THE STATE OF KERALA & ORS. versus LEESAMMA JOSEPH

11. The material aspect is the proviso inserted stipulating that reservations in promotions shall be in accordance with such instructions THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH [SANJAY KISHAN KAUL, J.] as are issued by the appropriate government from time to time. M.A. No. 2171/2020 has been filed for clarification in view of the proviso, seeking the view of the Court as to how that would operate and from which date. The earstwhile Section 33 of the 1995 Act did not have such a provision. The reason why this clarification was not relevant was noted by us on 24th March, 2021. It was explained that since the present case was admittedly governed by the provisions of 1995 Act; and the main issue arising for consideration is whether the respondent having been given employment on compassionate grounds and not having entered service under the 1995 Act, was entitled to claim promotion under that Act. The plea of the State was that since the rules of the appellant- State did not provide for any reservation in promotion to people who are governed by the 1995 Act, the same was not permissible.

12. Mr. Gaurav Agrawal, learned Amicus Curiae, submitted an exhaustive written note setting forth the judicial pronouncements and set out four issues which would arise for consideration. We now proceed to discuss each of the four aspects hereinafter: I. Whether the 1995 Act mandates reservations in promotions for persons with disabilities?

13. A broad aspect sought to be submitted before us is that Sections 32 and 33 of the 1995 Act had to be interpreted in juxtaposition and consonance with Section 47 of that Act which reads as under: "47. Non-discrimination in Government employment. — (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall he denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

14. 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.6

15. 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.

16. 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.7

17. On examination of the aforesaid plea we find that 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 judgment of this Court in Government of India & Anr. vs. Ravi Prakash Gupta & Anr.8 and Union of India vs. National Federation of the Blind (supra) opining that reservation has to be computed with reference to 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 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 6 This was held in Viklang Sang Haryana vs, 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 IV posts. 7 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 (supra) and Siddaraju (supra). 8 (2010) 7 SCC 626. THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH [SANJAY KISHAN KAUL, J.] aforesaid in National Confederation for Development of Disabled and Anr. vs. Union of India and Ors. (supra) with the challenge raised to the same in a SLP being rejected in Union of India vs. National Confederation for Development of Disabled & Anr.9. We may note the observations in Rajeev Kumar Gupta and Others vs. Union of India and Others (supra) in paragraph 24 to the effect: "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" 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". 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 de hors 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.

18. In our view, the aforesaid should put at rest the controversy insofar as the mandate of 1995 Act qua promotion is concerned. II. Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32?

19. 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 9 (2015) 13 SCC 643. same. In Government of India & Anr. vs. Ravi Prakash Gupta & Anr. (supra) also, this 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 vs. 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?

20. 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).

21. 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 THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH [SANJAY KISHAN KAUL, J.] 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.

22. 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.

23. In the recent judgment of this Court in Vikash Kumar vs. Union Public Service Commission10 while dealing with the latter 2016 Act, an expansive interpretation has been given to Section 20 read with Section 2(y). The said provisions read as under: "20. Non-discrimination in employment.- (1) No Government establishment shall discriminate against any person with disability in any matter relating to employment: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. (2) Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No Government establishment shall dispense with or reduce in rank, an employee who acquires a disability during his or her service: Provided that, if an employee after acquiring disability is not suitable for the post he was holding, shall be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary 10 2021 (2) SCALE 468. post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities." "2. Definitions- (y) "reasonable accommodation" means necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others;"

24. 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.

25. 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 mind set change and the 2016 Act is the result thereof. IV. Whether the Respondent can be promoted by giving benefit of reservation as she is a PwD, despite the fact that she was not appointed in the PwD quota?

26. If we may say so, this was the most crucial issue which persuaded us to grant leave in the SLP. The direction in the impugned order was for the respondent to be considered for the promotion based on disability at the time when the claim originally arose, but subject to her seniority with reference to other PwD candidates entitled to such reservation. She was also held entitled to the notional benefits of her promotion from the date she was so found entitled. In the factual context, it has been pointed out by learned Amicus Curiae that the respondent had claimed a promotion to the post of UDC with effect from 1st July, 2002 and THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH [SANJAY KISHAN KAUL, J.] further to the post of Cashier with effect from 20th May, 2012. The endeavour of the Amicus Curiae was to obtain necessary information from the appellant-State and to seek their response. In this behalf, it has been pointed out that The Ministry of Social Justice and Empowerment in the Department of Empowerment of Persons with Disabilities (Divyang), Government of India has undertaken a very comprehensive exercise of identifying posts which can be reserved for PwD and the list of such posts are available on the website. From that it appears that the post of UDC/Cashier would be amenable to reservation for PwD and thus there can be little doubt that the respondent has been capable of discharging functions of the promotional post and thus could not be denied the benefit of reservation (even if Rules do not provide for any reservation in promotion) as repeatedly observed by us that Section 32 of the 1995 Act is to facilitate but not to impede the legislative mandate.

27. 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 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. SOME VIEWS OF THE HIGH COURT

28. Mr. Gaurav Agrawal, learned Amicus Curiae through the note also pointed out different views of the High Court – a. Poonam Manchanda vs. Union of India11 – The Punjab and Haryana High Court while dealing with the case of the petitioner having 70% disability noticed that she had been appointed as Assistant Accounts Officer in 1999 and promoted as Accounts Officer in 2007. On both occasions she did not claim reservation but was considered in general category. The next post was that of Senior Accounts Officer and she claimed promotion on roster No. 1 earmarked for PwD. The Rules did not provide for reservation for PwD in promotion to Group A and Group B posts. The High Court granted relief relying upon Rajeev Kumar Gupta's case (supra) and directed that the petitioner be considered for promotion under 3% reservation provided for PwD. b. Union of India vs. Poonam Manchanda12 – An appeal was filed before this Court was dealt with along with a batch of matters of which judgment was delivered in Siddaraju's case (supra). c. Kamla Chanyal vs. State of Uttarakhand13 – The Uttarakhand High Court once again relying upon the judgment in Rajeev Kumar Gupta's case (supra) quashed an OM to the extent that it ruled out reservation for PwD in Group A and B posts and directed the Government to consider the issue relating to the availability of benefit of reservation to the petitioner therein in the capacity as PwD. We may note that as per the solution of learned Amicus Curiae, the Chief Commissioner for Persons with Disabilities [Divyangjan], Government of India receives a number of complaints regarding non-grant of promotion to PwD in Group A and B posts by denying them benefit of reservation in promotion. In B. Uma Prasad vs. Chief Executive Officer, EPFO14, 11 2019 SCCOnline P&H 2710. 12 Civil Appeal No. 6092/2019. 13 W.P. No. 126/2015 – judgment dated 29.11.2016 14 A case before the Chief Commissioner for Persons with Disabilities (Divyangjan), Govt. of India THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH [SANJAY KISHAN KAUL, J.] the Chief Commissioner noticed that the complainant was not being given reservation in promotion to Group B post and recommended that the respondent may give promotion to persons with benchmark disabilities in all posts, including Group A and Group B posts. CONCLUSION

29. 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 AmicusCuriae. 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.

30. 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.

31. The appeal is accordingly dismissed in terms aforesaid.

32. We record our appreciation for the able assistance rendered by Mr. Gaurav Agrawal, learned Amicus Curiae and note that while submitting his synopsis he was furnished assistance in turn by Mr. S.K. Rungta, learned Senior Counsel and Mr. Archit Verma, Legal Consultant in the office of Chief Commissioner for Persons with Disabilities. Devika Gujral Appeal dismissed.