The Supreme Court has issued notice in a petition demanding reservation benefits for the posts of Additional Public Prosecutor and Additional Government Pleader under the Rights of Persons with Disabilities Act, 2016.

A Bench comprising Justices Vikram Nath and Sandeep Mehta sought the response of the State.

The petitioner, a practicing lawyer with 19 years of experience and a person with benchmark disability as per the RPwD Act, had applied for the post of District Government Pleader/Additional Public Prosecutor under the Kerala Government Law Officers (Appointment and Conditions of Service) Rules, 1978. She had previously submitted a representation in 2022 which was turned down on the reasoning that these posts are not part of a cadre, and hence reservation under Section 34 of the Act would not apply.

Section 34 mandates 4% horizontal reservation in vacancies arising within the cadre strength across different groups of posts in government establishments for persons with benchmark disabilities.

Before the Kerala High Court, the petitioner contended that Public Prosecutor appointments are public employment by the State and must therefore comply with the reservation mandate under Section 34. Conversely, the State argued that since there is no defined cadre strength for these posts and appointments are based on the Government’s choice of advocate — just as a client freely chooses representation — reservation provisions are inapplicable.

The Single Judge, relying on State of U.P. v. U.P. State Law Officers Association (1994), held that appointments or removals of Public Prosecutors and Government Pleaders fall under the Government’s discretion and are not covered by Section 34. It was observed that there exists no vested entitlement to such posts given that the Government, as the litigating party, has the right to choose “the best lawyers” to represent it. The writ petition was accordingly dismissed.

The Division Bench, while affirming the decision, further noted that the positions were not permanent and thus outside the ambit of reservation.

Challenging this view before the Supreme Court, the petitioner asserts that Section 34 does not differentiate between permanent, temporary, or tenure-based posts, and the High Court’s interpretation introduces a limitation absent in the statute. She contends that the ruling defeats the intent of the RPwD Act, which aims at ensuring inclusion of persons with disabilities in all forms of government service.

The plea also disputes the High Court’s analogy of the Government to a private litigant, arguing that as “State” under Article 12 of the Constitution, it cannot claim client-like absolute discretion inconsistent with statutory obligations and constitutional guarantees.

For the Petitioner: Adv. Abhilash MR, Adv. Sayooj Mohandas, Adv. Ann Melvin, Adv. Manjari Singh; instructed by M/s MR Law Associates, AOR
Case Title: Shinu K R v. State of Kerala & Ors., Diary No. 63432-2025