The Kerala High Court directed the State Government to comply with section 34 of the Right of Persons with Disabilities Act, 2016 (Act) and implement measures ensuring equal opportunities for Persons with Disabilities (PwDs) in appointments to Higher Judicial Services.

The Court noted that denying PwDs equal opportunities in public employment not only gravely harms human rights but erodes constitutional ideals, causing extreme mental agony and pain.

The respondents shall act strictly in tune with the provisions of Section 34 of Act 49 of 2016 and work out the backlog of vacancies for the PwDs on the total cadre strength in the identified posts and category… The respondents shall simultaneously initiate all measures to fix the criteria for age relaxation for persons with disabilities in tune with the Statutory Provisions and Government orders governing the subject and also consider granting grace marks to PwDs to operationalise and give concrete shape to the promise of full and equal citizenship held out by the Constitution to the disabled and to execute its ethos of inclusion and acceptance”, the Bench of Justice Raja Vijayaraghavan V observed.

Standing Counsel Elvin Peter P. J. appeared for the State

The Petitioner, a resilient individual facing a 40% locomotor disability, was a determined member of a Scheduled Caste. Despite his challenges, he excelled academically, holding a Bachelor's in Electrical and Electronics Engineering, an MBA, and an LLM degree. He was practising as an Advocate and challenged a notification inviting applications for the appointment of District and Sessions Judge in the Kerala State Higher Judicial Service through direct recruitment from the bar.

The Petitioner sought direction against the Kerala High Court and State Government to annul the said notification and release a new notification with a designated vacancy for Persons with Disabilities (PwD) candidates for the position of District and Sessions Judge in the Kerala State Higher Judicial Service (KSHJS) through direct recruitment from the Bar.

Firstly, the Court noted the Petitioner's claim regarding age relaxation under Section 34(3) and observed the lack of a concrete decision regarding its applicability for District Judges. This inaction, coupled with the delayed implementation of the Act, prompted the Court to urge the State to establish clear statutory criteria for age relaxation for PwDs.

Secondly, the Court accepted the Petitioner's contention regarding the grant of grace marks, citing the discrepancy between the notification and the Kerala Higher Judicial Service Rules. The list of qualified candidates further strengthens the Petitioner's case, demonstrating his merit despite falling short of the PwD reservation cut-off.

Additionally, the Court referred to the case of Reserve Bank of India and Others v A.K. Nair and Others [2023 SCC OnLine SC 801] and reiterated that denying the rights and privileges to persons with disabilities, particularly in the realm of public employment, would have severe consequences, leading to the erosion of constitutional ideals and human rights. The Court emphasised that in such situations, the courts should not remain silent and should not condone breaches and violations committed by employers or establishments who engage in unlawful practices.

Furthermore, the Court emphasizes the need for equitable opportunities for PwDs through established criteria and relaxed standards. Drawing upon existing government orders granting grace marks, the Court instructs the State to formulate clear guidelines for future notifications.

Finally, the Court noted the crucial issue of backlog vacancies for PwDs, highlighting the State's obligation to fill these positions as mandated by government orders and court directives. The Court's disappointment at the respondents' lacklustre compliance with constitutional commitments underscores the need for immediate rectification and a renewed commitment to inclusivity. Therefore, the Court dismissed the prayer seeking to quash the impugned notification. The High Court and State Government are directed to adhere to the provisions of Section 34 of the Act and address the backlog of vacancies for Persons with Disabilities (PwDs) by providing 3% reservation.

Simultaneously, the State must establish criteria for age relaxation for PwDs following statutory provisions and government orders, considering the grant of grace marks. The entire process must be completed within three months from the date of receiving the judgment, followed by a special recruitment drive to fill the vacancies as per statutory requirements.

Accordingly, the Court disposed of the Petition.

Cause Title: Biju Sundar v High Court Of Kerala (2023/KER/82109)

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