Kerala High Court
Jomy Joseph vs State Of Kerala on 17 March, 2022
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
W.P.(C) No.8126 /2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TH
THURSDAY, THE 17 DAY OF MARCH 2022 / 26TH PHALGUNA, 1943
WP(C) NO. 8126 OF 2020
PETITIONER/S:
1 JOMY JOSEPH,
AGED 34 YEARS,
S/O. JOSEPH VADASSERY,SENIOR ASSISTANT, KANNUR UNIVERSITY,
FINANCE DEPARTMENT, THAVAKKARA, KANNUR, RESIDING AT
VADASSERY HOUSE, KANICHUR P.O., KELAKAM (VIA) KANNUR
DISTRICT-670 674.
2 SHYJU.V.,
AGED 35 YEARS,
S/O. RAJAN.A., SENIOR ASSISTANT, KANNUR UNIVERSITY
THAVAKKARA CAMPUS, KANNUR, RESIDING AT VADAKKEYIL VEEDU,
PATIAM OTTACHIMUOOR, POOKODU (PO)-670 691.
3 NISHAD MADATHIL,
AGED 32 YEARS,
S/O. AMMAD, SENIOR ASSISTANT, ACADEMIC BRANCH, KANNUR
UNIVERSITY, THAVAKKARA CAMPUS, KANNUR, RESIDING AT MADATHIL
HOUSE, VILATHAPURAM, KUNINGAD P.O., PIN-673 503.
BY ADVS.
SHAMEENA SALAHUDHEEN
SMT.R.SHABANA
RESPONDENT/S:
1 STATE OF KERALA
REP BY SECRETARY TO GOVT. DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 KANNUR UNIVERSITY
REP BY ITS REGISTRAR, THAVAKKARA, KANNUR, KERALA-670 002.
3 THE REGISTRAR,
KANNUR UNIVERSITY, THAVAKKARA, KANNUR, KERALA-670 002.
4 THE VICE-CHANCELLOR,
KANNUR UNIVERSITY, THAVAKKARA, KANNUR, KERALA-670 002.
W.P.(C) No.8126 /2020 2
5 SMT.GAYATHRI DEVI.R.S.,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR, RESIDING AT GAYATHRI HOUSE,
KOYILANDI, KOZHIKODE-673 306.
6 SRI.ZENITH.O.,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
7 SMT. USHUS LAKSHMI.V.
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
8 SRI.ANIL KUMAR.K.V.,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
9 SRI.RANJITH.K.C.,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
10 SRI.SATHEESAN.P.T.,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
11 SRI. SMIJESH.V.M.,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
12 SMT. BINDHU KULINJEEL,
ASST. SECTION OFFICER, KANNUR UNIVERSITY CAMPUS,
THAVAKKARA, KANNUR-670 002.
BY ADVS.
SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY
SRI I V PRAMOD, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 17.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.8126 /2020 3
"CR"
JUDGMENT
The petitioners herein are working as Senior Assistants in the Kannur University, the 2nd respondent herein. They contend that they belong to the 'differently abled' category and all of them are having benchmark disability of more than 40%. They have approached this Court being aggrieved by the refusal on the part of the University in granting promotion to the petitioners and in overlooking their claims.
2. Though notice was issued to the party respondents and the same was served, there is no appearance.
3. I have heard Smt. Shameena Salahudeen, the learned counsel appearing for the petitioners, Sri. I.V. Pramod, the learned counsel appearing for the Kannur University and Smt. Anima, the learned Senior Government Pleader.
4. It is submitted by Smt.Shameena Salahudeen, the learned counsel, by relying on the judgement of the Apex Court in Siddaraju v. State of Karnataka and others [2020 (1) KHC 609] that the judgment of the Apex Court in Rajeev Kumar Gupta and Others v. Union of India and Others [(2016) 13 SCC 153] was doubted by another Bench and it was referred to a Larger Bench of the Apex Court. One of the issues raised for consideration was whether persons with disabilities can be given W.P.(C) No.8126 /2020 4 reservation in promotion as held by the Apex Court in Rajeev Kumar Gupta (supra) and whether the same would be against the law laid down in Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217]. After considering the entire issue, the Apex court answered the reference by stating that the 2013 judgment, as clarified in National Federation of the Blind v. Sanjay Kothari, Secretary, Department of Personnel and Training [2015 (9) Scale 611] and the judgment in Rajeev Kumar Gupta (supra) will bind the Union and the State Governments and must be strictly followed. It was thus affirmed that reservation is also applicable to promotions.
