Case Title:
The State of Kerala & Ors. V. Leesamma Joseph
Date of Order:
June 28, 2021
Bench:
Hon’ble Justice Sanjay Kishan Kaul and Justice R. Subhash Reddy
Parties:
Appellant–The State of Kerala & Ors
Respondent – Leesamma Joseph
Subject
The bench of Justices Sanjay Kishan Kaul and R. Subhash Reddy was hearing an appeal filed by the State of Kerala against a judgement of the Kerala High Court granting the right of reservation in promotions for people with disabilities.
Important provisions
Sections 32,33& 47 - The Right of Persons with Disabilities Act, 1995
Overview
- The matter was regarding the right of promotion under the 1995 Act, regarding which she succeeded before the High Court of Kerala in terms of the order dated 9th March 2020.
- The respondent did not succeed in a claim before the Kerala Administrative Tribunal which dismissed her application, but the said judgement was set aside by the impugned order.
- Leave was granted to examine the legal issue and the court appointed Mr Gaurav Agarwal as Amicus Curiae.
Issues raised
- Whether the 1995 Act mandates reservation in promotions for persons with disabilities
- Whether reservation under Section 33 of the 1995 Act is dependent upon identification of posts as stipulated by Section 32
- Whether in absence of a provision in the rules for reservation in promotion for PwD, whether a promotion can be denied to a PwD
- Whether the respondent can be promoted by giving the benefit of reservation as she is a PwD, despite the fact that she was not appointed in the PwD quota
Arguments by the Appellant
- It was pleaded that though the court had held in Siddaraju v. State of Karnataka & Ors [ 2020 3 SCALE 99] that Section 32 and 33 of the 1995 Act mandated 3-4 per cent reservation for PwD, it cannot be interpreted to mean that it would extend even to promotions
- Appellant submitted that though the respondent suffered physical disability, she was not appointed via a recruitment process under the 1995 Act, but on compassionate grounds of the demise of her brother, and thus cannot claim the right to reservation
- The government had previously issued several orders that provided 3-4 per cent reservation as per the 1995 Act in appointment matters.
SUBMISSIONS OF THE AMICUS CURIAE
- Mr. Gaurav Agrawal, learned Amicus Curiae, took the court through conspectus of legal pronouncements dealing with the aspect of reservation in promotion of the 1995 Act
- The learned Amicus Curiae submitted that he had examined the records of Siddaraju v. State of Karnataka & Ors [ 2020 3 SCALE 99] and submitted that it is not concerned with the issue arising in the case at hand.
- An exhaustive written note setting forth the judicial pronouncements with 4 issues was submitted.
Judgement Analysis
- The court while examining the purpose behind the said provisions of the Act including Section 47 held that it would amount to negation of the legislative mandate if promotion is denied to PwD.
- The court while relying on its judgement in Government of India & Anr v. Ravi Prakash Gupta & Anr [ (2010) 7 SCC 626] accepted that it was never the intention of the legislature that Section 32 would be used to frustrate benefits under Section 3, and mandated that identification of posts in every establishment is required until exempted under Section 33.
- The court had done extensive reading and interpretation of Section 20 of the Act read with Section 2(y) in the case of Vikash Kumar v. Union Public Service Commission [2021(2) SCALE 468] wherein the expression “reasonable accommodation” was interpreted as an aspect provided by the government establishments to ensure that PwD enjoys and exercise their rights equally with others. This judgement of the court was upheld.
- The Court held that mode of entry in service cannot be a ground to make out a case of discriminatory promotion, as such discrimination would violate the constitution of India.
Conclusion
The Hon’ble Judges were of the view that the High Court order was salutary and does not require any interference. The court issued directions to the State of Kerala to implement the judgement and provide reservation in promotion in all posts after identifying such posts with a period of 3 months.
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