The State of Kerala & Ors. Vs. Leesamma Joseph. 2021

CASE BRIEFING: The State of Kerala & Ors. Vs. Leesamma Joseph.

Case Title and Citation

The State of Kerala & Ors. versus Leesamma Joseph.

CIVIL APPEAL NO. 59 OF 2021.

Facts

The respondent, Leesamma Joseph, was appointed in 1996 as a Typist/Clerk in the Police Department on compassionate grounds following the death of her brother. She suffered from Post Polio Residual Paralysis (L) Lower Limb, with a permanent disability assessed at 55%. The respondent claimed promotion to posts such as Senior Clerk and Cashier, arguing entitlement based on reservation in matters of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the 1995 Act). The Kerala Administrative Tribunal dismissed her claim, noting that Section 33 of the 1995 Act provided a reservation for PwD in appointments but not promotions, and State Recruitment Rules also lacked such a provision. The Kerala High Court subsequently set aside the Tribunal’s order and granted relief, finding that reservation was applicable even in promotion, relying on precedents like Rajeev Kumar Gupta and Siddaraju. The Appellant-State challenged this order, arguing primarily that the respondent, having been appointed on compassionate grounds and not under the PwD quota, could not claim reservation in promotion under the 1995 Act.

Issue(s)

I. Whether the 1995 Act mandates reservations for Persons with Disabilities (PwD) in promotions?

II. Whether a reservation under Section 33 of the 1995 Act can be denied due to the non-identification of promotional posts under Section 32?

III. Whether promotion reservation for PwD can be denied in the absence of specific provisions in State Service Rules?

IV. Whether an employee, who is a PwD but was not initially appointed through the PwD quota (e.g., appointed on compassionate grounds), is entitled to claim reservation in promotional posts?

Rule of Law

1. Mandate for Reservation in Promotion: Reservation for PwD must be computed with reference to the total number of vacancies in the cadre strength, and no distinction should be made between posts filled by direct recruitment and those filled by promotion. Once a post is identified (Section 32), it must be reserved for PwD irrespective of the mode of recruitment adopted.
2. Non-discrimination (Section 47): Section 47 of the 1995 Act mandates non-discrimination in Government employment, stipulating that no promotion shall be denied to a person merely on the ground of his disability. Denial of reservation in promotion is a “negation of the legislative mandate” for equal opportunity and career progression.
3. Identification of Posts: The identification of posts under Section 32 is a prerequisite to appointment but cannot be used as a “tool to frustrate the benefits of reservation” under Section 33. The appointment/reservation cannot be frustrated by refusing to comply with the prerequisite identification.
4. Effect of Entry Mode: The source of recruitment or the mode of entry into service (including compassionate appointment) cannot be a ground to make a case of discriminatory promotion. The material fact is that the employee must be a PwD at the time of consideration for promotion. The 1995 Act does not distinguish between a person who acquired a disability before or after entering service.

Holding

1. The issue regarding the applicability of reservation in promotion under the 1995 Act is no more res integra (settled law).
2. The plea of the Appellant-State is rejected, and the appeal is dismissed.
3. The course of action followed by the High Court in granting relief to the respondent is salutary and does not call for any interference.
4. The State of Kerala is directed to implement existing Supreme Court judgments regarding promotion reservation for PwD in all posts after identifying said posts within a period of three months.

Reasoning

1. Promotion Mandate Upheld: The Court reaffirmed its previous position (in Rajeev Kumar Gupta and Siddaraju) that the 1995 Act mandates reservation in promotion, computed on the total cadre strength. This is reinforced by the non-discrimination mandate of Section 47.
2. Section 32 is Facilitative, Not Impeding: Although identification of posts (Section 32) is required, the government cannot rely on its failure to identify posts to defeat the substantive reservation right provided under Section 33. The legislative intent requires identification to facilitate, not impede, reservation.
3. Rules Cannot Override Statute: The absence of specific State rules providing for reservation in promotion cannot defeat the statutory right of PwD under the 1995 Act, as the right flows directly from the Central legislation.
4. Entry Mode is Irrelevant: Denying the respondent promotion under the PwD quota because she entered service via compassionate grounds would be discriminatory. The mode of entry (compassionate, PwD quota, or general recruitment) is immaterial; the critical factor is that the employee is a PwD at the time of promotion consideration. The 1995 Act makes no distinction based on entry source.

Conclusion

The Supreme Court dismissed the State of Kerala’s appeal, holding that the mandate for reservation in promotion flows directly from the 1995 Act and applies to all PwD employees, regardless of whether they were initially appointed through the PwD quota. The court further directed the State of Kerala to comply with judicial mandates and complete the exercise of identifying reserved promotional posts within three months.