Kerala High Court
State Of Kerala vs Jacob M.V on 16 February, 2021
Author: Alexander Thomas
Bench: Alexander Thomas, T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
OP(KAT).No.449 OF 2020
AGAINST THE ORDER IN OA (EKM)NO.144/2017 DATED 29.08.2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 4 IN O.A.:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF COMMERCIAL
TAXES, SECRETARIAT, THIRUVANANTHAPURAM-695 001
3 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF SOCIAL
JUSTICE, SECRETARIAT, THIRUVANANTHAPURAM-695 001
4 STATE COMMISSIONER FOR PERSONS AND DISABILITIES,
THIRUVANANTHAPURAM-695 012
BY SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER
RESPONDENTS/APPLICANT & RESPONDENTS 5 & 6 IN O.A.:
1 JACOB M.V., S/O. VARGHESE, MECHERY HOUSE, PALAPPILLY,
KOOVAKKATTUKUNNU P.O, THRISSUR-680 311
2 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY SECRETARY, PATTOM,
THIRUVANANTHAPURAM-695 004
3 THE SECRETARY,
KERALA PUBLIC SERVICE COMMISSION, PATTOM,
THIRUVANANTHAPURAM- 695 004.
R1 BY ADV. SRI.C.A.CHACKO
R2-3 BY ADV. SRI.P.C.SASIDHARAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD
ON 03-02-2021, THE COURT ON 16-02-2021 DELIVERED THE FOLLOWING:
O. P. (KAT) No. 449/2020
2
ALEXANDER THOMAS & T.R.RAVI, JJ.
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O. P. (KAT) No. 449 of 2020
[Arising out of the impugned final order dated 29.8.2019 in
O.A. (Ekm) No. 144 of 2017 on the file of the KAT, Ernakulam Bench]
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Dated this the 16th day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the afore captioned Original Petition filed under Articles 226 & 227 of the Constitution of India are as follows: {See page 11 of the paper book of this OP(KAT)} "..........set aside Exhibit P8 order in OA(EKM) No.144/17 on the files of the Kerala Administrative Tribunal, Additional Bench, Ernakulam by allowing this original petition."
2. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P./R-1 to R-4 in the O.A. (The State of Kerala and 3 others), Sri.C.A.Chacko, learned counsel appearing for R-1 in the O.P./sole applicant in the O.A. before the Tribunal and Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission appearing for R-2 & R-3 herein/R-5 & R-6 in the O.A. before the Tribunal.
O. P. (KAT) No. 449/20203
3. The 1st respondent herein had filed Ext.P-1 O.A. (Ekm) No. 144/2017 before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers: {See page 27 of the paper book of this OP(KAT)} "
a) set aside Annexure A13 GO(Rt)No.939/2016/TAXES dated 3/12/2016 after calling for the records leading to its issuance;
b) declare that non identification of back log vacancies in the post of Commercial Tax Officer in Commercial Taxes Department from the year 2004 onwards is illegal and against the spirit and object of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995;
c) direct the respondents to effect appointment to the post of Commercial Tax Officer in Commercial Taxes Department from Annexure A2 rank list in the back log vacancies with effect from 2004 in the light of judgment of the Hon'ble Supreme Court reported in (2010) 7 SCC 626; and
d) grant such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of the case including costs of this Original Application."
4. The original applicant is a differently abled person inasmuch as, he suffers from locomotor disability to the tune of 40% as certified in Anx.A-1 disability certificate issued by the competent Medical Board concerned. The applicant is fully qualified and eligible to be considered for selection and appointment to the post of Sales Tax Officer (STO) [later re- designated as Commercial Tax Officer (CTO)] in the Sales Tax Department/Commercial Taxes Department under the Government of Kerala. Pursuant to the selection notification issued by the respondent O. P. (KAT) No. 449/2020 4 Kerala Public Service Commission (PSC) for Category No.2/2006, the applicant had submitted application for consideration, selection and appointment to the post of STO in the Commercial Taxes Department, and after the due process of selection the applicant has been included as rank No.149 in Anx.A-2 rank list finalized by the PSC with effect from 31.7.2007. It is common ground that the said rank list has expired on 30.1.2012. It is also common ground that the competent authority of the State Government had not taken any steps to take appropriate decision as to whether the post of STO/CTO is suitable for appointment of physically disabled candidates in the 3% quota set apart in terms of the provisions contained in Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (Central Act 1 of 1996 which came into force on 7.2.1996) for the 3% quota set apart for physically disabled candidates as mandated in Section 33 of said Central Act at any point of time prior to the finalization of Anx.A-2 rank list which came into force on 31.7.2007. Being aggrieved thereby, the applicant had approached this Court by filing a Writ Petition (Civil) as WP(C) No. 24046/2009 which was later transferred to the Kerala Administrative Tribunal (KAT), Thiruvananthapuram Bench, after the O. P. (KAT) No. 449/2020 5 establishment of said Tribunal and thereupon the said case was renumbered as T.A. No. 5570/2012 on the file the KAT, Thiruvananthapuram Bench.
