The State Of Kerala vs Leesamma Joseph on 28 June, 2021


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Supreme Court of India

The State Of Kerala vs Leesamma Joseph on 28 June, 2021

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, Krishna Murari

                                                           1

                                                                                                   Reportable

                                           IN THE SUPREME COURT OF INDIA

                                              CIVIL APPELLATE JURISDICTION

                                              CIVIL APPEAL NO. 59 OF 2021




                         THE STATE OF KERALA & ORS.            ...                   APPELLANT(S)


                                                               VERSUS
                         LEESAMMA JOSEPH ….                                          RESPONDENT



                                                       JUDGMENT

SANJAY KISHAN KAUL, J.

1. The international awakening to further the rights and equal

opportunities to persons with special abilities (hereinafter referred to as

‘PWD’) propelled the adoption of the Proclamation on the Full

Participation and Equality of People with Disabilities in the Asian and

Pacific Region in the meeting of the member states of the Economic and

Social Commission for Asia and the Pacific held in Beijing in December,

1992; to which India was a signatory. In furtherance of its international

commitments, The Persons with Disabilities (Equal Opportunities,

Protection of Rights and Full Participation) Act, 1995 (hereinafter referred

to as “the 1995 Act”) was enacted which came into force on 7 th February,

1996. In 2007, India ratified the United Nations Convention on the Rights

of Persons with Disabilities (UNCRPD). In pursuance to the debates in the
Signature Not Verified

Digitally signed by
Charanjeet kaur
Date: 2021.06.28
18:07:20 IST
Reason: Standing Committee of the Parliament, The Rights of Persons with
2

Disabilities Act, 2016 (hereinafter referred to as “the 2016 Act”) replaced

the 1995 Act.

2. The issue debated before us in the present proceedings is the right

of promotion under the 1995 Act, as claimed by the respondent, in which

she succeeded before the High Court of Kerala in terms of the impugned

order dated 9th March, 2020. The respondent did not succeed in a claim

before the Kerala Administrative Tribunal which dismissed her application

by order dated 27th February, 2015 but the said judgment was set aside

by the impugned order.

3. On 7th January, 2021, we had noted the submission of learned

counsel for the appellants that the respondent was given employment on

compassionate ground and thus the entry point was not of a person with

disability under the 1995 Act. In view thereof, a submission was made

that such a person cannot claim reservation in matters of promotion as it

will affect the other general candidates. We were of the view that the

issue required examination, but since the respondent had retired and it

was only the issue of her financial benefits, we declined to interfere with

the relief granted by the High Court vide the impugned order. Thus, no

notice was required to be issued to the respondent. Leave was granted to

examine the legal issue and we appointed Mr. Gaurav Agrawal as Amicus

Curiae to assist the Court, since the respondent would be unrepresented

before us.

4. The facts relating to the respondent are not really necessary to be

recorded in detail, except to note that she was appointed in 1996 to the

post of Typist/clerk in the Police Department on compassionate grounds,

after her brother had passed away during service. She undisputedly
3

suffered from Post Polio Residual Paralysis (L) Lower Limb and her

permanent disability had been assessed at 55%. The respondent

subsequently cleared all departmental tests for promotion, and was test

qualified in December, 1998. She was given a category change to Lower

Division clerk in July, 2001 without losing her seniority and later on

promoted as Senior Clerk (equivalent to Upper Division Clerk) on 16 th

September, 2004, based on the seniority list of test qualified LDCs. She

was thereafter promoted to the post of a Cashier on 5 th May, 2015. The

issue which had been raised by the respondent was that she was entitled

to promotion as a Senior Clerk with effect from 1 st July, 2002 with all

consequential benefits and as a Cashier with effect from 20 th May, 2012

with all consequential benefits and thereafter as Junior Superintendent

with effect from the date of her entitlement. This plea was predicated on

reservation in matters of promotion which she sought under the 1995 Act

as she suffered from physical disability.

VIEW OF THE TRIBUNAL

5. The aspect of employment under the 1995 Act has been dealt

with in Chapter VI. Section 32 mandates identification of posts which

can be reserved for persons with disabilities (PwD) while Section 33

provides for reservation of posts. The provisions read as under:

“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 update 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
4

persons with disability of which one per cent each shall be
reserved for persons suffering from-

(i) blindness of 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.”

6. On a reading of Section 33, the Tribunal observed that it only

provided for reservation of not less than 3% for persons or class of PwD

but did not provide for reservation in promotion. Section 32 mandating

identification of posts was noticed by the Tribunal and the government

order issued thereunder limited the reservation only in matters of direct

recruitment through the Public Service Commission. The Promotion was

once again an aspect not provided for.

