THE STATE OF KERALA & ORS. versus LEESAMMA JOSEPH

Citation: [2021] 3 S.C.R. 576 · Decided: 28-06-2021 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

cites 3 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
576
SUPREME COURT REPORTS
[2021] 3 S.C.R.
THE STATE OF KERALA & ORS.
v.
LEESAMMA JOSEPH
(Civil Appeal No. 59 of 2021)
JUNE 28, 2021
[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995: ss.32, 33, 47 – Reservation
in promotion – Held: ss.32, 33 and 47 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 only to the initial stage of
induction in service – This would in fact result in stagnation of the
disabled in a consequential frustration – 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 – 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.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995: s.33 – Whether reservation
under s.33 of the 1995 Act is dependent upon identification of posts
as stipulated by s.32 – Held: It was never the intention of the
legislature that the provisions of s.32 would be used as a tool to
frustrate the benefits of reservation under s.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  – What is required is
identification of posts in every establishment until exempted under
proviso to s.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.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995: s.32 – In absence of a
[2021] 3 S.C.R. 576
576
A
B
C
D
E
F
G
H
577
provision in the Rules for reservation in promotion for PwD, whether
promotion can be denied to a PwD – No doubt, the mandate of s.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.
Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995: 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 –  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.
Dismissing the appeal, the Court
Held: 1. Whether the 1995 Act mandates reservations in
promotions for persons with disabilities?
1.1 Section 32, 33 and 47 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. [Para 14][589-B-C]
1.2 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
THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH
A
B
C
D
E
F
G
H
578
SUPREME COURT REPORTS
[2021] 3 S.C.R.
to be filled by direct recruitment

Excerpt shown. Read the full judgment & AI analysis in Lexace.