5. The learned counsel would also contend that a Division Bench of this Court in O.P.(KAT)No.286 of 2015 had occasion to observe as follows:
"The only issue arising in the above case is as to whether the persons having a physical disability could be granted reservation in promotion also. The decision in Rajeev Kumar Gupta and Others v. Union of India and Others [(2016) 13 SCC 153] held that such reservation would be applicable for promotions also. Later, another Division Bench referred the matter to a Larger Bench expressing an opinion that this could go against the Larger Bench decision in Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217]. A three Judge Bench in Siddaraju v. State of Karnataka and Others [2020 (1) KHC 609] affirmed that such reservation is applicable to promotions.................."W.P.(C) No.8126 /2020 5
6. The petitioners contend that they had submitted Exhibits P3 and P4 representations before the Authorities seeking implementation of the directions issued in Siddaraju (supra). However, the respondents refused to heed the said request.
7. Eight posts of Assistant Section Officers fell vacant during different dates in the year 2019 which led the petitioners to submit Exhibit P5 representation before the respondents. Ignoring the request made by the petitioners, the respondents granted promotion to the respondents 5 to 12 by Exhibit P6 order. It is in the afore circumstances that the petitioners are before this Court seeking the following reliefs:
i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 4 to grant promotion to the Petitioners as Assistant Section Officers.
ii) Declare that the respondents 1 to 4 are bound to Implement Ext.P2 Judgment of the Hon'ble Supreme Court and grant reservation to the differently-abled candidates in promotions also.
iii) Set aside Ext.P6 to the extent of not including the petitioners and direct the official respondents to redraw Ext.P6 by including the petitioners."
8. I have considered the submissions advanced and have perused the records.
9. The materials placed before this Court reveal that the petitioners have all joined as Assistants in the year 2016 under the W.P.(C) No.8126 /2020 6 physically disabled quota. The 1st petitioner is having 45% locomotor disability whereas the 2nd and 3rd petitioners are suffering from hearing disability fixed as 50% and 40% respectively. Ext.P1 would reveal that they have passed the Account Test and the Secretarial Manual and they were granted promotion as per Ext.P1 order dated 24.9.2019 with effect from 12.12.2018 and 16.11.2018 respectively. The promotion post to which the petitioners can aspire is to the post of Assistant Section Officer for which, the eligibility prescribed as per the Statutes is the completion of the period of probation in the post of Senior Grade Assistant and existence of vacancies in the post of Assistant Section Officer. The petitioners are therefore qualified and eligible for promotion to the post of Assistant Section Officers.
10. From the submissions advanced by the learned Standing Counsel appearing for the Kannur University, it appears that they are waiting for orders issued by the appropriate Government and as the rules do not provide for reservation in promotion, they are unable to accede to the request.
11. The Right of Persons with Disabilities Act, 2016 came into force on 19.4.2017. Section 33 provides for identification of posts for reservation and Section 34 deals with the reservation. The relevant statutory provisions are extracted below for convenience. W.P.(C) No.8126 /2020 7
"33. Identification of posts for reservation.--
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) 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."
12. In view of Section 33 of the Act, the appropriate Government was required to identify the posts in the establishment which can be held by the respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34. The appropriate Government was statutorily mandated to constitute an Expert Committee with the representation of persons with benchmark disabilities for identification of such posts and undertake periodic review of the identified posts at an interval not exceeding three years.
Section 34 provides for Reservation, which reads as follows:
" 34. Reservation.--
(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of W.P.(C) No.8126 /2020 8 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 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 W.P.(C) No.8126 /2020 9 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"
13. In Justice Sunanda Bhandare Foundation v. Union of India and Another [2017 (14) SCC 1], the Hon'ble Supreme Court, while depreciating the lethargy on the part of the appropriate Government and other institutions in implementing the 1995 Act, observed that beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy. The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement the same. The Governments were ordered to be proactive in the matter of providing relief to those who are differently-abled and it was observed that the approach and attitude of the executive must be liberal and relief oriented and not obstructive or lethargic. A little concern for this class who are differently-abled can do wonders in their life and help them stand on their own and not remain on the mercy of others. Directions were issued to the States and the Union Territories to file compliance report before the W.P.(C) No.8126 /2020 10 Apex Court after reminding them that when the law is so concerned for the disabled persons and makes provisions for the same, it is the obligation of the law executing authorities to give effect to the same in promptitude.
