State Disability Commissioner Cannot Adjudicate Upon Service Matters Or Direct Appointment To Civil Services: Kerala High Court

The Kerala High Court on Friday held that the State Commissioner for Persons with Disabilities cannot make an adjudication on a service matter or direct appointment of a person to civil services of the Central Government or the State Government.

Justice N. Nagaresh perused Sections 80-83 of the Rights of Persons with Disabilities Act, 2016, and observed that, 

"A reading of Sections 80 to 83 would show that the State Disability Commissioner has power only to advise and make recommendations to appropriate authorities". 

Additionally, the Court observed that pursuant to the enactment of the Administrative Tribunals Act, 1985, all service matters pertaining to appointment to Central Government and State Government services are to be adjudicated by the Administrative Tribunals constituted under the Act.

Particularly, the Court took note of Section 15 of the Administrative Tribunals Act, 1985 which states that the Administrative Tribunal for a State shall exercise all the jurisdictions, powers and authority in relation to recruitment and matters concerning recruitment to any civil service of the State or to any Civil Post under the State. Further, the Court also observed that as per Section 28 of the statute, "no court except the Supreme Court or any interstate Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters".

It was therefore observed that the Disability Commissioner had exceeded his jurisdiction in giving mandatory directions to effect appointment of the second respondent herein, namely, V.R. Jayasree, as the Legal Assistant Grade-II in the Law Department, Government Secretariat. 

The 2nd respondent, who suffered from hearing impairment, had applied for appointment to the post of Legal Assistant Grade-II in the Law Department, Government, Secretariat, in response to a notification issued by the Kerala Public Service Commission. The 2nd respondent had filed a petition before the State Commissioner for Persons with Disabilities, Kerala alleging that the Kerala PSC was not paying any heed to the judgments that had directed filling up of backlog vacancies for the differently abled persons, in the matter of appointment to the posts of Legal Assistants. 

The Kerala PSC on the other hand, averred that the post of Legal Assistant had to be filled up by Persons with Low Vision and Persons with Locomotor Disability, and the Original Rank List had been published after including only the said two categories. Pursuant to issuance of a GO dated November 26, 2018, including 'Hearing Impaired' category also as being fit for appointment, the Kerala PSC issued an addendum notification dated December 4, 2019, including such persons as well. It was averred that the 2nd respondent herein was Rank 2 in the supplementary list, and the candidate at Rank 1 had been given appointment as Legal Assistant. It was submitted that since the turn for Hearing Impaired did not reach, the 2nd respondent was not appointed and the validity of the Rank List expired on September 24, 2020. 

The State Commissioner noted that in Kerala Public Service Commission & Anr. v. E. Dineshan & Anr. (2016), it had been held that the supplementary list would be operative even after the expiry of main list and for filling up backlog vacancies, the said supplementary list could be acted upon even after the expiry of main list. It accordingly directed the PSC to issue advice memo and the Law Secretary was directed to compute backlog vacancies and report one such vacancy to PSC. The 2nd respondent was directed to be accommodated in a supernumerary vacancy. It is against the same that the Kerala PSC has filed the present writ. 

It was submitted by Advocate P.C. Sasidharan on behalf of the petitioner that the State Disability Commissioner ignored the functions assigned and powers conferred on it under Section 80(b) of the Act, 2016, while issuing the directions. It was submitted that the State Disability Commissioner was only conferred with the power to give advice to the appropriate authorities, and had thus exceeded his jurisdiction in the present case. It was also argued that the State Disability Commissioner was neither a Court nor a Tribunal to adjudicate the issue, but was only a recommendatory body. "The directions given by the Commissioner are legally unsustainable as the Commissioner cannot revalidate or keep alive a ranked list which is already expired," it was averred. 

On the other hand, the counsels for the 2nd respondent contended that the petitioner PSC had not disputed the eligibility of the 2nd respondent for getting appointment in the light of the statute, but was only disputing the same on the ground of technicalities. It was submitted that in light of the Apex Court decisions, the 2nd respondent has a right to get appointed against backlog vacancies which ought to have been reserved in favour of the persons with disabilities. "Non-identification of posts cannot be a reason to defeat the rightful claim of the 2nd respondent, asserted the counsel for the 2nd respondent," it was argued. 

The respondents were represented by Government Pleader Anima M., Advocates P.G. Jayashankar, P.K. Reshma, S. Rajeev, Sanjana V.H.,Vinitha S.T., Ruby K. Roy, and K. Vasudevan. 

Case Title: Kerala Public Service Commission v. State Disability Commissioner & Ors. 

Citation: 2023 LiveLaw (Ker) 213 

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