New Delhi: The Supreme Court Monday reiterated that persons with disabilities (PwD) cannot be denied reservation in promotions in government jobs as it upheld a Kerala High Court order granting the benefit to a woman last year.
A bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy said that identification of posts for the purpose of reservation had to take place immediately after the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 but a resistance to this is obvious from the "delaying tactics" adopted by most of the government authorities in truly implementing the intent.
The top court said that a person with disability would be considered for promotion along with other persons working in the feeder cadre. The bench said 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", it added.
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It said that sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset which would seek to defeat the intent of the law.
The Supreme Court said that what seems to emerge from the case is that Kerala has not implemented the SC judgments in the Rajeev Kumar Gupta and others versus the Union of India case (2016), and in the Siddaraju versus State of Karnataka case (2020), in which it was held that reservation to PwD would be applicable even in promotion in government jobs.
The bench said, "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".
It said, "We are making it time bound so that the mandate of the Act (The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) is not again frustrated by making Section 32 as an excuse for not having identified the post."
The top court noted that the Rights of Persons with Disabilities Act of 2016 has now taken care of how to deal with the aspect of reservation in promotion.
The top court observed that the anomaly which would arise from the submission of the 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".
Addressing this contention, the bench said that 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," concluded the bench.
(With inputs from PTI and IANS)