14. In tune with the directions issued by the Apex Court, the Government of Kerala by G.O.(P) No. 18/2018/SJD dated 18.11.2018 providing for 4% reservation as per the provisions of the Right of Persons with Disabilities Act, 2016 and ensuring 3% reservation as per the provisions of Persons with Disabilities Act, 1995 in Aided Schools and Aided Colleges including Professional Colleges. The order is extracted below for easy reference.
GOVERNMENT OF KERALA Abstract Social Justice Department- Reservation for Persons with Disabilities Providing 4% reservation as per the provisions of Rights of Persons with Disabilities Act 2016 and ensuring 3% reservation as per the provisions of Persons with Disabilities Act 1995 in aided schools and aided colleges including professional colleges- Orders issued. ============================== === SOCIAL JUSTICE (D ) DEPARTMENT G.O.(P)No.18/2018/SJD Dated, Thiruvananthapuram, 18/11/2018. ========================== ==== === Read 1. GO(P) No : 20/1998/P&ARD dated 14/07/1998
2. GO(P) No : 50/2007/ SWD dated 15.9.2007
3. GO(P) No : 31/2008/SWD dated 19/05/2008 W.P.(C) No.8126 /2020 11
4. GO(P) No : 46/2008/ SWD dated 19/07/2008
5. GO(P) No : 61/2012/ SWD dated 17/10/2012
6. GO(P)No: 1/2013/SJD dated 3/1/2013
7. GO(P) No : 30/2013/SJD dated 4/4/2013
8. GO(P)No: 1/2015/SJD dated 5/1/2015
9. GO(P)No : 18/2017/SJD dated 14/9/2017 ORDER As per section 33 of Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995, every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of Persons with Disability of which 1% 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. And as per section 2(k) of Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act 1995, establishment means a corporation established by or under a Central, Provincial or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956), and includes Departments of a Government.
2. As per the Government Order read as 1st paper above Government had introduced a scheme for reserving 3% vacancies in Class III, Class IV posts in Public Services for appointment from Persons with Disabilities as envisaged in section 33 of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995. As per this scheme the District Collector was the Chairman of the selection committee for the appointment of Persons with Disabilities. As per Government Order read as 2nd paper above Government entrusted the selection process of Persons with Disabilities to 3% vacancies in all classes earmarked for them to Kerala Public Service Commission with effect from 1.1.2004. But the modalities of appointment and turn of Persons with Disabilities were fixed only as per G.O read as 4th paper above. Accordingly Kerala Public Service Commission started the selection process of Persons W.P.(C) No.8126 /2020 12 with Disabilities.
3. The 3% reservation in appointments in aided schools and aided colleges were not ensured from 7.2.1996, the date in which Persons with Disabilities Act 1995 came into force, as the appointments were not made through Kerala Public Service Commission or through the selection committee chaired by the District Collectors.
4. The Rights of Persons with Disabilities Act 2016 came into force on 19.4.2017. As per section 34 (1) of Rights of Persons With Disabilities Act 2016 , "Every appropriate Government shall appoint in every Government establishment, not less than four percent 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 percent 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.
5. As per Section 2(k) of the Act, a "Government Establishment"
is defined as a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 (18 of 2013) and includes a Department of the Government.
6. The Government examined the matter in detail and are pleased to extend the provisions of section 2(k) of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act 1995 and Rights of Persons with Disabilities Act 2016 to all educational institutions getting Government aid such as staff salary and other allowances, maintenance grant etc. with effect from 7.2.1996. The following instructions should be given to all appointing authorities of such aided institutions by the concerned Administrative W.P.(C) No.8126 /2020 13 Departments immediately.
i) To ensure 3% reservation of the total number of vacancies in the cadre strength in appointments in aided schools and aided colleges including professional colleges to the posts which are identified as suitable for persons with disabilities and issued vide Government Orders read as 5th to 9th papers above, with effect from 7.2.1996 and to fill the backlog from 7.2.1996 to 18.4.2017 as per the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 with immediate effect.
ii) To provide 4% reservation of the total number of vacancies in the cadre strength in appointments in aided schools and aided colleges including professional colleges to the posts which are identified / to be identified as suitable for persons with disabilities with effect from 19.04.2017 as per the provisions of Rights of Persons with Disabilities Act 2016.
