Managing Director vs State Of Kerala on 10 December, 2015

[Cites 10, Cited by 0]

Kerala High Court

Managing Director vs State Of Kerala on 10 December, 2015

1.The issue raised in this writ appeal is with regard to the claim for appointment of the 3rd respondent as Technician (Fill Pack) Grade II, under the appellant. The appellant is the Managing Director, Ernakulam Regional Co-operative Milk Producers Union. It had challenged Exhibit P1 proceedings issued by the Government in its Department of Agriculture upholding the claim of the 3rd respondent for appointment under the 3% quota reserved for physically handicapped persons under Section 80(5) of the Kerala Co-operative Societies Act, 1969, for short 'KCS Act' and Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995, for short 'PWD Act'. By the impugned order, the appellant was also directed to take immediate action to identify the categories for which 3% vacancies are to be earmarked for physically handicapped W.A. No.671/16 2 persons, notify the same and arrange to fill up the vacancies within two weeks.

2.The contention of the appellant in the writ petition was that Exhibit P2 was a notification for appointment to various posts under the units of the appellant-Union. Two posts of Technician (Fill Pack) Grade II were notified in the general quota. The 3rd respondent had submitted Exhibit P3 application in pursuance of the notification under the general quota and had been unsuccessful in the selection. Thereafter, the 3rd respondent had raised complaint before the Government on the basis of which Exhibit P1 was issued. It is submitted that the contentions raised by the appellant Union with regard to the applicability and operation of the reservation in favour of persons with disabilities had not been considered by the Government while issuing Exhibit P1 order.

3.A counter affidavit had been filed by the 3rd respondent contending that the Government had, by Exhibit R3(a) letter dated 19.01.2009, directed the appellant to take steps to W.A. No.671/16 3 effectuate the reservation for appointment of persons with disabilities to the extent of 3% of vacancies in the light of the provisions of the PWD Act. It is contended that Exhibit P2 notification issued thereafter, without following the said mandate, was illegal and the direction issued for making appointments was therefore perfectly in order. A certificate issued by the Medical Board showing Orthopaedic disability of 45% and a certificate from the Manager of the Thrissur Dairy of the appellant evidencing the fact of his employment from 04.04.2005 to 14.09.2006 as Packing Machine Operator with responsibilities of all electrical and electronic maintenance in the factory and another certificate showing engagement as Technician (Packing Machine) on contract basis from 28.02.2008 to 08.04.2009 and from 13.04.2009 to 17.10.2009 had also been produced by the 3rd respondent. It was also contended that Exhibit P3 application preferred by the 3rd respondent clearly shows that he had shown his physical disability at column 15 thereof and he should therefore have been given the benefit available to him under the PWD Act as well as Section 80(5) of the KCS Act. W.A. No.671/16 4

4.Learned Government Pleader had also filed counter affidavit relying on Section 80(5) of the KCS Act as well as Section 33 of the PWD Act and had produced copies of Government Orders making the 3% reservation to persons with disabilities applicable to all co-operative institutions as well. The contention of the 3rd respondent that he was working as a Technician in Milma and he was qualified for appointment to the said post is also adverted to by the Government.

5.The learned single Judge considered the contentions raised and found that no reservation had been made in Exhibit P2 notification for appointment of persons with disabilities. Relying on the provisions of the PWD Act, it was held that 3% of the posts were to be reserved for the physically disabled. Taking into account the certificates produced by the 3rd respondent evidencing his engagement as Technician and Packing Machine Operator, the learned single Judge declined to interfere with the exercise of jurisdiction by the Government in Exhibit P1 order. The writ petition was thus W.A. No.671/16 5 dismissed.

6.The appellant challenges the findings of the learned single Judge on the ground that since no reservation had been provided in Exhibit P2 notification, the direction issued by the Government for appointment of the 3rd respondent, who submitted application under the general quota, was completely unjustified. It is further contended that since vacancies were not earmarked for handicapped persons, other similarly situated persons did not have an opportunity to apply and this aspect was not considered by the learned single Judge.

