Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Persons with Disabilities (Equal Opportunities 33 47 Protection of Rights and Full Participation) Act 1995: ss.32 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case(s) Referred | Referred Case 0 Referred Case 1 Referred Case 2 |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | 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 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 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. 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 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 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 Rights and Full Participation) Act, 1995: s.32 – In absence of a provision in the Rules for reservation in promotion for PwD, whether 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 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 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 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. |
Judge | Hon'ble Mr. Justice Sanjay Kishan Kaul |
Neutral Citation | 2021 INSC 309 |
Petitioner | The State Of Kerala & Ors. |
Respondent | Leesamma Joseph |
SCR | [2021] 3 S.C.R. 576 |
Judgement Date | 2021-07-28 |
Case Number | 59 |
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