(By order of the Governor) BIJU PRABHAKAR IAS SPECIAL SECRETARY
15. By the above order, the Government has extended the provisions of Section 2(k) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Right of Persons with Disabilities Act, 2016 to all educational institutions getting Government aid such as staff salary and other allowances, maintenance grant etc. with effect from 7.2.1996. Directions were also issued to all Authorities of such Aided Institutions to provide 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided W.P.(C) No.8126 /2020 14 Schools and Aided Colleges including Professional Colleges.
16. Following the above order, the Government has issued G.O. (M.S) No. 96/2021/HEDN dated 15.2.2021, ordering that the Government order dated 18.11.2018 extracted would be applicable to all appointments made in Private Aided Arts & Science Colleges in the State.
17. In view of the legislative mandate and the orders passed by the Government, Kannur University, being an establishment as defined under the Act, is legally bound to fill up 4% of the total number of vacancies from the category of disabled persons under the provisions of Act 49 of 2016.
18. The next question is whether reservations for PwD can be applied for promotions. In State of Kerala v. Leesamma Joseph [2021 (9) SCC 208], the question was whether the right of promotion can be claimed under the 1995 Act. The facts were that Leesamma was not initially appointed in the quota for Persons with Disabilities in the feeder cadre. While in service, she acquired a disability. She contended that she is identically placed as others in the PwD cadre. A Division Bench of this Court, after considering the law laid down in Siddaraju (supra) held that reservation would be applicable even in promotion. The State went up in appeal before the Hon'ble Supreme Court. It was held that the legislative mandate is that equal opportunity should be provided for career W.P.(C) No.8126 /2020 15 progression including promotion and that it would be the negation of the legislative mandate if promotion is denied to the PwD and such reservation is confined to the initial stage of induction in service. While answering the question of whether the 1995 Act mandates reservation in promotions for persons with disabilities, it was held in paragraphs No. 15 to 20 as follows:
15. The legislative mandate has to be understood in the aforesaid context as it provides for equal opportunity for career progression, including promotion. Thus, it would be negation of the legislative mandate if promotion is denied to PwD and such reservation is confined to the initial stage of induction in service.
This would in fact result in stagnation of the disabled in a consequential frustration. [ This was held in Viklang Sangh v. State of Haryana, 2011 SCC OnLine P&H 4266 as the State of Haryana did not provide for reservation in promotion to PwD in Class III and Class IV posts.]
16. The operation of reservation and the computation has to be made with reference to the total number of vacancies in the cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion."
17. The last aspect submitted in this behalf is that the reservation could be granted to PwD if : (i) the Rules provide for promotion from the feeder cadre to the promotional posts; and
(ii) posts are identified in the promotional cadre, which are capable of being filled up with persons with disability. [ This is how the Bombay High Court in Ravindra v. Union of India, 2020 SCC OnLine Bom 771 has interpreted the judgments of this Hon'ble Court in Rajeev Kumar Gupta, (2016) 13 SCC 153 and Siddaraju v. State of Karnataka, (2020) 19 SCC 572]
18. On examination of the aforesaid plea we find that there is merit in what the learned Amicus Curiae contends and we are of the view that really this issue is no more res integra in view of the judgments of this Court in Union of India v. Ravi Prakash Gupta [Union of India v. Ravi Prakash Gupta, (2010) 7 SCC 626] and Union of India v. National Federation of the Blind [Union of India v. National Federation of the Blind, (2013) 10 SCC 772] opining that reservation has to be computed with reference to the total number of vacancies in the cadre strength and no distinction can be made between the posts to be filled by direct recruitment and by promotion. Thus, total number of vacancies W.P.(C) No.8126 /2020 16 in the cadre strength would include the vacancies to be filled in by nomination as well as by promotion. In fact, this was the view adopted by the Bombay High Court discussed aforesaid in National Confederation for Development of Disabled v. Union of India [National Confederation for Development of Disabled v. Union of India, 2015 SCC OnLine Bom 5112] with the challenge raised to the same in a SLP being rejected in Union of India v. National Confederation for Development of Disabled [Union of India v. National Confederation for Development of Disabled, (2015) 13 SCC 643]. We may note the observations in Rajeev Kumar Gupta v. Union of India [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153] in para 24 to the effect : (Rajeev Kumar Gupta case [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153] "24. ... 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." (emphasis supplied) and a direction was issued to the Government to extend 3% reservation to PwD in all identified posts in Group A and Group B "irrespective of the mode of filling up of such posts".
