Two persons with locomotor disability have filed a petition at the Kerala Administrative Tribunal, seeking to quash a 2013 circular by the Kerala Public Service Commission.

 Collage of Sakeer and Sreelesh, two differently abled men in Kerala Sakeer(left) and Sreelesh
news Rights Friday, December 24, 2021 - 18:00

Sakeer Hussain EP, an auto-rickshaw driver in Malappuram district of Kerala, had high hopes when he made it to the Kerala Public Service Commission’s final list of candidates for the positions of government teachers. He made it to the rank list twice – the first time for Junior Language Teacher Upper Primary School, which was published in December 2018, and the second was for Full-time Junior Language Teacher, which was published in December 2019. However, the 36-year-old man with a locomotive disability (club foot, which is a birth defect) is still awaiting his turn for a teaching position.

According to the rules of the Kerala Public Service Commission (the recruiting agency for government jobs in the state), a published rank list shall remain in force for a period of one year from the date of publication. The list will be valid for a period of minimum one year or maximum three years, after which a new rank list is published. In Sakeer’s case, the validity of the rank list published in December 2018 expired in December 2021. However, according to Sakeer, between the three-year period, there has been no notification for an appointment under the “Physically Handicapped (PH)” category and the position still lies vacant. Other candidates on the list were able to avail vacancies in the post as full-time Junior Language Teacher (Arabic UPS) in the Education Department, Thiruvananthapuram, he alleged. 

Sakeer is the sole candidate among persons with disabilities in both the 2018 and 2019 lists for the post of Junior Arabic Language teacher. “The validity of the second rank list will also be over soon, and my hopes of getting a government job, as legally reserved for people with disabilities, is also fading,” Sakeer told TNM. His fear of not making it to the subsequent rank lists is founded on a circular issued by the PSC in April 2013, which, he said, has hindered his professional growth and that of other persons with disabilities. 

The Kerala PSC circular essentially states that if a person with a disability is not available for a posting for two years in a row, then it can be filled by a non-disabled person — and the vacancy for a disabled person need not be re-notified. However, in the circular, the PSC announced that the notification for job vacancies will be published once in one or three years, till the time the rank list expires.

It is not just Sakeer, but Sreelesh, a resident of Kozhikode with locomotive disability, too, is disconcerted by the circular. Sreelesh, too, is the lone disabled candidate in the rank list for the post of Junior Instructor (Tool and Die Maker) in the Industrial Training Department. The rank list was published in July this year, however, he fears the circular could impede his prospects of getting a government job. 

In two separate petitions in November this year, both Sakeer and Sreelesh, who come under the locomotive (orthopaedic) disability category, have challenged the circular at the Kerala Administrative Tribunal, seeking to quash it the circular. They contended that the circular equates Selection Year with Recruitment Year, thereby going against the Rights of Persons With Disability Act, 2016. 

Why the circular is against disabled persons

The Persons with Disabilities (PWD) Act, 1995, allowed 3% reservation for persons with disabilities for government services. With the introduction of the Rights of Persons with Disabilities (RPWD) Act, 2016, the reservation quota was increased to 4%. 

If candidates for various government posts are interviewed and found suitable for a post by the Public Service Commission, they make it to the rank list. The list is divided into the Main List and Supplementary List, under which features the list of disabled candidates for appointment against the 3% (or 4%) earmarked vacancies. There are three disability categories –  ‘low vision’, ‘hearing impairment’ and ‘locomotor disability.’ First priority in the rank list is given for those with low vision, second for those with hearing impairment and then for people with locomotor disabilities. Sakeer is a first-rank holder in the 2018 supplementary rank list for disabled people, while the other two categories remain nil. 

Under both Central Acts (PWD Act 1995 and RPWD 2016), if a suitable disabled candidate in the ranked list is not available to fill the vacant post in any recruitment (calendar) year, it can be re-notified the following recruitment year. If an eligible candidate is still not available, the post can be filled by interchange among the three disability categories. For instance, if a rank-list candidate with visual impairment is not available, the post vacant can be occupied by ranked candidates from either of the other two categories. 

However, if no suitable disabled candidate is available for the third consecutive year, then the post in question can be given to a non-disabled person.  

In the circular (dated April 10, 2013), the state PSC said it held discussions to assess if the re-notifications were necessary for vacancies for disabled persons on rank lists, and decided to scrap the process. 

