THE STATE OF KERALA & ORS.versusLEESAMMA JOSEPH

576                      [2021]REPORTS
               SUPREME COURT    3 S.C.R. 576               [2021] 3 S.C.R.


A                     THE STATE OF KERALA & ORS.
                                        v.
                             LEESAMMA JOSEPH
                          (Civil Appeal No. 59 of 2021)
B                                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
C
      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
D     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.
E
             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
F
      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
G     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
H     Rights and Full Participation) Act, 1995: s.32 – In absence of a
                                      576
   THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                       577


provision in the Rules for reservation in promotion for PwD, whether   A
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
                                                                       B
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     C
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     D
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      E
discriminatory promotion.
      Dismissing the appeal, the Court
    Held: 1. Whether the 1995 Act mandates reservations in
promotions for persons with disabilities?                              F
      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    G
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
                                                                       H
578           SUPREME COURT REPORTS                      [2021] 3 S.C.R.


A     to be filled by direct recruitment and by promotion. 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
B
      promotion. [Paras 15, 17][589-C-D; 589-F-G]
            1.3 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
C     benefit. The requirement under Section 32 of the 1995 Act has
      also to be completed for identifying the posts in the promotional
      cadre. [Para 17][590-C-D]
           2. Whether reservation under Section 33 of the 1995 Act is
      dependent upon identification of posts as stipulated by Section
D     32?
            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
E     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
F     which would endeavour to find ways and means to defeat the intent
      of the Act enacted and Section 32 was a classic example of the
      same. 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
G     refusing to comply with the prerequisite. [Para 19][590-E-H; 591-
      A-B]
            Government of India & Anr. v. Ravi Prakash Gupta &
            Anr. (2010) 7 SCC 626 : [2010] 7 SCR 851; Union of
            India v. National Confederation for Development of
H           Disabled & Anr. (2015) 13 SCC 643 – relied on.
   THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                         579


      3. Whether in absence of a provision in the Rules for              A
reservation in promotion for PwD, whether promotion can be
denied to a PwD?
      3.1 No doubt, 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            B
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               C
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. [Para 20][591-D-F]
      Rajeev Kumar Gupta and Others v. Union of India and
      Ors. (2016) 13 SCC 153 : [2016] 3 SCR 407 – relied                 D
      on.
      3.2 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       E
promotion. Such a scenario will result in frustration and stagnation
as others may get promoted even over the persons with disability
more often than not, the disability comes in the way of meeting
the requirements for promotion. In such a situation, the
government should explore methods to address the issue of                F
stagnation of PwD. [Para 21][591-G-H; 592-A]
      Vikash Kumar v. Union Public Service Commission 2021
      (2) SCALE 468 – relied on.
     3.3 A reading of Section 20 with Section 2(y) shows that
non-discrimination in employment is a mandate of the legislature.        G
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 mandate necessary and
appropriate modifications and adjustments to ensure that the PwD
                                                                         H
580            SUPREME COURT REPORTS                      [2021] 3 S.C.R.


A     enjoy or exercise their rights equally with others. There is 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
B
      change and the 2016 Act is the result thereof. [Paras 24, 25][593-
      C-E]
            4. 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?
C
             4.1 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
D     her promotion from the date she was so found entitled. 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
E     the list of such posts are available on the 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
F     promotion) as Section 32 of the 1995 Act is to facilitate but not to
      impede the legislative mandate. [Para 26][593-F-H; 594-B-D]
            4.2 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
G
      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
H
   THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                        581


after joining service would on a pari materia position be also not      A
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
                                                                        B
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              C
service cannot be a ground to make out a case of discriminatory
promotion. [Para 27][594-D-H]

      Poonam Manchanda v. Union of India (2019) SCC
      Online P&H 2710; Union of India v. Poonam
      Manchanda Civil Appeal No. 6092/2019; Kamla                       D
      Chanyal v. State of Uttarakhand W.P. No. 126/2015 –
      judgment dated 29.11.2016; Uma Prasad v. Chief
      Executive Officer, EPFO: A case before the Chief
      Commissioner for Persons with Disabilities
      (Divyangjan) Govt. of India – referred to.                        E
      5. The appellant-State has not implemented the judgment
of this Court in Rajeev Kumar Gupta's and Siddaraju's cases.
The State of Kerala is directed to implement these judgments
and provide for reservation in promotion in all posts after
identifying said posts. [Para 29][596-C-D]                              F

      Union of India v. National Federation of the Blind
      (2013) 10 SCC 772 : [2013] 9 SCR 1023; National
      Confederation for Development of Disabled and Anr.
      v. Union of India and Ors. (2015) SCC OnLine Bom
                                                                        G
      5112; Indra Sawhney and Ors. v. Union of India and
      Ors. Siddaraju v. State of Karnataka & Ors. 2020 3
      SCALE 99 – referred to.


                                                                        H
582             SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A                              Case Law Reference
      [2013] 9 SCR 1023                    referred to            Para 7
      [2016] 3 SCR 407                     relied on              Para 8
      [2010] 7 SCR 851                     relied on              Para 17
B     (2015) 13 SCC 643                    relied on              Para17
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 59 of
      2021.
            From the Judgment and Order dated 09.03.2020 of the High Court
      of Kerala at Ernakulam in O.P.(KAT) 286 of 2015.
C
            Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash,
      G. Prakash, Advs. for the Appellants.
              Gaurav Agrawal, Adv. for the Respondent.
              The Judgment of the Court was delivered by
D
              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
E     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
F     (hereinafter referred to as "the 1995 Act") was enacted which came
      into force on 7th 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 Standing Committee of the Parliament,
      The Rights of Persons with Disabilities Act, 2016 (hereinafter referred
G     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
H
   THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                                583
              [SANJAY KISHAN KAUL, J.]

