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

A bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy said: "We have no doubt that the mandate of Section 32 of the 1995 Act, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), 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 bench ruled that a person with disability would be considered for promotion along with other persons working in the feeder cadre. 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 as it flows from the legislation", it added.

The bench added that 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," said the bench.

The top court held that reservation for PwD cannot be dependent on identification of posts as non-discrimination in employment is mandate of legislation, and also as per law government needs to identify posts that can be filled with persons with disability.

The bench cited the laws passed to ensure equal rights to PwD in 1995 and 2016. "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", said the bench.

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

The top court observed that the anomaly which would arise from the submission of the 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 considered to a vacancy in a promotional post reserved for a PwD".

Addressing this contention, the bench said that 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," concluded the bench.