7.Heard Sri.K.Anand, learned senior counsel for the appellant, Sri.Sojan James, learned Senior Government Pleader appearing for respondents 1 and 2 and Sri.K.Sasikumar, learned counsel for the 3rd respondent.

8.It is contended by the learned Senior Counsel appearing for the appellant that the appellant is not an establishment W.A. No.671/16 6 coming under Section 2(k) of the PWD Act. Section 80(5) of the KCS Act envisages only a prospective reservation in favour of physically handicapped persons. No such exercise of reservation of posts has been carried out by the Union before issuance of Exhibit P2 notification. The 3rd respondent would have become entitled for appointment on the basis of status of a physically disabled person only after the identification of the posts and after such posts reserved for persons with disabilities were to be notified, it is submitted. It is argued that the ERCMPU has been held by this Court to be not a State under Article 12 and the power of the Government to issue directions to the Milma with regard to its pricing policy had also been considered by this Court and it was held that in the absence of State financing, the Government could not control the commercial activities of the apex body or the regional unions.

9.The learned Senior Government Pleader as well as the learned counsel appearing for the 3rd respondent would, on the other hand, submit that no Co-operative Society, which W.A. No.671/16 7 is registered under the KCS Act and is enjoined to function in accordance with the provisions of the Act and the Rules, can claim immunity from the statutory provisions. Section 80(5) of the KCS Act which was introduced on 28.4.2010 having specifically provided for reservation against 3% of vacancies, it would not be open to the employer to contend that it would make the reservation applicable at its discretion and that the provisions of the Act would not be automatically binding. In support of his contention, the learned counsel for the 3rd respondent would place reliance on the decision of a learned single Judge in Jayaprakash P.K. v. Joint Registrar [ILR 2013 (4) Kerala 1047]. An earlier decision of one among us [TBR(J)] in Anandavally, M. v. President, Aleppey District Co-operative Bank [ILR 2008(3) Ker 702], which was affirmed in a judgment of the Division Bench dated 27.01.2009 in W.A.Nos.2105 & 2106 of 2008 has also been referred to by the learned single Judge in Jayaprakash's case (supra). The dictum laid down by the Hon'ble Supreme Court with regard to the reservation for the disabled in terms of the PWD Act and the W.A. No.671/16 8 method in which it has to be worked out had also been referred to by the learned single Judge.

10.We find from the materials placed on record that it is beyond dispute that the 3rd respondent is a person with disabilities as defined in the PWD Act. Exhibit P2 notification which was dated 29.01.2011 did not provide for reservation for persons with disabilities. However, the application form contained a question with regard to medical disability which was answered by the 3rd respondent in the affirmative. It is also on record that the Government had as early as in 1998 directed the reservation of 3% posts in public services for persons with disabilities. The Government Orders in this regard have been made applicable to the appellant also as per order dated 19.01.2009. By amendment to the KCS Act which was made effective w.e.f. 28.04.2010, 3% of total posts of employees of every society was to be reserved for physically handicapped persons. The provision for reservation reads as follows:- W.A. No.671/16 9

"Section 80:-Officers etc. of Co-operative Societies:- (1) The Government shall classify the societies in the State according to their type and financial position.

(2)The Government shall, in consultation with the Registrar, fix or alter the number and designation of the officers and servants of the different classes of societies specified in sub-section (1).

xxxx xxxx xxx xxxx xxxx xxx (5) Notwithstanding anything contained in sub-section (1) or (2), three percent of the total posts of employees of every society shall be reserved for physically handicapped persons having disability of forty percent or above, as certified by the medical board and the procedure of appointment shall be such as may be prescribed:

Provided that in societies where there are more than ten and less than thirty three employees including cadre and sanctioned posts, there shall be reserved a minimum of one employee belonging to physically handicapped persons."

