Supreme Court - Daily Orders
Ernakulam Regional Co Operative Milk ... vs Dejo Jacob on 27 November, 2024
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(ARISING OUT OF SLP (CIVIL) NO. 4848 OF 2023)
ERNAKULAM REGIONAL CO-OPERATIVE APPELLANT(S)
MILK PRODUCERS’ UNION LTD.
VERSUS
DEJO JACOB & ORS. RESPONDENT(S)
O R D E R
1. Leave granted.
2. Heard Mr. Chander Uday Singh, learned senior counsel appearing for the appellant. Also heard Mr. Romy Chacko, learned senior counsel appearing for the respondent No. 1.
3. The challenge here is to the judgment and order dated 17.08.2022 in the Writ Appeal No. 1130 of 2021 whereunder the judgment rendered by the learned Single Judge rejecting the Writ Petition (C) No. 20861 of 2020 was substituted by the judgment of the Division Bench.
4. The appellant - Ernakulam Regional Co-operative Milk Producers’ Union Ltd. issued the recruitment notification dated 25.10.2019 (Annexure P/2), inviting applications for, inter alia, the post of Technician (General) Grade-II and Plant Attender Grade- III. The respondent No.1 applied for both posts, participated in the written test and secured 38.5% marks for the post of Plant Signature Not Verified Attender Grade-III and 14.25% marks for the post of Technician Digitally signed by NITIN TALREJA Date: 2024.11.30 16:52:12 IST (General) Grade-II, which prescribe 50% cut-off marks. Reason:
5. As the respondent No.1 was not selected, he filed the Writ 1 Petition (C) No. 20861 of 2020 and in paragraph 7 of the said Writ Petition, the respondent No.1 confined his claim for the post of Technician (General) Grade-II. In support of his claim for appointment, the writ petitioner relied on Section 34 of the Rights of Persons with Disabilities Act, 2016 (for short, the “2016 Act”) which require every appropriate Government to appoint eligible persons with disabilities, in every Government establishment to not less than 4% of the total number of vacancies, in the concerned cadre.
6. The learned Single Judge adverted to the fact that the Co-
operative Societies would not fall within the definition of ‘Government establishment’ under Section 2(k) of the 2016 Act, and dismissed the Writ Petition on 03.08.2021. The Court also noted that Section 80(5) of the Kerala Co-operative Societies Act, 1969 (for short, the “1969 Act”) is applicable. It was noticed therefrom that the reservation for only physically handicapped persons is available in the concerned co-operative society and accordingly it was concluded that the writ petitioner not being a physically handicapped person but a mentally retarded person, does not merit any direction for his appointment.
7. On challenge to the above verdict by the writ petitioner, the Division Bench after noticing the identification of the posts done by the Government order and the circular issued by the Registrar of Co-operative Societies, the non-identification of the post of Technician (General) Grade-II as a post suitable for persons with disabilities opined that this cannot be seen as illegal or irregular. But the Court felt that the claim of the respondent 2 NO.1 has to be considered in tune with the purpose and object of the 2016 Act.
8. With the above understanding, the Division Bench noticed that vacancy of Plant Attender Grade-III is available which the Society is proposing to renotify. Noticing the fortuitous circumstances, and considering the respondent No.1 to be a person who can be considered to suffer intellectual disability, the Court directed the Co-operative Society to consider his suitability just like any other disabled candidate and to consider him for the vacant post of Plant Attender Grade-III.
9. Before proceeding further, the disability certificate (dated 11.04.2013) produced by the respondent No.1 needs to be looked at. In this certificate, it is indicated that the respondent No.1 suffers from “mild mental retardation”. His temporary disability was assessed at 40%.
10. As can be seen, Section 2(s) of the 2016 Act defines a “person with disability” as a person with long term disability or sensory impairment which creates barriers and hinders the person, full and effective participation with the society equally with others. Section 34 provides for 4% reservation for persons with disabilities in every Government establishment. Section 2(k) defines Government establishment.
11. Insofar as the appellant - Ernakulam Regional Co-operative Milk Producers Union Ltd. is concerned, it cannot be considered as a Government establishment but would perhaps come within the definition of a private establishment, under the 2016 Act. The 3 reservation provided under Section 34 of the 2016 Act may not be covering private establishments.
12. That apart, Section 2(s) identifies the person with disability, as one suffering long-term disability. But the certificate (dated 11.04.2013) produced by the respondent No.1 to make the claim for appointment, being a temporary one, would not satisfy the requirement of long-term disability prescription under the definition Section 2(s) of the 2016 Act. Be that as it may, the respondent No.1 does have the liberty to seek another certificate depending upon his situation and if a long-term disability certificate in that event is provided, the same might fulfil the requirement of Section 2(s) of the 2016 Act.
13. Unfortunately, in the present case, the respondent’s application is supported by the certificate (dated 11.04.2013) and the same does not satisfy the long-term disability prescribed for a person with disability for availing the benefits under the 2016 Act.
14. That apart, Section 80(5) of the 1969 Act provides for 3% reservation of the total posts, but such reservation is intended only for the physically handicapped category, with disability of 40% or above. Mental disability is not covered in the said section. The Board of Directors for Co-operative Society had issued the circular dated 27.04.2013 in furtherance of the provisions of Section 80(5) of the 1969 Act, which also clearly indicated that reservation is provided only to the physically handicapped category and no reservation is contemplated for the 4 mentally impaired person like the respondent No.1.
15. The respondent No.1 had given up the claim to the post of Plant Attender Grade-III in his pleadings and also in his oral submissions. This may not, however, come in the way of the writ petitioner, being considered for the post of Technician (General) Grade-II. But the respondent No.1 claims as a mentally handicapped person. However, the 1969 Act and the Circular applicable for the Co-operative Societies envisage reservation only for the physically handicapped category. That apart, the minimum cut-off marks prescribe 40% for the disabled category and the respondent No.1 herein admittedly secured 38.5% marks, which is below the cut-off marks. Additionally, the benefit of reservation to this category of individuals cannot be granted in an organization which is not a government establishment referring to Section 34 of the 2016 Act.
16. Following the above discussion the direction given in the impugned judgment to consider the respondent No.1 for appointment to the post of Plant Attender Grade-III is held to be unsustainable. The impugned judgment (dated 17.08.2022) is accordingly set aside and quashed. The appeal stands allowed without any order on cost.
..........................J. (HRISHIKESH ROY) ..........................J. (S.V.N. BHATTI) NEW DELHI;
NOVEMBER 27, 2024.
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ITEM NO.37 COURT NO.4 SECTION XI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 4848/2023
[Arising out of impugned judgment and order dated 17-08-2022 in WA No. 1130/2021 passed by the High Court of Kerala at Ernakulam] ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS’ UNION LTD. Petitioner(s) VERSUS DEJO JACOB & ORS. Respondent(s) Date : 27-11-2024 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE S.V.N. BHATTI For Petitioner(s) Mr. Chander Uday Singh, Sr. Adv.
Mr. E. M. S. Anam, AOR For Respondent(s) Mr. Romy Chacko, Sr. Adv.
Mr. Sachin Singh Dalal, Adv.
Mr. Ashwin Romy, Adv.
Mr. Akshat Singh, Adv.
Mr. Joe Sabastian, Adv.
Mr Rahul Jain, AOR Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal stands allowed in terms of the signed order. Pending application(s), if any, shall stand closed.
(NITIN TALREJA) (KAMLESH RAWAT)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed order is placed on the file)
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