THE STATE OF KERALA VS LEESAMMA JOSEPH 2021

Court- The Supreme Court of India

Citation- Civil Appeal no. 59 of 2021
Case title- The State of Kerala & Ors Vs Leesamma Joseph
Date of order- June 28, 2021
Bench- Hon’ble Justice Sanjay Kishan Kaul and Justice R. Subash Reddy
Appellant- The State of Kerala
Respondent- Ms. Leesamma Joseph

FACTS OF THIS CASE:-

The key question in this case is whether the respondent can be promoted under the promotion
quota for persons with disabilities (PwDs) even though she was not appointed under a PwD
quota.

The Respondent Leesamma Joseph was appointed as a typist/clerk in the Kerala Police
Department on compassionate grounds following the demise of her brother in 1996. Ms.
Joseph has a 55% locomotor disability due to post-polio residual paralysis, which qualifies
her as disabled. She successfully passed departmental tests for promotion and was elevated to
the position of lower division clerk (LDC) in July 2001. She was later promoted to senior
clerk in September 2004 and to cashier in May 2015.

Ms. Joseph claimed she was entitled to an earlier promotion to senior clerk from July 2002,
when she was still a junior clerk, and more so, to a cashier position in 2012, along with all
consequential benefits, including a promotion to junior superintendent. Her claim was based
on her entitlement to reservation for persons with disabilities (PwD) under the provisions of
the PwD Act of 1995.

However, the Kerala Administrative Tribunal denied her request, stating that the recruitment
rules in the state of Kerala, including general rules and other orders issued by the government
under Section 32 of the PwD Act 1995, did not provide for reservation in promotions, only in
initial appointments. The Kerala High Court disagreed with the decision of the Kerala
Administrative Tribunal and ruled in favor of Ms. Joseph, stating that persons with
disabilities are entitled to reservation in promotions. The State of Kerala was dissatisfied with
this ruling and subsequently appealed to the Supreme Court of India.

In 1995, Parliament enacted the the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act (“PwD Act 1995”) which was later replaced
by the Rights of Persons with Disabilities Act, 2016 (“RPwD Act 2016”).1

ISSUES:-

I. Whether the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 mandates reservation for persons with disabilities concerning
promotions?

II. Whether the reservation specified in section 33 of the PwD Act, 1995 contingent upon the
identification of posts as outlined in section 32 of the same Act?

III. Whether a promotion be refused to a physically disabled person due to the lack of
provisions addressing this issue?

IV. Whether the Respondent can be given a promotion by virtue of her status notwithstanding
the fact that she was not appointed through the concerned quota?

CONTENTIONS:-

State of Kerala’s arguments:

A. In the case of Siddharaju2, it was explained that Sections 32 and 33 of the Persons with
Disabilities (PwD) Act of 1995 mandate that physically disabled individuals should be
provided with 3-4 percent reservation for posts identified by the government for appointment.
It was argued that this reservation should not be interpreted to extend to promotions.

B. There is no doubt that the respondent has a disability; however, she was not appointed
through the recruitment process outlined in the 1995 Act. Instead, her appointment was made
on compassionate grounds following the death of her brother, which is a different basis for
reservation. Therefore, it was argued that she cannot claim reservation rights for promotion
under the 1995 Act.

1
Sci.gov.in, Landmark judgment summaries 2021, https://www.sci.gov.in/landmark-judgment-summaries/
2
Siddharaju Vs State of Karnataka & Ors, 2020 3 SCALE 99
C. According to the 1995 Act, the government issued several orders to provide 3-4 percent
reservation in appointment matters.

Leesamma’s arguments:

A. The respondent argued that the primary purpose of the Persons With Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995 was to ensure equal
opportunities for individuals with physical disabilities in all aspects of employment, including
promotions.

B. She stated that denying reservations in promotions based on the mode of initial
appointment or the absence of specific state rules would constitute discrimination under
Article 16 and violate the principles of equality outlined in Article 14 of the Indian
Constitution.

C. The respondent referred to Supreme Court precedents, such as the Rajeev Kumar Gupta’s
case3, which recognized the right of individuals with physical disabilities to reservations in
promotions.

SUBMISSIONS OF THE AMICUS CURIAE:-

The knowledgeable Amicus Curiae, Mr. Gaurav Agrawal, guided the court through an
overview of the legal rulings related to reservations in promotion under the 1995 Act. He
stated that he had reviewed the documentation in the Siddharaju case 4 and determined that it
is not relevant to the current issue. Furthermore, he asserted that the matters discussed in that
case are unrelated to the issues arising in the present case and he set out four issues which
would arise for consideration. We now proceed to discuss each of the four aspects
hereinafter5:

I. Whether the Persons with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995 mandates reservation for persons with disabilities
concerning promotions?

This issue involves assessing sections 32 and 33 in conjunction with section 47, which
addresses non-discrimination in government employment. Denying promotions to individuals
with physical disabilities based solely on their initial recruitment status is unjust.

3
Rajeev Kumar Gupta & Ors Vs Union Of India & Ors AIR 2016 SC 3228, 2016 (13) SCC 153
4
Supra 2
5
Advocatekhoj, https://www.advocatekhoj.com/library/judgments/announcement.php
Reservation for promotion may be granted to persons with disabilities (PwD) if: 1) the rules
provide for promotion from the feeder cadre, and 2) certain roles in the promotional cadre are
deemed suitable for PwD.

