Kerala High Court Issues Directions For Ensuring Equal Opportunities For PwD Candidates In Higher Judicial Services Appointments

The petitioner, in this case, challenged the 2023 notification for appointment as District & Sessions Judge in Kerala State Higher Judicial Service (KSHJS) by direct recruitment from bar (hereafter, notification) for being violative of the rights of disabled persons.

Disposing of the writ petition, Justice Raja Vijayaraghavan V issued directions for the identification of posts, working out backlog vacancies, providing age relaxation, granting grace marks and filling up backlog vacancies through a special recruitment drive for ensuring full and equal rights to disabled persons to fulfil the constitutional mandate as per the Right of Persons with Disabilities Act, 2016.

The petitioner is a practising advocate who belongs to the scheduled caste category and has a 40 per cent locomotor disability. The notification was challenged for not earmarking vacancies for disabled candidates, lack of providing upper-age relaxation and grace marks for PwD candidates. It was alleged that the notification does not provide age relaxation to disabled candidates as provided by the Public Service Commission and other states. It was argued that the notification was violative of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Right of Persons with Disabilities Act, 2016.

The Court had issued an interim order and directed the respondents to provisionally accept the application of the petitioner to the post of District & Sessions Judge in KSHJS.

The petitioner alleged that he was not selected for the Mains Examination after writing the Preliminary Examination as he was not granted any grace marks based on his disability status.

The respondents admitted before the Court that they had not shown a split up of reserved vacancies in the notification. It was also submitted that backlog vacancies were being ascertained for disabled persons for appointment to the post of District & Sessions Judge. It was also submitted that unfilled vacancies for disabled persons shall be carried forward to the succeeding years.

The Court noted that despite the enactment of the Right of Persons with Disabilities Act in 2016, the government has not yet decided on age relaxation for the post of District & Sessions Judge in KSHJS. It noted that the PSC grants age relaxation up to 15 years, the High Court of Judicature at Hyderabad for the State Of Andhra Pradesh And Telangana and the High Court of Odissa have granted 10 years etc. for disabled candidates. It thus directed the government to decide to fix criteria for age relaxation without delay on taking note of age relaxation granted by the Public Service Commission and other states.

“However, insofar as the age relaxation to the post of District Judges is concerned, it is stated that no decision has yet been taken. Act 49 of 2016 was enacted in the year 2016, and the delay on the part of the respondents to give effect to the provisions of the Act and grant age relaxation for PwDs cannot be countenanced. The respondents are bound to take all necessary steps to fix the criteria for age relaxation for persons with disabilities in tune with the statutory provisions.”, the Court stated.

Regarding grace marks, the Court noted that the petitioner was not marked as per the reservation policies applicable to a disabled candidate. The Court thus directed the respondents to create a level playing field for the disabled and fix up relaxed criteria for such a category. It thus held that the respondents shall fix grace marks for disabled candidates as and when the next notification will be issued.

On filling up of backlog vacancies of PwD candidates, the Court found that backlog vacancies have been ascertained and shall be finalized without delay. Relying upon the decision in Kerala Public Service Commission & Anr. v. E. Dineshan & Ors (2016) and Apex Court decisions in Government of India and another v. Ravi Prakash Gupta and another (2010), Union of India and another v. National Federation of the Blind and others (2013), Court held that backlog vacancies for PwD candidates shall be filled up expeditiously.

Relying upon the Apex Court decision in Rajeev Kumar Gupta v. Union of India (2016), the Court stated that identification of posts for PwD candidates was imperative as per the provisions of the 2016 Act.

“Therefore, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PwD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three percent must follow (4% after the coming into force of Act 49 of 2016). Once the post is identified, it must be reserved for PwD irrespective of the mode of recruitment adopted by the State for filling up of the said post.”, the Court stated.

Referring to the Apex Court decision in Reserve Bank of India and Others v A.K. Nair and Others (2023), the Court held that Courts shall not remain as mute and dumb spectators when disabled persons are deprived of their rights in the field of public employment. Furthermore, the Court held that providing opportunities to PwD candidates by enacting the 2016 Act was a statutory manifestation of the constitutional obligations.

It thus noted that the respondents have not complied with the constitutional commitments in granting opportunities to disabled candidates to enjoy constitutional guarantees of equality and non-discrimination.

Accordingly, the Court disposed of the writ petition and ordered the following:

1. to identify posts and work out backlog vacancies in tune with the provisions of the 2016 Act
2. initiate steps for fixing age relaxation and granting grace marks for disabled candidates as per the 2016 Act and Government Orders
3. to initiate a special recruitment drive for filling up vacancies for disabled candidates.

Counsel for the petitioner: Advocate Biju Sundar

Counsel for the respondents: Standing Counsel Elvin Peter P J, Advocates K R Ganesg, Gouri Balagopal, Abhijith K Anirudhan, Sreelekshmi A S

Citation: 2023 LiveLaw (Ker) 760

Case title: Biju Sundar v State of Kerala

Case number: WP(C) NO. 15496 OF 2023

Click Here To Read/Download The Judgment