Mode Of Entry In Service Is Not Relevant For Considering Promotion Of Persons With Disabilities: Supreme Court

The Supreme Court observed that mode of entry in service is not a relevant criteria for promotion under PwD quota.

"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.", the bench comprising Justice Sanjay Kishan Kaul and R. Subhash Reddy said in its judgment holding that persons with physical disabilities have right to reservation in promotions also

In this case, Leesamma Joseph, was appointed as a typist/clerk in Police Department in 1996 on compassionate grounds as her brother had passed away while in service. She suffered from permanent disability of 55% on account of Polio. She raised a claim that she was entitled to promotion as a Senior Clerk with effect from 1st July, 2002 with all consequential benefits and as a Cashier with effect from 20th May, 2012 with all consequential benefits and thereafter as Junior Superintendent with effect from the date of her entitlement. This claim was based on the PwD Act 1995.  The Kerala Administrative Tribunal rejected her plea sating that the rule of 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. Later, the Kerala High Court, set aside the decision of the Kerala Administrative Tribunal.

Before the Supreme Court, the appellants contended that, though the employee 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. It was thus submitted that she could not claim any right to reservation in promotion under the 1995 Act.

Rejecting this contention, the bench observed that Iit would be discriminatory and violative of the mandate of the Constitution of India if the candidate is not considered for promotion in the PwD quota on this pretext. It said:

"27. 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."

Case : State of Kerala and others vs Leesamma Joseph

Coram : Justices Sanjay Kishan Kaul and R Subhash Reddy

Citation : LL 2021 SC 27