The Supreme Court has ruled that the 1995 Act requires reservation in promotions for PwD,
as seen in the Ravi Prakash case6 and the national federation of the blind case 7. Reservations
should be calculated based on total vacancies in the cadre strength, with no distinction
between directly recruited posts and those filled through promotion.

II. Whether the reservation specified in section 33 of the PwD Act, 1995 contingent upon
the identification of posts as outlined in section 32 of the same Act?

The legislature did not intend for Section 32 to undermine the benefits of reservations under
Section 33. After the 1995 Act, it was essential to quickly identify positions for these
reservations. However, many government agencies have used delaying tactics, revealing a
resistance to the objective. This situation highlights that changing societal mindsets is often
more challenging than enacting laws, with Section 32 serving as a prime example. The Court
also stressed the necessity of identifying positions for reservations in Ravi Prakash Gupta’s
case.

Consequently, unless exempted under Section 33, every establishment must identify posts.
While this identification is necessary for appointments, it should not obstruct the appointment
process itself, as agreed by a larger bench in the National Federation of Blind Case.

III. Whether a promotion be refused to a physically disabled person due to the lack of
provisions addressing this issue?

Section 32 of the 1995 Act requires the government to identify positions suitable for
individuals with disabilities, which includes reserving promotional positions for them. This
identification is crucial to ensure that persons with disabilities (PwD) have access to
promotion.

There is no way to bypass this reservation; once a position is designated, it must be reserved
for PwD who are promoted. The lack of specific guidelines does not diminish their rights to
reservations, as these rights are established.

6
Government of India & Anr Vs Ravi Prakash Gupta & Anr [(2010) 7 SCC 626]
7
Union of India Vs National Federation of the Blind 2013 (10) SCC 772
In the recent case Vikash Kumar case8, the court broadly interpreted Section 20 alongside
Section 2 of the 2016 Act, highlighting that non-discrimination in the workplace is a legal
requirement. The term "reasonable accommodation," defined in Section 2(y), mandates
necessary adjustments so that PwD can exercise their rights equally with others.

IV. Whether the Respondent can be given a promotion by virtue of her status
notwithstanding the fact that she was not appointed through the concerned quota?

The appellant-State's submission reveals an inconsistency: a person who contracts a disability

after being recruited should still be eligible for promotions reserved for individuals with
disabilities. Positions like UDC and Cashier qualify for such reservations. The respondent,
capable of performing these roles, should not be denied promotional benefits based on her
disability, despite the absence of explicit promotion rules. The order required consideration
of her claim for UDC promotion from July 1, 2002, and Cashier promotion from May 20,
2012, taking seniority into account.

RATIONALE:-

The Supreme Court, in a judgment delivered by Justice Sanjay Kishan Kaul, upheld the
decision of the Kerala High Court, providing the following rationale:

The Court noted that the decision of the tribunal regarding the relevant act requires a closer
examination of sections 32 (Identification of Posts) and 33 (Reservation of Posts),
specifically interpreting section 47. It stated that denying persons with disabilities (PWD) the
right to promotions would effectively negate the statutory mandate.

The ruling was influenced by the case of Ravi Prakash Gupta 9, which mandates that section
32 is exempt from the stipulations of section 33. The Court acknowledged that it was never
the legislature's intention for section 32 to undermine the benefits provided under section 3.

The Court held that initial appointments, whether made on compassionate grounds or
otherwise, should not prevent a PWD from benefiting from reservation in promotions. What
matters is the individual's disability status at the time of consideration for promotion.

In the Vikash Kumar case, the phrase "reasonable accommodation" was interpreted as a
provision by government establishments to ensure that PWDs can enjoy and exercise their
rights equally with others. The Court conducted an extensive reading and interpretation of
8
Vikash Kumar Vs Union Public Service Commission [(2021) 2 SCALE 468]
9
Supra 6
section 20 of the act in conjunction with section 2(y) of the act. Furthermore, it criticized the
state's failure to identify suitable posts as required under section 32 of the 1995 act, ruling
that such discrimination would be against the Constitution of India, It also directed the state
to undertake the identification process and implement reservation in promotions for persons
with disabilities within three months, ensuring compliance with the legislative mandate.

DEFECTS OF LAW:-

This judgment highlights several problems stemming from the state’s action:

A. The state's failure to identify suitable positions for individuals with physical disabilities, as
mandated by the 1995 Act, has resulted in eligible candidates missing out on the rightful
benefits of promotion.

B. The state's restrictive interpretation of the 1995 Act has overlooked the broader goals of
promoting inclusivity and equal opportunity for persons with disabilities (PWD) in all aspects
of employment, including promotion.

C. The state's justification for denying reservations in promotion benefits, based on specific
rules or the mode of initial appointment, undermines the substantive rights of PWD, such as
Article 14 and Article 16 of the Indian constitution.

INFERENCE:-

The Supreme Court's judgment in The State of Kerala & Ors v. Leesamma Joseph (2021) is a
significant advancement for the rights of persons with disabilities (PwD) in employment and
promotion. It establishes that reservations should apply not only to initial appointments but
also to promotions to ensure true workplace inclusivity. The Court's interpretation of relevant
disability laws reinforces that government inaction such as not identifying suitable posts
cannot justify denying rightful entitlements.

This case underscores the need for proactive state measures to identify reserved positions and
facilitate timely promotions for PwD employees. It highlights that administrative
inefficiencies cannot excuse the denial of rights under Articles 14 and 16 of the Indian
Constitution. Overall, the ruling sets a crucial precedent for addressing employment
discrimination against persons with disabilities in the future.