Source: Kerala High Court 

Why in News? 

Recently, the bench of Justice D. K. Singh has held that reservation for persons with disabilities under Section 34 of the Rights of Persons with Disabilities Act, 2016 (RPwD Act), cannot be applied to Government Pleader and Public Prosecutor appointments as they lack a specific cadre strength. 

• The Kerala High Court held this in the matter of Mrs. Shinu K R v State of Kerala (2025). 

What was the Background of Mrs. Shinu K R v. State of Kerala Case? 

• The matter arose through writ petitions seeking mandamus for implementing reservation in favor of persons with benchmark disabilities for the position of Public Prosecutor in Pathanamthitta district. 
• The petitioners relied on Section 34 of the Rights of Persons with Disabilities Act, 2016, which mandates 4% reservation of total vacancies in cadre strength for persons with benchmark disabilities. 
• The appointment and service conditions of Public Prosecutors and Government Law Officers are governed by the Kerala Government Law Officers (Appointment and Conditions of Service) Rules, 1976. 
• As per Rule 8(9) of the 1976 Rules, the term of appointment for Government Law Officers at the district level is fixed for three years. 
• Rule 17 of the 1976 Rules empowers the Government to terminate any Government Law Officer's appointment before the expiry of term without assigning reasons, by giving one month's notice or salary in lieu thereof. 
• The petitioners contended that since Public Prosecutors are appointed by the Government, it constitutes public employment, thereby necessitating implementation of disability reservation. 
• The Government Pleader contested that Public Prosecutors are engaged contractually from the bar to defend cases, and there exists no formal cadre structure. 
• The matter primarily centered on whether the position of Public Prosecutor constitutes a cadre-based service warranting statutory reservation under the Act of 2016.

What were the Court’s Observations? 

• The Court held that the 4% reservation under Section 34 is specifically applicable against vacancies within an established cadre service structure. 
• The appointment of Government Pleaders and Public Prosecutors does not constitute appointment to a service with defined cadre strength. 
• The Court observed that no individual possesses an inherent right to be appointed as Government Pleader or Public Prosecutor. 
• The relationship between the Government and its legal officers is essentially that of client and counsel, rather than employer and employee. 
• Being the client, the Government retains the prerogative to engage the most competent advocates to represent its interests before courts. 
• The Court noted that public bodies have an obligation to engage the most competent legal representatives for safeguarding public interests. 
• The contractual nature of engagement of Public Prosecutors distinguishes it from regular public employment warranting statutory reservations. 
• The Court affirmed that the appointment and continuation of Government Pleaders and Public Prosecutors remains at the pleasure of the Government. 
• The absence of a formal cadre structure precludes the application of Section 34 reservations to these positions. 

What are the Rights of Persons with Disabilities Act, 2016? 

• The Act was enacted by the Indian Parliament to implement the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), replacing the earlier Persons with Disabilities Act of 1995. 
• The Act significantly expands the scope of disabilities from 7 types under the previous law to 21 types, including physical, mental, intellectual, and multiple disabilities. 
• A "person with disability" is defined as someone having long-term physical, mental, intellectual, or sensory impairment that hinders their equal participation in society when interacting with barriers. 
• The Act introduces the concept of "benchmark disability," defined as not less than 40% of a specified disability, as certified by the authorized certifying authority. 
• The legislation acknowledges persons with high support needs who require intensive assistance for daily activities. 
• The Act empowers the central government to notify additional categories of specified disabilities beyond the 21 types currently listed. 
• The comprehensive list of disabilities includes conditions like thalassemia, hemophilia, Parkinson's disease, and acid attack victims, which weren't previously recognized. 
• The Act represents a paradigm shift from the medical model to a rights-based approach in addressing disability issues in India. 

What is Section 34 of the Rights of Persons with Disabilities Act, 2016? 

• Every appropriate Government must ensure a minimum 4% reservation of total vacancies in the cadre strength within each group of posts in Government establishments for persons with benchmark disabilities. 
• The 4% reservation is distributed as 1% each for three categories:  
  • blindness and low vision,  
  • deaf and hard of hearing, and  
  • Locomotor disabilities including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy. 
• The remaining 1% is reserved for persons with (d) autism, intellectual disability, specific learning disability and mental illness, and (e) multiple disabilities including deaf-blindness. 
• Reservations in promotions shall follow instructions issued by the appropriate Government from time to time. 
• The appropriate Government, in consultation with the Chief Commissioner or State Commissioner, may exempt any Government establishment from these provisions based on the nature of work. 
• If vacancies cannot be filled due to the unavailability of suitable candidates with benchmark disabilities, they shall be carried forward to the next recruitment year and may be filled through interchange among the five categories. 
• If no person with disability is available even after interchange, the vacancy may be filled by a person without disability. 
• The appropriate Government has the authority to provide relaxation in upper age limit for employment of persons with benchmark disabilities.