Reservation Provided Under Rights Of Persons With Disabilities Act Is Confined To Posts Identified By Appropriate Government: Kerala HC

The Kerala High Court observed that reservation provided under Section 34 of the Rights of Persons with Disabilities Act is confined to the posts which are identified by the government for persons with benchmark disabilities under Section 33. As per Section 33, the appropriate Government shall identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34. For identification of such posts the government has to constitute an expert committee with representation of persons with benchmark disabilities. The government also has to undertake periodic review of the identified posts at an interval not exceeding three years.The petitioners worked as Section Officers at M.G. University. They belonged to the category of benchmark disability of more than 40%. The petitioners were thus aggrieved by rejection for further promotion in the differently abled quota.It was their contention that the proviso to Section 34 (Reservation) provides that reservation in the promotion shall be per such inspection as issued by the appropriate Government from time to time. Building on this, they drew the Court's attention to the Office Memorandum issued by the Central Government. As per this, for promotions by non-selection, the eligible candidates with benchmark disabilities within the normal zone of consideration shall be considered for promotion against the reserved vacancies.On the other hand, the University argued that the government order instead pertained to reservations for appointment in aided Schools and aided Colleges. Further, the University has been following the State Government orders. In this background, the matter reached before the High Court.At the outset, Justice N. Nagaresh observed that the petitioners have a normal promotional avenue to the post of Assistant Registrar / Deputy Registrar / Joint Registrar. However, the promotional posts have not been identified as suitable for granting reservations to persons with disabilities. Thus, unless the university does not identify higher promotional posts, such as those of the petitioners, the petitioner could not claim any legal right for promotion. It said:“Going by the Rights of Persons with Disabilities Act, 2016, the reservation contemplated under Section 34 of the Act can be only against the posts identified for reservation under Section 33. Section 33 provides that the appropriate Government shall identify posts in the Establishment which can be held by the respective category of Persons with Benchmark Disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34.”“As long as higher promotional posts of the petitioners, such as Assistant Registrar / Deputy Registrar / Joint Registrar are not identified by the University for appointment of the physically disabled candidates, the petitioners do not have any legal right to claim promotion.”In view of this, the present writ petitions came to be dismissed by the Court.Case name: SHOYAB K.A and another v. State of Kerala and others., WP(C) NO. 15097 OF 2024Citation: 2025 LiveLaw (Ker) 37Click Here To Read/Download Order

Reservation Provided Under Rights Of Persons With Disabilities Act Is Confined To Posts Identified By Appropriate Government: Kerala HC

Gyanvi Khanna

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