7. The Tribunal took into account the judgment of this Court in Union

of India vs. National Federation of the Blind1 to opine that the issue

dealt with thereunder was whether 3% reservation was to be applied in

reference to vacancies in a particular post arising from time to time, or

the cadre strength of that post. In that context, it was opined by this

Court that reservation was to be applied with reference to vacancies. The

absence of any observations regarding reservation in promotion was

noticed. The judgment of the Bombay High Court in National

Confederation for Development of Disabled and Anr. vs. Union of

India and Ors.2 which directed benefit of reservation in matters of

promotion was also examined; but it was opined that the rules of

1 (2013) 10 SCC 772.

2 2015 SCC OnLine Bom 5112.

5

Recruitment in the State of Kerala, General Rules and other orders issued

by the Government under Section 32 of the 1995 Act did not provide for

any reservation in promotions. Thus, the application before the Tribunal

was dismissed.

VIEW OF THE KERALA HIGH COURT

8. The High Court succinctly set forth a question of law as to whether

persons having physical disability could be granted reservation in

promotion. In this regard, the judgment of this Court delivered

subsequently in Rajeev Kumar Gupta and Others vs. Union of India

and Ors.3 was taken note of to the effect that reservation would be

applicable even in promotion. Another Bench of this Court had referred

the matter to a larger Bench in this behalf on the question of whether the

dicta would go against the decision in Indra Sawhney and Ors. vs.

Union of India and Ors. 4 The matter was resolved in Siddaraju vs.

State of Karnataka & Ors.5 wherein it was affirmed that such

reservation was applicable in promotions and the ratio of Indra

Sawhney’s case (supra) was distinguished. The High Court thus set

aside the order of the Tribunal and granted relief to the respondent.

CASE OF THE APPELLANTS

9. A threefold submission was made before us on behalf of the

Appellant-State:

3 (2016) 13 SCC 153.

4 1992 Supp (3) SCC 217.

5 2020 3 SCALE 99.

6

a. In Siddaraju’s case (supra) it was opined that Sections 32 and 33 of

the 1995 Act mandated that 3-4 per cent of the posts identified by the

government were to be reserved for appointment of persons suffering

from physical disabilities. It was pleaded that this cannot be

interpreted to mean that such a reservation would extend even to

promotions.

b. Though undoubtedly the respondent suffered from physical disability,

she was not appointed through a recruitment process under the 1995

Act, but was appointed on compassionate grounds on the demise of

her brother- a different channel of recruitment. It was thus submitted

that she could not claim any right to reservation in promotion under

the 1995 Act.

c. The government had issued several orders providing 3-4 per cent

reservation as per the 1995 Act in matters of appointment.

SUBMISSIONS OF THE AMICUS CURIAE

10. Mr. Gaurav Agrawal, learned Amicus Curiae, took us through the

conspectus of the legal pronouncements dealing with the aspect of

reservation in promotion under the 1995 Act, and the consequences of

the repeal of that Act on the enactment of 2016 Act. In this behalf, we

may note that the State Government, on perusal of the written note of

arguments of the learned Amicus Curiae, sought to draw our attention to

the factum of filing of MA No. 2171/2020 for clarification of the judgment

in Siddaraju’s case (supra) and pleaded for the result of the

application to be awaited. However, on the other hand, the learned

Amicus Curiae submitted that he had examined the record of that case

and the issue involved therein is not concerned with the issue arising in
7

the present case. We may note Section 34 of the 2016 Act which reads

as under:

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
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
8

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.”

11. The material aspect is the proviso inserted stipulating that

reservations in promotions shall be in accordance with such instructions

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 24 th

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?

9

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

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.

10

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 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:

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.

9 (2015) 13 SCC 643.

11

“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
12

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 & 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
13

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 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:

10 2021 (2) SCALE 468.

14

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 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
15

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 1 st July, 2002 and further to the post

of Cashier with effect from 20 th 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
16

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
17

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-

11 2019 SCCOnline P&H 2710.

12 Civil Appeal No. 6092/2019.

13 W.P. No. 126/2015 – judgment dated 29.11.2016
18

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, 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 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

14 A case before the Chief Commissioner for Persons with Disabilities (Divyangjan), Govt.
of India
19

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.

…………………………….…..J.

[SANJAY KISHAN KAUL]

…………………………….…..J.

[R. SUBHASH REDDY]

NEW DELHI;

JUNE 28, 2021.



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