While the circular cites the relevant ‘vacancy filling’ provision of the PWD Act 1995, it also cites Rule 15(a) of the Kerala State and Subordinate Service Rules (KS&SSR). The Rules cover the method of recruitment, seniority and promotion under the Kerala Public Service Act. 

“As per Rule 15(a) of KS&SSR, the rank list is valid only for one Selection year (recruitment year)," read the circular. This is what Sakeer and Sreelesh have contested.  

The circular equates “recruitment year” in the Central Act with “selection year” in the Kerala State and Subordinate Service Rules. “Selection Year,” as defined in the KS&SSR, is the validity of the rank list, which is one year or maximum three years. The recruitment year, on the other hand, is effectively only one calendar year.  

“The term ‘recruitment year’ has not been defined in the Act of 2016. However, the intention of the Legislature is clear that the vacancies in a recruitment year will be calculated annually, i.e. on a calendar year basis,” Sakeer said in his petition.

The Kerala Public Service Commission’s decision to not re-notify the vacancies based on selection year means that the suitable disabled candidate will be notified only once in the three-year validity of the rank list. The opportunity will then go to persons in the general category. 

“Until then, the applicant will have to wait for more years for a new notification to the post and secure a place in the rank list again to be eligible for appointment,” the petition said.

According to the circular, if suitable candidates are not available in the “Physically Handicapped (PH)” category of rank lists, instead of notifying such vacancies again, such vacancies may be kept as ‘Vacancy pending due to non-availability of PH candidate and to be advised from the next ranked list.’ This vacant post would be filled up in the next Selection Year and the rank list will be prepared thereon. And if no eligible person with disabilities is available in the succeeding Selection Year also, the post may be filled by interchange among the three disabled categories. But when no person with a disability is available for the post in that Selection year, the vacancy can be filled by other persons, from those with no disabilities.

“This circular is against the Right of Persons with Disabilities Act. A circular cannot go against the mandate of the parent Act. This stands in the way of getting jobs for people like Sakeer, which they duly deserve,” Raghul Sudheesh, the counsel of Sakeer Hussain, told TNM.

The Supreme Court has said such circulars have no validity in the eyes of law, he added. “In 2014, the Kerala High Court had asked the Kerala PSC to introspect on the circular and observed that this circular is against what the Act seeks to achieve. The circular survived the legal challenge before the Kerala High Court in 2014 only for the reason that it was not a subject matter of challenge before the High Court,” Raghul said.

“In both my rank lists, I am the only person in the disabled category. As per the circular, the first priority under the PH category in the rank list is for the blind, second for those with hearing impairment and then for people with locomotor disabilities. This makes me eligible for the post as there was no blind and deaf person on the rank list. Still, they haven't sent me the appointment letter, citing the letter,” Sakeer said. 

“The PSC is waiting for the validity of the rank list to expire, so they would not need to re-notify the vacancy and one from the general category would be selected from the next rank list,” alleged Sreelesh. 

“This has been done with the belief that disabled persons won’t react or won’t protest. This has prompted me to challenge it,” said Sreelesh, who now works in a private firm on a temporary post and is the sole breadwinner in his family of four.

“The appointment of persons with disabilities is one of the welfare measures envisaged by the provisions of the Central Acts. In every recruitment, 3% or 4% of the vacancies have to be earmarked for such candidates. Therefore, efforts will have to be taken to fill up the vacancies in accordance with the provision of the Central Acts," Sakeer said in his petition, adding that the circular not only violates his rights under the Central Acts, but rights prescribed in Articles 14 (equality before the law), 16 (right to equal opportunity for public employment) and 21 (no person shall be deprived of his life or personal liberty) of the Constitution of India.

The petition sought to call for the records that led to the drafting of the circular and to quash the same, and allow the original application. It also urged the Tribunal to direct the state government and the district officer of the PSC. 

The Tribunal has issued a notification to the PSC for their responses to both petitions. 

“Making it to a PSC rank list is not an easy task given the tough competition. We fear if we can ever make it to the list again because of the age limit (35 years, with five-year relaxation for disabled persons),” Sakeer said. Besides, for an Arabic teacher, there are fewer vacancies in the state as it is not taught in all schools. “This makes my situation even grimmer,” Sakeer said. 

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