11.With regard to the operation of reservation to persons belonging to Scheduled Castes and Scheduled Tribes as provided under Section 80(4) of the KCS Act, the language of which sub-section is identical to that of sub-section 5, this Court had in Anandavally's case (supra) held that the rule of reservation prescribed by the legislative mandate can be W.A. No.671/16 10 achieved only by making appointments against vacancies arising after the introduction of the provision, so that 10% of the entire posts for which direct recruitment is the method of appointment is manned by members of Scheduled Castes and Scheduled Tribes, recruited with the support of that rule of reservation, on or after the date of coming into force of the Ordinance. This judgment of the learned single Judge was affirmed by a Division Bench of this Court in W.A.Nos.2105 and 2106 of 2008 by its judgment dated 27.01.2009. This Court has, in Jayaprakash's case (supra), held that co-operative societies are duty bound to appoint qualified disabled candidates against identified posts even in the absence of reservation for the physically handicapped having found a place in the notification. This finding of the learned single Judge has also been affirmed by a Division Bench of this Court by its judgment dated 9.06.2014 in W.A.No.103 of 2014. Relying on the decision of the Apex Court in Union of India v. National Federation of the Blind [ILR (2013(4) Kerala 279], it was held that the benefit of reservation should be extended to the physically W.A. No.671/16 11 handicapped at the earliest point of time. It was further held that the society could not be permitted to choose the posts to which appointment of the disabled was to be made when there was a physically handicapped qualified hand available in the selection and the post to which the disabled person was qualified could have been filled by his appointment.

12.This Bench also had occasion to consider the question of appointment of physically handicapped candidates in the 3% quota set apart for them in a decision reported in KPSC v.

E.Dineshan [2016(2) KHC 910(DB)]. It was contended by the KPSC in that case that the identification of posts having been made by the Government only from 01.01.2008 the direction given by the learned single Judge to make appointments against vacancies which had arisen earlier also applying the 3% reservation was erroneous. It was held that going by the provision of the PWD Act and the authoritative pronouncement of law made by the Hon'ble Supreme Court, reservation which is not dependant on the identification of the posts should be deemed to have come W.A. No.671/16 12 into operation with effect from the date of commencement of the Act. The vacancies earmarked for physically handicapped under the PWD Act were to be reckoned not from the date of identification of the posts, but with effect from the date of commencement of the Act or at least the entrustment of the selection to the said post to the PSC. The direction given to appoint persons with disabilities against the quota earmarked for the disabled was thus upheld. The further contention that 3% of vacancies which arose till 01.01.2008 could be filled up only after conducting a special recruitment was also not accepted by us.

13.We have gone through the findings in Exhibit P1 order as also the judgment of the learned single Judge. Exhibit P1 directs the appointment of the 3rd respondent against an available vacancy of Technician(Fill Pack) - Grade II. It also directs the identification of the posts for appointment of disabled persons in the appellant Union. Since we have found that Section 80(5) which was introduced in the statute book as on 28.04.2010 had not been complied with while W.A. No.671/16 13 issuing Exhibit P2 notification dated 29.01.2011, we are of the opinion that the direction contained in Exhibit P1 with regard to appointment of the petitioner in one of the vacancies cannot be found fault with. The power is vested with the Government to make laws regulating the functioning of co-operative societies in the State. In any view of the matter, neither Section 80(5) of the KCS Act nor any of the Government Orders or circulars making Section 33 of the PWD Act applicable to co-operative societies or the orders directing identification of the posts for operating the 3% reservation for persons with disabilities are under challenge before us at the instance of the appellant. We are of the considered opinion that such salutary provisions have necessarily to be given effect to in order to ensure social justice in the backdrop of the obligation of the State to effectuate the full participation of disabled persons in all spheres of social life. In the above view of the matter, we find that the upholding of Exhibit P1 order by the learned single Judge suffers from no legal infirmity or material defect. The learned single Judge had considered the W.A. No.671/16 14 contentions raised on behalf of the appellant in full. In the above circumstances, we are not persuaded to invoke the intra-court appellate jurisdiction. Appeal fails and it is accordingly dismissed. There will be no order as to costs.

sd/-

Thottathil B. Radhakrishnan, Acting Chief Justice sd/-

Anu Sivaraman, Judge sj /True Copy/ P.A. to Judge

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