 17.05.2022 issued by the Government of India Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training and the principles laid down in Rajeev Kumar Gupta [(2016) 13 SCC 153], Siddaraju [2020 (1) KHC 609] and Leesamma Joseph [(2021) 9 SCC 208].

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        ii.    Ext.P20 letter dated 15.01.2024 issued by the

Director of Social Justice Department and Ext.P24 order dated 06.03.2024 issued by the Registrar of M.G.University, produced in W.P(C) no.15097 of 2024, are set aside, as they are issued in violation of the guidelines in Ext.P7 office memorandum and the principles laid down in Rajeev Kumar Gupta [(2016) 13 SCC 153], Siddaraju [2020 (1) KHC 609] and Leesamma Joseph [(2021) 9 SCC 208].

iii. The respondents are directed to complete the identification of the promotion posts of posts now occupied by the appellants, at the earliest, as directed in Leesamma Joseph [(2021) 9 SCC 208], and on completion of such identification, if any such post is identified, grant promotion to them by fixing the Roster points in accordance with Ext.P7 office memorandum, by issuing necessary orders.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE DSV/-

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                     APPENDIX OF WA 173/2025

PETITIONERS' ANNEXURES

Annexure A1         A TRUE COPY OF THE INTERIM ORDER PASSED BY
                    THIS HON'BLE COURT IN W.P (C) 15097/2024
                    DATED 09.04.2024
Annexure A2         A TRUE COPY OF THE JUDGMENT IN RP 752 OF 2024
                    DATED 28.11.2024 OF THIS HON'BLE COURT
Annexure A3         A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
                    COURT IN CON. CASE (C) 1336/2024 DATED
                    03.12.2024
Annexure A4         TRUE COPY OF THE APPLICATION SUBMITTED BY THE
                    APPELLANT BEFORE THE PUBLIC INFORMATION
                    OFFICER, M.G.UNIVERSITY DATED 23.1.2023 AND
                    THE REPLY GIVEN BY THE PUBLIC INFORMATION
                    OFFICER DATED 28.1.2023
Annexure A5         TRUE COPY OF THE APPLICATION SUBMITTED BY THE
                    APPELLANT BEFORE THE PUBLIC INFORMATION

OFFICER, M.G.UNIVERSITY DATED 28.10.2023 AND THE REPLY GIVEN BY THE PUBLIC INFORMATION OFFICER DATED 2.12.2023 Annexure A6 A TRUE COPY OF THE RELEVANT PAGES OF THE ORDER NO. 5644/AD/A1/2022/MGU DATED 31.05.2022 Annexure A7 TRUE COPY OF THE DISABILITY CERTIFICATE OF SRI. ABOOBACKER T.M DATED 15.1.2010 Annexure A8 A TRUE COPY OF THE RELEVANT PAGES OF THE ORDER NO. 6185/AD/A1/2023/MGU DATED 1.6.2023 Annexure A9 TRUE COPY OF THE DISABILITY CERTIFICATE OF SRI. AJITHKUMAR V ISSUED BY THE GENERAL HOSPITAL, CHANGANASSERY DATED 25.2.2015 Annexure A10 A TRUE COPY OF THE OFFICE MEMORANDUM NO. 41-

                    01/2024-DD-III (CN: 37325) DATED 08.11.2024
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APPENDIX OF WA 382/2025

PETITIONER'S ANNEXURES

Annexure - 1        CERTIFIED COPY OF THE INTERIM ORDER IN
                    W.P.(C) NO. 39733 OF 2023 DATED 02.04.2024
Annexure - 2        COPY OF THE OFFICE MEMORANDUM OF MINISTRY OF
                    SOCIAL JUSTICE & EMPOWERMENT

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