Analysis
Do Persons with Disabilities have the Right to Reservation in Promotion?
The Supreme Court has held that persons with disabilities have a right to reservation in promotion under Article 16(4).
On 28th June, 2021, the Supreme Court passed a judgement upholding the right to reservation in promotions in State of Kerala v. Leesamma Joseph. The two-judge Bench comprising Justice Sanjay Kishan Kaul and Justice Subhash Reddy interpreted the provisions of the 1995 and 2016 laws pertaining to rights of persons with disabilities.
The Court noted that by virtue of its purpose, Article 16 and The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the 1995 Act) allow for the reasonable accommodations to be made for persons with disabilities. This included reservations at the stage of promotions.
In this post we discuss the application of reservations through landmark judgements, and especially how they operate for reservation claims for persons with disabilities.
History of reservation in promotion for persons with disabilities: From Southern Railway to Siddaraju
In Southern Railway v Rangachari (1962) the Supreme Court had permitted reservation in promotions. Thirty years later, in Indra Sawhney v Union of India, the Supreme Court overturned Rangachari to the extent that reservation would not be applicable to promotions under Article 16(4) of the Constitution of India, 1950. The Court opined that a reservation in promotion would compromise the efficacy of administration. After this, Parliament added Article 16(4A), amending the Constitution to provide reservations in promotions for SCs and STs.
In Rajeev Kumar Gupta v Union of India, the Court noted that the judgement in Indra Sawhney was specifically in the context of reservation for backward classes under Article 16(4). The Court referred to State of Kerala v N.M. Thomas and Indra Sawhney to ascertain the scope of Article 16(4). In N.M Thomas, Article 16(4) was interpreted to be an emphasis on the aim of Article 16(1) to ensure “effective material equality”. In Indra Sawhney, Article 16(4) was considered to be a subset of Article 16(1). The Court held that rules regarding reservation in promotion did not apply to persons with disabilities.
In 2020, Siddaraju v State of Karnataka, the Supreme Court upheld Rajeev Kumar, and stated that persons with disabilities have a right to reservation in promotions.
Does Article 16 Allow Reservation in Promotion for Persons with Disabilities?
The respondent, Leesamma Joseph was appointed as a typist/clerk in 1996 in the Police Department on compassionate grounds. Her permanent disability had been assessed at 55%. She cleared all the tests for promotion, and was entitled to promotion as a Senior Clerk as of July 2002, and as a Cashier as of May 2012. However, she was promoted to Senior Clerk in September 2004 and Cashier in May 2015.
The Kerala Administrative Tribunal observed that Section 32 of the 1995 Act only allowed for 3% reservation for persons with disabilities, but not at the stage of promotions. The High Court of Kerala set aside the Order of the Tribunal based on Rajeev Kumar, and Siddaraju.
The Court noted that Section 47 of the 1995 Act which (deals with non-discrimination in government employment) has to be read in the context of the purpose of the Act, which is to provide equal opportunities for career progression. Denying reservation at the promotion stage would be negating this purpose.
Further, the Court also noted that the 3% reservation would apply to a total number of vacancies, which includes both new nominations, as well as promotions. The Appellant State’s submission that the 3% reservation as per the 1995 Act was only applicable to new nominations was set aside.
The Bench consisting of Justice Sanjay Kishan Kaul and Justice Subhash Reddy referred to Vikash Kumar v Union Public Service Commission. In this 2021 judgment, the Court noted that “reasonable accommodation” included any necessary and appropriate modifications as per Section 2(y) of The Rights of Persons with Disabilities Act, 2016. The Bench held that this interpretation also applied to State of Kerala v Leesamma Joseph.
Finally, the Bench also held that the absence of rules on the reservations in promotions did not absolve the State from having to identify posts for reservation. Additionally, the fact that Leesamma Joseph was appointed out of compassion, did not take away her right to reservation in promotion.
Note: The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has been replaced by The Rights of Persons with Disabilities Act, 2016.