Lack Of Special Rules No Ground For State To Deny Promotion Under Rights Of Persons With Disabilities Act : Kerala High Court

The Kerala High Court recently observed that the provisions of the Rights of Persons with Disabilities Act, 2016, would have to be implemented by State authorities in the context of promotions for persons with disabilities, alongwith the various rulings of the Apex Court governing the field, without inordinate delay. 

The Bench added that in case effectuating the same required amendment of the statutory Special Rules, the same could not be a reason for delaying the specific objectives of the parliamentary legislation, and the directions issued by the Apex Court. 

"...we make it clear that the Union legislation, as per the Rights of Persons with Disabilities Act, 2016, will have to be complied with by the State authorities, especially in view of the various rulings of the Apex Court governing the field and even if there are no specific provisions in that regard, in the Statutory Special Rules and other executive orders, if any, in the matter of Rules of recruitment and methods of appointment, once the post is identified, there cannot be any further delay in the matter. The process for amendment of the Special Rules etc., may go on, but that cannot be the reason for delaying and frustrating the objectives of the parliamentary legislation as well as the specific directives and admonitions issued by the Apex Court, which, in the case of Leesamma's case (supra) [State of Kerala & Ors. v. Leesamma Joseph (2021)] has been specifically directed against the State of Kerala," the Division Bench comprising Justice Alexander Thomas and Justice C. Jayachandran observed.

The Case

The petitioner herein had initially been working as a Special Grade Cooperative Inspector in the Office of the Registrar of Cooperative Societies at the time of institution of the Application before the Tribunal. Subsequently, he was transferred and posted as Special Grade Auditor in the office of the Assistant Director (Audit), Nedumangad, Thiruvananthapuram. The petitioner claimed that since he is suffering from 40% disability of Post-Polio weakness for both limbs and would thus fulfill the eligibility for 'persons with disability' as defined under the Rights of Persons with Disabilities Act, 2016, he was entitled for reservation of persons with disability for promotion in the post 4% quota, as envisaged in Section 34 of the said legislation. 

The petitioner submitted that in spite of the Apex Court's declaration in Rajeev Kumar Gupta v. Union of India (2016) that 3% reservation shall be provided to persons with disabilities in promotion, irrespective of the mode of filling up of vacancies, the State Government had not implemented the same. The petitioner submitted that the promotions of persons with disabilities, including that of his own, had thereby been inordinately delayed. The petitioner also relied upon the decision in Siddaraju v. State of Karnataka & Ors. (2020), which held that the rule of no reservation in promotions that had been laid down in Indra Sawhney & Ors. v. Union of India (1992) would not be applicable to persons with disabilities, since the Act, 2016 provides for lateral reservation and not horizontal. Additionally, the petitioner stated that the Apex Court had also directed the State of Kerala to implement its directions in the aforementioned cases, in the case of State of Kerala & Ors. v. Leesamma Joseph (2021). 

It is the case of the petitioner that the State authorities were inordinately delaying the matter on the hypothetical ground that the statutory special rules and other norms, framed by the Government, would have to be amended, to provide for lateral reservation for persons with disabilities. The petitioner thus claimed that since his next promotion post of Assistant Registrar has already been identified and notified as suitable for appointment of persons with disabilities, he ought to be promoted to the said post against the vacancy. 

In the application before the Tribunal, the Tribunal directed the Registrar of Cooperative Societies to place the applicant's representation before the Departmental Promotion Committee (DPC), and to take a decision thereon, in light of the Government Orders notifying the vacancies. 

The Government Pleader submitted that in order to make the promotion against the posts identified, special rules would have to be amended, and that the proceedings for the same had already been completed. It was added that a seniority list differently abled candidates eligible for would then have to be prepared, for which more time was required, as the Tribunal had also recorded. 

Findings of the Court 

The Court thus directed the Registrar of Cooperative Societies to place the petitioner's representation before the DPC, and directed the latter t arrive at a decision on the same, on the basis of lateral reservation, as envisaged in the Act, 2016, without any further delay.

The Court was of the considered view that the Act, 2016 and the various directions of the Apex Court would have to be complied with, without further delay. 

The Court added that the process for amendment of the Special Rules could go on, but that the same could not be the reason for delaying and frustrating the objectives of the Act, 2016, and the specific directives and admonitions issued by the Apex Court in the previous decisions. 

The DPC was directed to complete the process of consideration of the petitioner's representation within two months. The Court thus disposed the petition. 

The petitioner was represented by Advocates Lindons C. Davis, E.U. Dhanya, N.S. Shamila, and Chinju P. Joyies. Senior Government Pleader K.P. Harish appeared on behalf of the respondents. 

Case Title: Radhakrishnan K. v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 456 

Case Number: OP(KAT) NO. 330 OF 2023 

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