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2025 Supreme(Ker) 1542
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, JOHNSON JOHN, JJ.
The State Of Kerala - Appellant
Versus
Sri. T. Rajeev, S/o.Late Raman Kutty - Respondent
OP(KAT) No. 51 of 2025
Decided on : 26-05-2025
Advocate Appeared:
For the Appellant : ADV SENIOR GOVERNMENT PLEADER SHRI A.J. VARGHESE
For the Respondent: M.A.VAHEEDA BABU, BABU KARUKAPADATH(B-13), P.K.ABDUL RAHIMAN(A-28), ARYA RAGHUNATH(K/000474/2018), KARUKAPADATH WAZIM BABU(MAH/8319/2019), P.LAKSHMI(K/001868/2021), AYSHA E.M.(K/001130/2022), HASHIM K.M.(K/002518/2023), MANU KRISHNA S.K.(K/002737/2023), ABUASIL A.K.(K/001702/2024), HANIYA NAFIZA V.S.(K/003695/2024), M.I.INSAF MOOPPAN(K/001274/2025), RISHI VINCENT(K/001082/2025)
The Government must protect the pay of differently abled employees during inter-departmental transfers and ensure a conducive work environment as mandated by the Rights of Persons with Disabilities Act, 2016.
Headnote:
(A) Rights of Persons with Disabilities Act, 2016 - Sections 3, 20(1), 20(2), and 45 - Employment rights of differently abled persons - The Tribunal ordered the Government to protect the pay of a differently abled employee during inter-departmental transfer, emphasizing the duty to provide a conducive work environment. (Paras 4, 8, 10)
(B) Disciplinary action - The Government's failure to provide accessible infrastructure cannot justify disciplinary measures against a differently abled employee. (Paras 8, 10)
Facts of the case:
The respondent, a differently abled Senior Grade Typist, sought a transfer to a ground-floor position due to his disability. The Government initially rejected his request, leading to a Tribunal order favoring him.
Findings of Court:
The Tribunal ruled that the respondent is entitled to his previous salary as a Senior Grade Typist, and any reduction violates his rights under the Disabilities Act.
Issues: The main issues were the protection of pay during transfer and the adequacy of the Government's response to the employee's disability.
Ratio Decidendi: The court held that the Government must ensure a physically accessible work environment and cannot deny pay protection during transfers.
Result: Original petition allowed.
Based on the provided legal document, the key points are as follows:
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The case involves a differently abled government employee, Shri T. Rajeev, who sought a transfer to a ground-floor position due to his physical disability, specifically post-polio residual paralysis resulting in 60% locomotor disability (!) (!) .
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The Tribunal ordered the government to consider his transfer request in accordance with the Rights of Persons with Disabilities Act, 2016, emphasizing the need for accessible infrastructure and protection of his pay during transfer (!) (!) .
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The government initially rejected his transfer request, citing existing government orders and the limited scope of inter-departmental transfers, without adequately considering the disability rights provisions (!) .
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The Court held that under the Rights of Persons with Disabilities Act, 2016, the government has a statutory duty to ensure accessible infrastructure and reasonable accommodation for differently abled employees, and cannot deny pay protection during transfers that are necessitated by disability (!) (!) .
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The Court emphasized that the physical environment of public workplaces must be accessible, and failure to provide such facilities cannot justify disciplinary actions or denial of rights for differently abled employees (!) .
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The Court further clarified that if the government cannot protect the employee’s pay during transfer, the employee must be repatriated to the original department, where duties conform to his disability rights (!) .
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The Court set aside the government’s order denying transfer and directed the government to repatriate Shri Rajeev to the Motor Vehicles Department, ensuring he is provided with an environment conducive to his abilities, including pay protection (!) (!) .
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The Court also noted that the employee’s continued work in the irrigation department was based on an order that did not consider his rights under the disability law, and thus was unsustainable (!) .
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The Court concluded that the government must pass appropriate orders within one month to comply with the rights and protections afforded to differently abled employees under the relevant legislation (!) .
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Overall, the judgment underscores the importance of compliance with disability rights legislation, specifically regarding accessible infrastructure, non-discrimination, and protection of employment rights for persons with disabilities in government employment.
JUDGMENT :
A.Muhamed Mustaque, J.
The respondent herein, Shri T. Rajeev is a differently abled person with 60% locomotor disability arising out of post-polio residual paralysis. Shri. Rajeev, while working as a Senior Grade Typist in the Motor Vehicles Department, approached the Tribunal with two different original applications. His prayers were that he should be posted at a convenient place conducive for him to work as a Senior Grade Typist and also to set aside the disciplinary action initiated against him.
2. The Tribunal vide a common order in O.A.(EKM) Nos. 52/2020 and 1163/2021, dated 11/11/2021, set aside the disciplinary action and directed the official respondents to pass orders on the application for inter-departmental transfer. This inter-departmental transfer was sought by Shri. Rajeev, pointing out that he was unable to climb the upper floor of the building where the office of the Motor Vehicles Department is located and he may be posted as LD Typist in the Thalappilly Subdivision office of the Irrigation Department, located on the ground floor of the same building.
3. While making the request, Shri Rajeev had specifically pointed out that it is on account of his physical disability that he was seeking a transfer to a place where he can work.
4. The Government considered his request and vide order dated 13/07/2022, rejected it, stating that his request for inter- departmental transfer cannot be considered in light of the relevant Government Order, and that there is no provision to protect the pay upon transfer to a lower post. The rejection was also based on the ground that inter-departmental transfer is limited to 10% of vacancies occurring in the department. In fact, this was passed overlooking the order of the Tribunal in O.A.(EKM) Nos. 52/2020 and 1163/2021, dated 11/11/2021, which specifically directed the Government that his application shall be considered in the light of the provisions under the Rights of Persons with Disabilities Act, 2016 and also resorting to Rule 39, Part II, KS&SSR, 1958. Shri Rajeev appears to have filed a contempt petition (EKM) No. 143 of 2022 in O.A.(EKM) No. 52/2020. Finally, apprehending contempt action, the Government passed an order on 29/11/2022 allowing his claim invoking Rule 39, Part II, KS&SSR, 1958 and ordered posting him as LD Typist at Thalappilly Sub Division Irrigation Office. It is to be specifically adverted here that the Government, while passing such an order, did not reject the claim made by Shri Rajeev in his application for transfer regarding the protection of his pay in the post he was holding in the Motor Vehicles Department. The Government, while passing the order dated 29/11/2022, issued a direction that his pay be fixed by the Irrigation Department in consultation with the Finance and Law Department. Thereafter, Shri Rajeev entered the service of the Irrigation Department. He was paid only the salary applicable to an LD Typist, which is a reduced salary compared to the salary drawn by him as a Senior Grade Typist in the Motor Vehicles Department. Shri Rajeev challenged this action before the Tribunal. The Tribunal, after adverting to the provisions of the Rights of Persons with Disabilities Act, 2016, ordered that Rajeev is entitled to a salary of a Senior Grade Typist and any reduction of his salary would violate the provisions of the Rights of Persons with Disabilities Act, 2016 .
5. This original petition is filed by the State questioning the order of the Tribunal.
6. We heard the learned Government Pleader, Adv. Varghese and the learned counsel for the respondent, Adv. Waheeda Babu.
7. We shall advert to the case of Shri Rajeev from the perspective of the Rights of Persons with Disabilities Act, 2016 .
7.(i). Section 3 of the Rights of Persons with Disabilities Act, 2016 states as follows:
“3. Equality and non-discrimination.—(1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect
