Differently-Abled Employee Cannot Be Punished For Govt's Failure To Provide Infrastructural Facilities: Kerala High Court

The Bench of Justice A. Muhamed Mustaque and Justice Johnson John made this observation in a case filed by T. Rajeev who has 60% locomotor disability due to post-polio residual paralysis. He was working as a Senior Grade typist in the Motor Vehicle Department. Due to his inability to climb to the upper floor of the building where the office was situated, he sought an inter-departmental transfer as an LD Typist in the Thalappilly Subdivision office of the Irrigation Department which was on the ground floor of the same building. In the request, he had also sought for protection of pay. After multiple rounds of litigation, the government made the transfer as per his request but he was given only the salary of an LD typist which was lesser than the salary he drew as a Senior Grade typist.

The Court observed that the employee cannot be punished for State's failure to fulfil its duty of making public places accessible to differently abled persons.

“It is the duty of the Government to ensure that the infrastructural facilities in public places are accessible to the differently abled persons. The physical environment of a building must be friendly to differently abled persons. If there is failure on the part of the Government to provide such facilities, a Government servant cannot be forced to work against his bodily ability. If any public place remains inaccessible to differently abled persons, the failure cannot be construed to their detriment.”

The Court specifically pointed to Sections 3, 20 and 45 of the Rights of Persons with Disabilities Act which mandates that the Government should not discriminate among their employees based on their disability and they should be given reasonable accommodation. The Government is also entrusted with making all public places accessible.

Background of the Case

Rajeev had initially moved the Kerala Administrative Tribunal to be posted as a Senior Grade Typist at a convenient place and to set aside the disciplinary action initiated against him. The Tribunal set aside the disciplinary action and directed the official to pass orders on the application for inter-departmental transfer sought by Rajeev.

Subsequently, the Government passed orders saying that inter-departmental transfer cannot be considered due to a government order and the pay of the applicant cannot be protected after transferring him to a lower post. The Tribunal had directed the authorities to consider the application in light of the provisions under the Right of Disabilities Act.

However, the government rejected the application without considering the Act. Rajeev filed a contempt application before the Tribunal. Before the application was decided, government transferred Rajeev as per his request. However, he was paid the reduced salary of the LD Typist. Against this, he approached the Tribunal.

The Tribunal held that Rajeev is entitled to the salary of a Senior Grade Typist and anything contrary to it will violate the provisions of Rights of Persons with Disabilities Act. Against this order, the State approached the High Court.

Observations of the Court

The Court said that in this case, Rajeev himself came up with the solution when the Government was responsible. The Court said that the Government was responsible for protecting the pay of the employee. The Court said that if the Government is not inclined to protect the pay, then the employee shall be repatriated to the Motor Vehicle Department. The Court added that the Government can assign the employee only duties and works that is in conformity with the Rights of Persons with Disabilities Act, 2016. It further clarified that the employee shall not be made to work by climbing the stairs to reach the upper floor.

The government is directed to make appropriate orders within a month. It was further directed to pay Rajeev the salary of a Senior Grade Typist till his repatriation.

Counsel for the Petitioners: Adv. A. J. Varghese (Senior GP)

Counsel for the Respondents: Advocates M. A. Vaheeda Babu, Babu Karukapadath, P. K. Abdul Rahiman, Arya Raghunath, Karukapadath Wazim Babu, P. Lakshmi, Aysha E. M., Hashim K. M., Manu Krishna S. K., Abusail A. K., Haniya Nafiza V.S., M. I. Insaf Mooppan, Rishi Vincent

Case No: OP (KAT) 51/ 2025

Case Title: State of Kerala and Others v T. Rajeev

Citation: 2025 LiveLaw (Ker) 317