State Commissioner For Persons With Disabilities Can Only 'Recommend' KPSC To Provide Exam Centres Near Residence Of Disabled Candidates: Kerala HC

The Kerala High Court recently held that the order issued by the State Commissioner for Persons with Disabilities to the Kerala Public Service Commission (KPSC) directing it to provide candidates with disabilities, who are participating in its selection process, with examination centres near their residences, was beyond the scope of its powers. 

The Single Judge Bench of Justice Shaji P. Chaly perused Sections 80-82 of the Right of Persons with Disabilities Act, 2016 which lays down the powers and functions of the State Commissioner to hold that the impugned order thus passed by the Commissioner was without any jurisdiction. 

"The Commissioner, in my view, is not a civil court, even though powers are conferred on the Commissioner to exercise the powers conferred on the civil court for summoning and enforcing the attendance of witnesses etc., and for other consequential aspects, in accordance with Section 82 of the Act, 2016. In that view of the matter, I am of the considered opinion that Ext.P1 order suffers from vice of arbitrariness and illegality, liable to be interfered with under Article 226 of the Constitution of India", it was observed.

The second respondent in the case, who is a differently abled person, had submitted an application for having an examination centre near the house of differently-abled persons before the local MLA, who in turn, had forwarded the same to the State Government. The State Government on its part, submitted the application to the State Commissioner for Persons with Disabilities. The State Commissioner subsequently issued a direction to the KPSC that candidates with disabilities, who are participating in the selection process of the KPSC ought to be provided with examination centres near their residences. It was specified that the order had been issued by virtue of the power conferred on the Commissioner as a civil court. 

The writ petition had thus been filed by the KPSC challenging this order. 

On perusing Section 80 of the Act, it was observed, 

"Merely because a power is conferred on the State Commissioner to follow the procedure contained under the Code of Civil Procedure, 1908 while trying a suit in respect to summoning and enforcing the attendance of witnesses; requiring production of documents and others, that does not mean that the Commissioner is exercising the substantive powers under the Act, 2016, as if, it is a civil court". 

The Court discerned that the powers of the Commissioner were confined to Section 80 of the Statute. It added that Section 81 further clarifies that whenever the State Commissioner makes a recommendation to an authority in pursuance of Clause (b) of Section 80 of the Act, 2016, that authority shall take necessary action on it, and inform the State Commissioner of the action taken within three months from the date of receipt of the recommendation. 

"The case put forth by the KPSC is that no notice was issued to the KPSC. When the representation submitted by the second respondent was forwarded by the State Government to the Commissioner, the Commissioner has unilaterally passed the order and issued the directions. On a perusal of Section 80, it is clear that the Commissioner under the Act, 2016 is not vested with any such powers. If the Commissioner wanted to consider the grievances highlighted in the representation submitted by the second respondent, it ought to have made a recommendation to the KPSC as empowered under Section 80 of the Act, 2016. Therefore, it is clear that the Commissioner has over reached the powers conferred on it under the Act, 2016", it found. 

It is in this context the Court found that the order suffered from illegality and arbitrariness, and thus quashed the same. 

"However, I make it clear that this will not stand in the way of the Commissioner for making any suitable recommendation to the KPSC, or the Government in order to protect the interest of persons with disabilities in the matter of their appearance in the selection process conducted by the KPSC", it added. 

The Standing Counsel for KPSC Advocate P.C. Sasidharan appeared on behalf of the petitioner. Senior Government Pleader Joby Joseph also appeared in the instant case.

Case Title: Kerala Public Service Commission v. The State Commissionerate for Persons with Disabilities & Anr. 

Citation: 2023 LiveLaw (Ker) 64 

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