Recently, the Kerala High Court ruled that the State Commissioner for Persons with Disabilities lacks the authority to decide on service matters or to direct the appointment of an individual to civil services of the Central or State Government.
The Court further noted that following the enactment of the Administrative Tribunals Act, 1985, all service matters relating to appointments in Central and State Government services must be decided by the Administrative Tribunals established under the Act.
Brief Facts:
A person with hearing impairment applied for a job as Legal Assistant Grade-II in the Law Department of the Government Secretariat, in response to a notification from the Kerala Public Service Commission. The petitioner was ranked second on the additional list for candidates with hearing impairment. One Jayasree filed a complaint alleging that the Kerala PSC was not following judgments regarding filling vacancies for differently-abled persons. The Kerala PSC said that the original list included only candidates with low vision and locomotor disability, but a new government order included hearing-impaired candidates as well.
The petitioner was not appointed because there were only 44 appointments and the next turn for hearing-impaired candidates did not come up before the rank list expired. The State Commissioner for Persons with Disabilities while entertaining the plea noted that the Supreme Court in the case of the Government of India, through Secretary and another v. Ravi Prakash Gupta and another [2010 KHC 4433] has held that reservation for differently abled persons does not depend on identifying specific posts. Thus, the commission instructed the PSC to provide an advice memo and instructed the Law Secretary to determine the backlog vacancies and report a vacancy to the PSC. In addition, Jayasree was directed to be accommodated in a supernumerary vacancy. It is against the same that the Kerala PSC has filed the present writ.
Contentions of the Appellant:
The petitioner's counsel argued that the State Disability Commissioner exceeded its authority by issuing directives, disregarding the powers outlined in Section 80(b) of the Right of Persons with Disabilities Act. They stated that the Commissioner can only provide advice and lacks the power to adjudicate disputes or issue directives, rendering the directives legally unsustainable as they cannot extend an expired ranked list.
Contentions of the Respondent:
The respondent's counsel argued that the petitioner is clinging to technicalities and has not seriously disputed the respondent's eligibility. They pointed out that the petitioner had previously taken up the matter during the validity of the PSC Rank List and cannot argue that the list's expiry renders the 2nd respondent ineligible. The counsel relied on the Rajneesh Kumar Pandey and others v. Union of India (UOI) and others (MANU/SC/0997/2021) to argue that the Commissioner has the power to ensure that authorities fulfill their responsibilities in accordance with the Act. They also cited previous judgments (Kerala Public Service Commission and another v. E. Dineshan and others [2016 (3) KLT SN 21] ) to support the argument that the 1st respondent's order is justified, and this Court should not interfere with it.
Observations by the Court:
The High Court started by stating that the State Disability Commissioner is appointed under the Rights of Persons with Disabilities Act, 2016 which provides for rights and entitlements to persons with disabilities, including education, skill development, employment, social security, health, rehabilitation, and recreation. The Commissioner's functions are outlined in Section 80, which includes making recommendations to authorities. However, the court noted that the Commissioner only has the power to advise and recommend. In this case, the Commissioner has overstepped their jurisdiction by issuing mandatory directions to appoint the 2nd respondent as Legal Assistant Grade-II in the Law Department, which is not legally sustainable, the court held.
Another reason for which the High Court held that the commissioner’s order was illegal because the Commissioner directed the appointment of Jayashree as Legal Assistant in Public Services, which is a service matter that must be adjudicated by Administrative Tribunals under the Administrative Tribunals Act, 1985. Section 15 of the Act provides that the Administrative Tribunal for a State shall exercise all powers in relation to recruitment and matters concerning recruitment to any civil service of the State or any Civil Post under the State. As per Section 28, no court, except the Supreme Court, interstate Tribunals, Labour Courts, or other authorities established under the Industrial Disputes Act, 1947, or any other corresponding law, shall have the jurisdiction to exercise authority in recruitment or service matters, the court noted. Therefore, according to the court the State Disability Commissioner cannot direct the appointment of a person to civil services of the Central or State Government.
The decision of the Court:
The Court of the State Commissioner for Persons with Disabilities, Kerala's order was not legally sustainable.
Case Title: Kerala Public Service Commission v. State Disability Commissioner & Ors.
Coram: Hon'ble Mr. Justice N. Nagaresh
Case No.: WP(C) NO. 40580 OF 2022
Advocate for the Applicant: Advocate P.C. Sasidharan
Advocate for the Respondent: Government Pleader Anima M., Advocates P.G. Jayashankar, P.K. Reshma, S. Rajeev, Sanjana V.H., Vinitha S.T., Ruby K. Roy, and K. Vasudevan.
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