Kerala High Court Explains Inter Se Exchange And Carry Forward Of Reservation For Persons With Disabilities

The single judge bench reiterated that if any vacancy reserved for a particular category of benchmark disability cannot be filled due to the unavailability of a suitable candidate with that specific benchmark disability or for any other valid reason, such a vacancy must be carried forward as a 'backlog reserved vacancy' to the subsequent recruitment year.

Justice Raja Vijayaraghavan added that the 'backlog reserved vacancy' should be treated as reserved for the category of Disability as it was originally reserved in the initial year of recruitment. However, if a suitable candidate with that benchmark disability is still unavailable in the subsequent year, the vacancy may be filled through interchange among the categories of benchmark disabilities designated for reservation.

The clarification comes in a case where the petitioner was a person with locomotor disability assessed as 70%. He had approached the court on being aggrieved by the refusal on the part of the KPSC in advising the petitioner towards the post of computer programmer against the 4% quota earmarked under the Rights of Persons with Disabilities Act, 2016. KPSC said since there are no candidates available in Category I - DA - LV (Disabled Low Vision), the vacancy cannot be filled up from any other category of disabled persons.

Petitioner however contended that the turn of Low Vision and hearing-impaired candidates is already over, and now the roster turn is for advice for a candidate belonging to Locomotor disability/Cerebral Palsy. 

Looking at the appointment charts, the Court agreed with the Petitioner. It observed that appointments had already been made over two separate recruitment ranked lists and individuals falling under low vision category were not available. It is here that the Court explained,

"If a suitable candidate with that benchmark disability is still unavailable in the subsequent year, the vacancy may be filled through interchange among the categories of benchmark disabilities designated for reservation. In the event that no suitable candidate with a benchmark disability can be found to fill the vacancy in the succeeding year as well, the employer may proceed to fill the vacancy with a person other than an individual with a benchmark disability. If the vacancy is filled by a person with a benchmark disability of the category for which it was originally reserved or by a person from other benchmark disability categories through inter se exchange in the subsequent recruitment year, it shall be deemed to have been filled through reservation. However, if the vacancy is filled by a person other than an individual with a benchmark disability in the subsequent recruitment year, the reservation shall be extended for up to two additional recruitment years, following which the reservation shall cease."

The court referred to the decision in Jeeja Ghosh v. Union of India where Supreme Court emphasized on additional support and facilities for persons with disabilities, to offset the impact of their disability.

Additionally, the bench also referred to the decision in National Federation of the Blind, quoting that 'employment is a key factor in the empowerment and inclusion of people with disabilities'.

In view of this, the writ petition was allowed and the court stated that the petitioner was entitled to be appointed as the computer programmer cum operator against the 4% quota earmarked for persons with disabilities.

Counsel for petitioner: Advocates George Varghese, Manu Srinath, Nimesh Thomas, Sreelekshmi R Nair

Counsel for respondents: Advocate P C Sasidharan, Standing Counsel Naveen T

Citation: 2024 LiveLaw Ker (3)

Case Title: George Mathew v. State of Kerala

Case Number: WP(C) No. 27911 of 2023

Click here to read/download Judgment