5. After hearing both sides the Tribunal has rendered Anx.A-8 final order dated 22.5.2013 in the said T.A. No. 5570/2012 (arising out of WP(C) No. 24046/2009) directing that the competent authority of the State Government will immediately take steps to consider the pleas made by the applicant in the representation referred to Ext.P-7 therein in the matter of taking an appropriate decision as to whether the post of STO/CTO is to be treated as suitable in terms of Section 32 of abovesaid Act for appointment of the physically disabled candidates in the 3% quota set apart in Section 33 thereof, and the decision was directed to be taken within 3 months, and also on the plea of the applicant for taking action for making appointments in the backlog vacancies in the 3% quota.
6. The plea made by the applicant as per Ext.P-7 therein was rejected by the competent authority of the State Government in the Taxes Department as per Anx.A-9 G.O.(Rt.) No.12/2014/Taxes dated 4.1.2014. The said rejection order as per Anx.A-9 herein was challenged by the applicant by filing original application as O.A. No. 2190/2014 before the O. P. (KAT) No. 449/2020 6 KAT, Thiruvananthapuram Bench. The Tribunal after hearing both sides has rendered Anx.A-11 final order dated 18.12.2015 in O.A. No. 2190/2014. In para 5 of Anx.A-11 order, the Tribunal has found that as to the case of the Government, the post of CTO was identified as suitable in terms of Section 32 of the Central Act for appointment of physically disabled candidates in the 3% quota set apart under Section 33 of said Act, as per the G.O.(P) No.43/2009/SWD dated 13.10.2009 issued by the competent authority of the State Government in the Social Welfare Department, which has been produced as Anx.A-5 in Anx.A-11 O.A. No. 2190/2014. Further, the Tribunal has also noted in para 5 of Anx.A-11 order that according to the Government, yet another Government Order was issued by them on 24.1.2011 wherein it was directed to conduct special recruitment for 3% backlog vacancies and various posts have been identified, etc. However, the Tribunal has also found in para 5 of Anx.A-11 order that, inspite of all this the post of CTO/STO in the Sales Tax Department/Commercial Taxes Department under the State Government has not been included for appointment in the backlog vacancies of different departments which arose during the period from 1.1.2004 to 31.12.2007 as per the admitted case of Government authorities. O. P. (KAT) No. 449/2020 7
7. In para 10 of Anx.A-11 order the Tribunal has also noted the submission of the Government that they have issued G.O.(P) No.61/12/SWD dated 17.10.2012 ordering that the post of CTO is included in the list of categories of posts under Class I and II which are identified as suitable for appointment of physically disabled candidates. Further, in para 6 of the statement filed by the Government in O.A. No. 2190/2014, it is stated by them that in compliance with Government Orders as per G.O. (P) No.43/2009/SWD dated 13.10.2009 and G.O.(P) No.40/2011/SWD dated 26.8.2011, the Commissioner of Commercial Taxes has requested the Secretary, Kerala PSC to advise candidates as against 3 vacancies of CTO from the existing rank list, meaning thereby Anx.A-2 rank list dated 31.7.2007 which was current up to 30.1.2012, in the category of physically challenged persons as per the norms of the existing Government Orders, and further that no backlog vacancies of CTO were identified by the Social Welfare Department for special recruitment vide G.O.(P) No.7/2011/SWD dated 24.7.2011, etc.
