An Expiry Date Against Treating the Disabled Unfairly
Supreme Court offers a blueprint for dignity at the workspace for the disabled
That there continues to remain a huge gap between the professed ideals of our laws and court judgments and the lived realities of the citizens whom they seek to empower is a well-known and studied phenomenon. However, what remains less explored is the question of how this gap can be narrowed. It is here that a recent judgment delivered by a two-judge bench of the Supreme Court in State of Kerala v. Leesamma Joseph assumes significance.
At issue in Leesamma Joseph was the question as to whether persons with disabilities have the right to claim reservation in promotion. One Leesamma Joseph was appointed in 1996 to the post of Typist/clerk in the Police Department on compassionate grounds, after her brother had passed away during service. She had Post Polio Residual Paralysis in the Lower Limb and her permanent disability had been assessed at 55%. She was promoted to the post of Senior Clerk in September, 2004 and as a cashier in May, 2015. She contended that she should have been promoted as Senior Clerk in July, 2002 and as Cashier in May, 2012 and thereafter as a Junior Superintendent from the date that would have been determined on this basis.
Rejecting her argument, the Kerala Administrative Tribunal held that the provisions under the Persons with Disabilities Act of 1995 [1995 Act], on identifying and reserving posts suitable for the disabled, did not contemplate reservation in promotion. It further held that there were no judgments or other legal provisions supporting the grant of reservation in promotion. The Kerala High Court, however, took a different view. It held that, pursuant to the Supreme Court’s judgment in Siddaraju v. State of Karnataka and ors., 2020 3 SCALE 99, reservation in promotion had to be granted. This was challenged by the State of Kerala in the Supreme Court.
Supreme Court’s holding
In its judgment, the Supreme Court affirmed the well-settled legal position on two counts. First, it clarified the role of identifying posts [as being suitable for the disabled] for the grant of reservation to them. It held that, consistent with two of its previous rulings, while identification of posts is essential for the grant of reservation, a government cannot use the non-identification of posts as a ruse to escape from the obligation to grant reservation.
Second, it affirmed its holdings in Rajeev Kumar Gupta and Others vs. Union of India and Ors, (2016) 13 SCC 153 and the Siddaraju judgment to the effect that the disabled have a right to claim reservation in promotion. Given that this right is legislatively mandated in the 1995 Act, it held that it did not matter that the State of Kerala had not enacted any rules providing for reservation in promotion.
That said, the judgment makes three novel contributions that merit deeper engagement.
- First, the Court exhibits attentiveness to the formidable obstacles that are likely to arise in the practical operationalisation of the right that it reaffirms. Specifically, it is common knowledge that there are several barriers strewn on the path of any disabled employee seeking promotion. For instance, a report released by the Visually Impaired Bank Employees Welfare Association in 2016 documents such barriers. These include the non-inclusion of the disabled in the promotion process, denial of timebound promotions, non-grant of reasonable accommodations in the exams to qualify for promotion and making operational/rural postings [which the disabled are not given] a precondition to secure promotions. The Supreme Court, in recognition of the stagnation in a disabled person’s career that results from these barriers, records two possible solutions. These are: promotion in a different department in which posts for the disabled are identified or grant of higher pay in the same post.
- Second, relying on a Supreme Court three-judge bench’s holding in Vikash Kumar v. Union Public Service Commission 2021 (2) SCALE 468, the Supreme Court locates the state’s obligation to provide reservation in promotion in the guarantee of non-discrimination and reasonable accommodation held out for the disabled by the Rights of Persons with Disabilities Act, 2016 [2016 Act]. Unfortunately, the Court does not meaningfully develop this line of reasoning. It does not explain how the principle of reasonable accommodation must inform the identification of posts so that the disabled would only be shut out from a higher post in which they cannot be reasonably accommodated. However, the Court’s move, albeit tentative, is a valuable step in securing a firm legal foothold for the disabled’s right to obtain promotion.
- Finally, the Court offers a solution to deal with the problem of the non-implementation of its own judgments in Rajeev Kumar Gupta and Siddaraju. It calls on the State of Kerala to implement these judgments, in a time-bound manner, within three months. As it perceptively observes, only a time-bound direction can ensure the meaningful operationalisation of its prior judgments.
Blueprint for dignified employment
The non-implementation of disability rights law in India is a long-standing problem. Indeed, as Justice Kaul, who delivered the Leesamma Joseph judgment noted in another case the following week, there exists massive social resistance against complying with this body of law, resulting in continual efforts being made to circumvent it. Notably, the government has not yet framed any instructions for grant of reservation in promotion, as it was called on to do by the first proviso to S. 34(1) of the 2016 Act. Against this backdrop, the Supreme Court’s approach offers a powerful blueprint for ensuring that the disabled are able to work with dignity at the workplace. By imposing an expiry date to the display of indifference towards the disabled by the Government of Kerala, the Court has paved the way for disabled employees to reach as high as their competence will take them.