Delay In Special Rule Amendments Must Not Hinder With Rights Of Persons With Disabilities For Timely Promotions: Kerala High Court
The Kerala High Court directed the State to ensure effective implementation of reservation in promotions for Persons with Disabilities. The instant petition challenged the interim order issued by the Kerala Administrative Tribunal.
The Division Bench of Justice Alexander Thomas and Justice C. Jayachandran observed, "Accordingly, 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..."
The petitioner sought modification of the interim order by requesting a direction to the 3rd respondent to consider the petitioner's claim for further promotion to the post of Assistant Registrar of Cooperative Societies, with reservation for Persons with Disabilities.
Advocate Lindons C. Davis appeared for the Appellant and Senior Advocate K.P. Harish appeared for the Respondents.
The petitioner asserted that the State of Kerala should comply with the directives of the Rights of Persons with Disabilities Act, 2016, and other relevant rulings, ensuring that lateral reservation is implemented for promotions within a reasonable timeframe.
In response to these contentions, the Government Pleader submitted that the State has initiated proceedings to amend Special Rules and prepare a seniority list of eligible candidates for promotion. However, more time is required to complete these processes.
The Court noted that the petitioner, in this case, had previously worked as a Special Grade Cooperative Inspector and was later transferred to the position of Special Grade Auditor. The petitioner claimed to have a 40% disability due to Post-Polio weakness in both limbs, qualifying as a "person with a disability" under the Rights of Persons with Disabilities Act, 2016.
The Court noted the petitioner’s contention that despite the Supreme Court's ruling in Rajeev Kumar Gupta v. Union of India, which mandated 3% reservation for persons with disabilities in promotions, the State of Kerala had not implemented this requirement.
The Court considered the case of Siddaraju v. State of Karnataka, cited by the petitioner where it was held that the rule of no reservation in promotions, as laid down in the Mandal verdict, did not apply to persons with disabilities. Instead, lateral reservation was mandated by the Acts of 1995 and 2016. However, the State of Kerala had not implemented lateral reservation for persons with disabilities.
The Court further noted that the High Court had earlier directed the implementation of lateral reservation for promotion based on the Central Act, and the State of Kerala had challenged this decision in the Supreme Court. The Supreme Court, in State of Kerala and others v. Leesamma Joseph, had directed the State of Kerala to implement the judgments in Rajeev Kumar Gupta's case and Siddaraju's case, and to provide reservation in promotions within three months.
The Court observed that despite these directives, the State authorities were still delaying the process by citing the need to amend special rules. The Court agreed that the delay was unjustified and that the State should not frustrate the objectives of the Acts and Supreme Court directives.
The Court said, “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”
The Court, however, noted that the State had submitted that the process of amending Special Rules had already commenced and that a seniority list of eligible differently-abled candidates needed to be prepared. In response, the Court ordered the Registrar of Co-operative Societies to place the petitioner's representation before the Department Promotion Committee (DPC) for consideration. The Court emphasized that the State authorities must comply with the Rights of Persons with Disabilities Act, 2016, and ensure that the matter was not unduly delayed. The DPC was directed to complete its process within two months.
Consequently, the impugned interim order was modified to reflect these directions.
Cause Title: Radhakrishnan K v. State of Kerala & Ors., [2023:KER:48679]
Click here to read/download Judgment