Persons with disabilities can't be denied reservation in promotion: SC

The Supreme Court on Monday said that a claim that posts in the promotional cadre cannot be reserved for persons with disabilities (PwD) category due to functional or other reasons should not be taken as a ruse to defeat the reservation in promotion for such candidates. 

"Such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability as, 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," a bench presided over by Justice Sanjay Kishan Kaul said.

The top court held that reservation for PwD cannot be dependent on identification of posts as non-discrimination in employment is the mandate of legislation.

A person with a disability has to be considered for promotion along with other persons working in the feeder cadre. The mandate of law enjoined the government to identify posts that can be filled up with such persons. Thus, even posts in the promotional cadre have to be identified and reserved for PwD, 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," the bench said.

Referring to the laws passed to ensure equal rights to PwD in 1995 and 2016, the bench, also comprising Justice R Subhash Reddy said, "Sometimes it is easier to bring a legislation into force but far more difficult to change the social mindset which would endeavour to find ways and means to defeat the intent of the Act."

The top court dismissed an appeal filed by the Kerala government against the High Court's judgment of March 9, 2020 directing promotional benefits to woman as cashier, following her appointment as typist in police department in 1996 on compassionate ground.

The court said even the mode of entry in service cannot be a ground to make out a case of discriminatory promotion.

"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 bench said.