The Kerala High Court recently held that where a post has been reserved for blind/ hearing impaired candidates under Section 34 of the Right of Persons with Disabilities Act, 2016 (RPwD Act), candidates having locomotor disability cannot ordinarily raise a claim to be appointed to the said post, but only at the last instance where no such candidates originally eligible to the post are available.
"...going by Section 34 of the RPwD Act, even if the post in question was one which was deserving of being reserved for candidates under its ambit, it could have been offered only to a "blind" candidate and to no one else. It is only if no such candidate is available and consequently, a fresh notification issued, wherein, again persons from the "blind" or "the hearing impaired" categories are not available, can a person like the petitioner (Safeena), with locomotor disability, be considered", Justice Devan Ramachandran observed.
As per the facts, the respondent in the instant writ petitions, Safeena A., had alleged before the State Commissioner for Persons with Disabilities, Kerala (hereinafter the 'Commissioner') that Mr. Aboobacker E.K. had been appointed as an Assistant Professor by the Manager of the Sunniyya Arabic College (hereinafter the 'College'), in violation of the provisions of the RPwD Act.
It was contended by Safeena that the Manager of the College could not have filled up the post in question through a notification inviting candidates solely from the general category, since it ought to have been reserved for persons with disabilities under the RPwD Act, pursuant to the State Government orders implementing the Act and fixing roster posts for persons with certain disabilities. It was further pointed out that the vacancy was a backlog vacancy, and only persons with disabilities could have been invited, and Mr. Aboobacker had been appointed in flagrant violation of these provisions.
The Commissioner thereon, found favour with the aforesaid submissions and directed the Manager of the College to appoint Safeena to the post of Assistant Professor within three months, and not to approve the appointment of the said Aboobacker. The Manager was further directed to file an action taken report under Section 81 of the RPwD Act.
It is this order of the Commissioner that was challenged in the two writ petitions by the Manager of the College and by Aboobacker.
Findings of the Court
On finding that Safeena suffered from locomotor disability and not blindness or hearing impairment, the Court was of the view that the order of the Commissioner was liable to be set aside on this ground alone.
It was noted by the Court that the order by the Commissioner stating that, "there was no claim for appointment in the college raised by a person belonging to blind/low vision category, (and) the petitioner's claim for appointment under the locomotor disability/cerebral palsy is sustainable", could not find favour in law, "and the impugned order is axiomatically rendered liable to be set aside on that short ground alone".
Apart from this, the Court went on to observe that the question as to whether the vacancy in itself ought to have been reserved for persons under the RPwD Act ought to have been considered by the Commissioner before issuing the impugned order.
However, the Court did take note of the contention that the claim raised by Safeena was unethical since she had already been working as a High School Assistant in a Government School, while Aboobacker had been unemployed until offered the contested post. The Court was of the view that such ethical constraints were not relevant.
In this light, the Court set aside the order of the Commissioner, and directed the authority to reconsider the complaint of Safeena, as well as offer an opportunity of being heard to every party, including Aboobacker, which it had failed to do previously. The Court directed that appropriate order would thus have to be passed within a period of 4 months, and until such time, the status quo with respect to the appointment of Aboobacker ought to continue, and he would also be entitled to draw salary and emoluments for the period of his work.
The Manager of the College was represented by Advocates P.M. Pareeth and Aiswarya Venugopal, while Aboobacker E.K. was represented by Advocates S.P. Aravindakshan Pillay, N. Santha, V. Varghese, Peter Jose Christo, S.A. Anand, K.N. Remya, L. Annapoorna, Vishnu V.K., Abhirami K. Uday, and Kuruvilla Sabu Christy.
The Standing Counsel for Calicut University P.C. Sasidharan, Advocates P.M. Pareeth, P.K. Nandini, Aiswarya Venugopal, Najeeb P.S., Jubyraj A.P., A.P. Jayaraj, Jishamol Cleetus, and Government Pleader Resmi Thomas appeared for the various respondents in the two writ petitions.
Case Title: Manager, Sunniyya Arabic College v. State of Kerala & Ors and Aboobacker E.K. v. State of Kerala & Ors.