8. Taking note of said submissions of the Government, the Tribunal has passed Anx.A-11 final order dated 18.12.2015 in O.A. No. 2190/2014 finding that the Public Service Commission cannot be O. P. (KAT) No. 449/2020 8 faulted for not applying reservation in the physically disabled quota inasmuch as, the post was admittedly found suitable by the State Government in the PH quota only as per the Government Order issued on 13.10.2009 (Anx.A-5 in Anx.A-11) and later by G.O.(P) No.61/12/SWD dated 17.10.2012, and even the backlog vacancies have admittedly not been reported by the competent authority of State Government/department to the Kerala PSC, etc. Hence, the Tribunal has found in the last paragraph of Anx.A-11 order that since the Public Service Commission cannot be found fault with for not applying reservation in the 3% quota for physically disabled candidates in respect of Anx.A-2 rank list, and as the fault is on account of the long delay on the part of the State Government authority in identifying the post of CTO/STO suitable for PH quota appointments by issuing orders in the years 2009 and 2011, which is after the coming into force of Anx.A-2 rank list, this is a fit case where the Government should consider the case of the applicant for appointment by resort to the discretionary powers conferred to them statutorily under Rule 39 of Part II KS & SSR.
9. It will be pertinent to refer to the directions issued by the Tribunal in para 10 of Anx.A-11 final order dated 18.12.2015 in O.A. O. P. (KAT) No. 449/2020 9 No.2190/2014, which reads as follows: {See page 84 of the paper book of this OP(KAT)} "In the light of the above factual position, the PSC cannot be faulted for not applying the Government Order, Annexure-A5 in respect of the present selection. As further directions have to be issued by the Government, the applicant is permitted to move the Government by invoking Rule 39 of Part II KS & SSR, by filing a proper representation. If such a representation is filed within six weeks from today, the Government will pass orders within a period of three months thereafter. The applicant will be heard also."
10. Pursuant to said directions, the Government has purportedly considered the request of the applicant and has issued Anx.A-13 G.O.(Rt.) No. 939/2016/Taxes dated 3.12.2016 holding that the rank list has also expired by then on 30.1.2012 and that the Government has taken necessary steps for even requesting the PSC to advice 3 physically disabled candidates as against 3 vacancies (as referred to in para 6 of the statement filed by them in Anx.A-11 O.A. No.2190/2014) and further that it has been found that there are no backlog vacancies in respect of handicapped persons in the category of CTO for the period from 1.1.2004 to 31.12.2007, and if any backlog vacancies arise after 31.12.2007 it is to be filled up by special recruitment especially from PH candidates through the PSC etc. Further it is stated in para 6 of Anx.A-13 order that Anx.A-2 rank list came into force on 31.7.2007 and the government O. P. (KAT) No. 449/2020 10 order identifying the post of CTO/STO as suitable in the PH quota was issued only in the year 2009 and the same has no retrospective effect etc and that the case of the applicant for appointment by resort to the discretionary powers conferred under Rule 39 of Part II KS & SSR deserves only to be rejected etc.
11. Being aggrieved by the rejection order at Anx.A-13, the applicant was again constrained to approach the Tribunal by filing O.A. (Ekm) No. 144/2017. The Tribunal after hearing both sides has passed the impugned Ext.P-8 final order dated 29.8.2019 in said O.A. by holding categorically that the issuance of Anx.A-13 order dated 3.12.2016 cannot be said to be in proper and lawful compliance of the directions issued by the Tribunal in the previous round of litigation as per Anx.A-11 dated 18.12.2015 in O.A. No. 2190/2014 and hence the rejection order as per Anx.A-13 herein was quashed and the matter was remitted to be reconsidered and orders were passed afresh in strict compliance of the directions issued by the Tribunal as per Anx.A-11 and in the light of the observations and findings made by the Tribunal in the impugned Ext.P-8 order, etc.