19. The learned Amicus Curiae has rightly pointed out the two preliminaries for operationalising the said provision i.e. there has to be rules providing for promotion from the feeder cadre to the provisional post as there cannot be promotions even for the PwD dehors the rules as a singular benefit. The requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre.
20. In our view, the aforesaid should put at rest the controversy insofar as the mandate of the 1995 Act qua promotion is concerned.
19. It was held that the legislative mandate provides for equal opportunity for career progression, including promotion. Placing reliance on Union of India v. Ravi Prakash Gupta, (2010) 7 SCC 626] and Union of India v. National Federation of the Blind, (2013) 10 SCC W.P.(C) No.8126 /2020 17 772] reservation has to be computed with reference to the total number of vacancies in the cadre strength and no distinction can be made between the posts to be filled by direct recruitment and by promotion.
20. One of the questions posed in Leesamma (supra) was whether, in the absence of provisions of Rules for reservation in promotion for PwD, promotion can be denied. The said question was answered thus in paragraph No. 22 of the judgment.
22. The aforesaid issue was raised by the 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 cadres 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 [Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153] and Siddaraju [Siddaraju v. State of Karnataka, (2020) 19 SCC 572] cases.
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 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.
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26. A reading of the aforesaid provisions shows that non-discrimination in employment is a mandate of the legislature. In the context of sub-section (2) of Section 20, where the expression used is "reasonable accommodation" as an aspect to be provided by the Government establishments, this expression has been defined in Section 2(y) to mandate necessary and appropriate modifications and adjustments to ensure that the PwD enjoy or exercise their rights equally with others.
27. We see no reason why a clue cannot be taken from such a line of interpretation and reasoning to carry out the intent of the legislation. Even under the 1995 Act, the rights of PwD, and how they would attain an equal opportunity has been an ongoing exercise blocked by a greater impediment of a social mindset change and the 2016 Act is the result thereof.
21. The Apex Court in the context of Section 32 of the 95 Act, (Section 33 of the 2016 Act) held that the provisions of the Act enjoin the Government to identify posts that can be filled up with persons with disability and even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. It was held that identification of posts is no doubt a prerequisite for reservation in promotion for PwD. However, no methodology can be used to defeat the reservation in promotion. 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 which was the mandate of the Apex Court in Rajeev Kumar Gupta and Siddaraju. Only in those cases that the Government is of the view that the posts in the promotional cadres cannot be reserved for the PwD category due to functional or other reasons, the same cannot be used as a ruse to defeat the reservation in W.P.(C) No.8126 /2020 19 promotion. Finally, the Apex Court had directed the State of Kerala to implement the directions in the earlier judgments and to provide reservation in all posts after identifying such posts within a period of three months from the date of judgment. In view of the above, under no circumstances can a methodology be adopted to defeat the right of a person with a disability to have a reservation in promotion.
Resultantly, the petitioners are entitled to succeed. Respondents 1 to 4 are directed to initiate expeditious steps to implement the directions issued by the Apex Court in Siddaraju (supra) and Leesamma (supra) and grant reservation in promotion to persons with disabilities such as the petitioners. The respondents shall within a period of six weeks from today implement the directions and grant promotion to the petitioners if they are so entitled in terms of the Act of 2016 and the principles laid down in the judgments referred to above.
Sd/-
RAJA VIJAYARAGHAVAN V, JUDGE DSV W.P.(C) No.8126 /2020 20 APPENDIX OF WP(C) 8126/2020 PETITIONER (S) EXHIBITS :
EXHIBIT P1 A TRUE COPY OF THE ORDER NO.AD.A/AD
A3/21522/2018 DATED 24.09.2019 ISSUED BY THE
3RD RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE
SUPREME COURT IN SIDDARAJU VS STATE OF
KARNATAKA AND OTHERS (CIVIL APPEAL
NO.1567/2017) DATED 14.1.2020.
EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 1ST PETITIONER DATED 24.01.2020.
EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE 2ND PETITIONER DATED 24.01.2020.
EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONERS DATED 31.01.2020.
EXHIBIT P6 A TRUE COPY OF THE ORDER NO.AD.A/AD
A3/21522/2018 DATED 18.2.2020.
EXHIBIT P7 A TRUE COPY OF THE ORDER NO.AD.A/AD.
A3/21522/2018 DATED 19.12.2020 ISSUED BY THE
2ND RESPONDENT.