Right To Reservation In Promotions For PwDs:
The Supreme Court of India has recently held that persons with physical disabilities have the right to reservation in promotions also.
- A disabled particular person can avail the advantage of reservation for promotion even when she or he was recruited within the common class or developed the incapacity after gaining employment.
- The case was based on a claim under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
- This Act has been replaced with the Rights of Persons with Disabilities Act 2016.
- The Kerala Administrative Tribunal rejected the plea of applicant stating that the rule of Recruitment in the State of Kerala, General Rules and other orders issued by the Government under Section 32 of the 1995 Act did not provide for any reservation in promotions.
- The Kerala High Court set aside the decision of the Kerala Administrative Tribunal.
- The 1995 Act recognizes the right to reservation in promotion.
- Identification of posts for reservation as per Section 32 of the 1995 Act is a prerequisite for appointment; but appointment cannot be frustrated by refusing to identify posts.
- The absence of provision for reservation in the recruitment rules will not defeat the right of a PwD as such right flows from the legislation.
- Reservation to promotion can be given to a PwD even if the person was not originally appointed in the PwD quota.
- Further, the responsibility to provide equal opportunities to disabled persons does not end with giving them reservation at the time of recruitment.
- Legislative mandate 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 to the initial stage of induction in service.
- This would in fact result in stagnation of the disabled in a consequential frustration.