her application by order dated 27th February, 2015 but the said judgment        A
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           B
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           C
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         D
the post of Typist/clerk in the Police Department on compassionate
grounds, after her brother had passed away during service. She
undisputedly 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,           E
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 16th September, 2004, based on the seniority list of test qualified
LDCs. She was thereafter promoted to the post of a Cashier on 5th
May, 2015. The issue which had been raised by the respondent was that           F
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
plea was predicated on reservation in matters of promotion which she            G
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
                                                                                H
584               SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A     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
               forpersons with disabilities.- Appropriate Governments
               shall-
B              (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.
C
               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 persons with disability of which one per cent each shall
               be reserved for persons suffering from-
D
               (i) blindness of low vision;
               (ii) hearing impairment;
               (iii) locomotor disability or cerebral palsy,
               in the posts identified for each disability:
E
                      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."
F
            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
G     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
      1
H         (2013) 10 SCC 722.
    THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                            585
               [SANJAY KISHAN KAUL, J.]

issue dealt with thereunder was whether 3% reservation was to be applied     A
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
                                                                             B
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
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     C
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           D
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.            E
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.
                                                                             F
      CASE OF THE APPELLANTS
      9. A threefold submission was made before us on behalf of the
Appellant-State:
      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        G
             posts identified by the government were to be reserved for
2
  2015 SCC Online Bom 5112.
3
  (2016) 13 SCC 153.
4
  1992 Supp (3) SCC 217.
5
  2020 3 SCALE 99.
                                                                             H
586              SUPREME COURT REPORTS                        [2021] 3 S.C.R.


A                  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
B                  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           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
D     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
E     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 the present
      case. We may note Section 34 of the 2016 Act which reads as under:
F
            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
G           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;
H
   THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                                 587
              [SANJAY KISHAN KAUL, J.]

      (c) locomotor disability including cerebral palsy, leprosy cured,          A
      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              B
      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:
                                                                                 C
             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                      D
      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            E
      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         F
      person with disability:
             Provided that if the nature of vacancies in an establishment
      is such that a given category of person cannot be employed, the
      vacancies may be interchanged among the five categories with
      the prior approval of the appropriate Government.
                                                                                 G
            (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         H
588            SUPREME COURT REPORTS                          [2021] 3 S.C.R.


A     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 24th March, 2021. It was explained that since the present case
B
      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-
C     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
D     to discuss each of the four aspects hereinafter:
          I. Whether the 1995 Act mandates reservations in
      promotions for persons with disabilities?
            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
E     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:
F                  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
G           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:

H
    THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                                     589
               [SANJAY KISHAN KAUL, J.]

              Provided that the appropriate Government may, having                    A
       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             B
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
                                                                                      C
       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 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            D
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            E
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             F
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
6
                                                                                      G
  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.
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.                                                                   H
590               SUPREME COURT REPORTS                           [2021] 3 S.C.R.


A     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: "Once the post
B
      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".
C              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
D              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
E              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
F              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
G              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 ways and means to defeat the intent of
               the Act enacted and Section 32 was a classic example of the

      9
          (2015) 13 SCC 643.
H
THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                             591
           [SANJAY KISHAN KAUL, J.]

  same. In Government of India & Anr. vs. Ravi Prakash Gupta              A
  & 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
                                                                          B
  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?                                                     C

  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        D
  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         E
  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 and in   F
  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            G
  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         H
592               SUPREME COURT REPORTS                         [2021] 3 S.C.R.


A              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
B              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.
C              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
D              person with disability in any matter relating to employment:
                      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.
E
               (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.
F
               (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
G              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

H     10
           2021 (2) SCALE 468.
THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                              593
           [SANJAY KISHAN KAUL, J.]

  post until a suitable post is available or he attains the age of         A
  superannuation, whichever is earlier.
  (5) The appropriate Government may frame policies for posting
  and transfer of employees with disabilities."
  "2. Definitions-
                                                                           B
  (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-                C
  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 mandate necessary and appropriate modifications
  and adjustments to ensure that the PwD enjoy or exercise their           D
  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           E
  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?                                  F
  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          G
  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 1st July, 2002 and
                                                                           H
594      SUPREME COURT REPORTS                            [2021] 3 S.C.R.


A     further to the post of Cashier with effect from 20th 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
B
      undertaken a very comprehensive exercise of identifying posts
      which can be reserved for PwD and the list of such posts are
      available on the 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
C     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.
D     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
E     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
F     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
G     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
H     case of discriminatory promotion.
     THE STATE OF KERALA & ORS. v. LEESAMMA JOSEPH                                    595
                [SANJAY KISHAN KAUL, J.]

       SOME VIEWS OF THE HIGH COURT                                                   A
       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                   B
           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.               C
           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.                                              D
                                                             12
       b. Union of India vs. Poonam Manchanda -
           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).
                                                                                      E
       c. Kamla Chanyal vs. State of Uttarakhand13 -
        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
                                                                                      F
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,                   G

11
   2019 SCCOnline P&H 2710.
12
   Civil Appeal No. 6092/2019.
13
   W.P. No. 126/2015 - judgment dated 29.11.2016
14
   A case before the Chief Commissioner for Persons with Disabilities (Divyangjan),
Govt. of India                                                                        H
596              SUPREME COURT REPORTS                          [2021] 3 S.C.R.


A     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
B            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 AmicusCuriae. In fact,
      what seems to emerge is that the appellant-State has not implemented
C     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
      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
D     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.
E
             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.
F     Rungta, learned Senior Counsel and Mr. Archit Verma, Legal Consultant
      in the office of Chief Commissioner for Persons with Disabilities.


      Devika Gujral                                               Appeal dismissed.


G




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