12. The Tribunal has found in Ext.P-8 that one of the main reasons O. P. (KAT) No. 449/2020 11 given by the Government in the rejection order as per Anx.A-3 is that, the identification of the post as suitable for appointment in PH quota as per G.O.(P) No.43/2009/SWD dated 13.10.2009 (produced as Anx.A-5 in Anx.A-11 O.A.) is not retrospective and that it can have only prospective effect and that backlog vacancies which arises after 2007 (date of coming into force of Anx.A-2 rank list) can be utilized only by making appointment by special recruitment through PSC and not by appointing any candidate included in Anx.A-2 rank list, etc. The Tribunal found that the said finding of the Government about lack of retrospectivity to the identification of the post as suitable for PH appointment in terms of the G.O. issued in the year 2009, is absolutely illegal and improper. The Tribunal has placed reliance on the decision of the Apex Court in the celebrated case in Govt. of India & Another v. Ravi Prakash Gupta & another [(2010) 7 SCC 626] wherein the Apex Court has dealt with similar contention that the post in dispute was identified for the first time as suitable for appointment of physically disabled candidates only in the year 2005 and that reservation can be given effect to only thereafter from the year 2006 and therefore there is no backlog vacancies. The Apex Court, while interpreting the scope and ambit of Section 32 to Section 36 of the O. P. (KAT) No. 449/2020 12 abovesaid Central Act 1 of 1996, held categorically and unequivocally that when a post was identified as eligible for appointment of disabled candidates in terms of Section 32 of the Act for appointment in the 3% quota set apart as per Section 33, then the identification of the post as suitable for PH quota appointment will revert back from the date of coming into force of Central Act 1 of 1996, viz, 7.2.1996. The argument therein raised by the Union of India in that case that the identification of post was undertaken after the year 2005 and about lack of retrospectivity was completed repelled by the Apex Court. It may be pertinent to refer to para 25 of the decision of the Apex Court in Ravi Prakash Gupta's case supra [(2010) 7 SCC 626], which reads as follows:
"The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Grade 'A' and 'B' posts in the I.A.S. was undertaken after the year 2005 is not of much substance."
13. Hence the Tribunal held that the issuance of the impugned rejection order as per Anx.A-13 herein cannot be said to be in lawful and proper compliance of the directions already rendered by the Tribunal as O. P. (KAT) No. 449/2020 13 per Anx.A-11 order, and that main reasonings in Anx.A-13 order about lack of retrospectivity to the Government Order issued in the year 2009 and thereafter for identification of the post of STO/CTO as suitable in terms of Section 32 of the Act for appointment in the 3% PH quota in terms of Section 33 thereof, is absolutely illegal and ultra vires. Further, it is by now well established that a bounden statutory obligation is cast upon the appropriate authorities concerned to take appropriate decision as to whether the post in question is suitable in terms of Section 32 of the Act for appointment in the PH quota in terms of Section 33 of the Act, and the said statutory obligation would arise immediately after coming into force of Central Act 1 of 1996 from 7.2.1996. Merely because there has been bureaucratic apathy and delay on the part of the governmental authorities in taking a decision as to whether the post is suitable or not, is no ground to say that once the post is held to be suitable subsequently, then there is no question of retrospectivity and that the vacancies only after the identification of post alone is to be taken into account for PH quota appointments, etc. It is by now well established, more so particularly in view of the categorical declaration of law made by the Apex Court in Ravi Prakash's case supra that, once the identification of post is suitable in O. P. (KAT) No. 449/2020 14 terms of Section 32 is rendered by the appropriate government, then it will revert back to the date of coming into force of the Act, viz 7.2.1996 and that backlog vacancies should also be counted and reckoned on that basis and not on the legally specious premise that there is no retrospectivity to the subsequent decision taken for identification of post as suitable in the PH quota appointment.
14. In that view of the matter the Tribunal has categorically held that the impugned decision at Anx.A-3 cannot stand even for a moment in the eye of law and would deserve interdiction, and accordingly the Tribunal has quashed the impugned order at Anx.A-13 and has remitted the matter to the competent authority of the State Government to reconsider the case of the applicant in terms of Anx.A-11 order and in the light of findings and orders made by the Tribunal in Ext.P-8 and also on the issue in respect of the matter regarding the claim of the applicant for appointment as CTO/STO by resort to discretionary powers statutorily conferred on the Government under Rule 39 of Part II KS & SSR. It is this order at Ext.P-8 that is under challenge in this O.A.
15. We have heard the parties at length on occasions more than one. We have also heard in detail the learned Standing Counsel for the O. P. (KAT) No. 449/2020 15 Kerala Public Service Commission as well. From the submission of parties, the following factual aspects are beyond any dispute:
1. The rank list in quetion as per Anx.A-2 was finalized with effect from 31.7.2007 and it was ultimately cancelled with effect from 30.1.2012.
2. At no point of time, prior to the finalization of Anx.A-2 rank list dated 31.7.2007, the competent authority of the State Government has not taken any decision in the matter of identification of the post of CTO/STO as suitable in terms of Section 32 of the Act for PH quota appointment set apart in terms of Section 33 of the Act.
3. It is also common ground that, for the first time the competent authority of the State Government has taken an appropriate decision so as to identify the post of STO/CTO as suitable in terms of Section 32 of Central Act for appoitment in the 3% PH quota set apart in terms of Section 33 thereof, only as per G.O. (P) No. 43/2009/SWD dated 13.10.2009 (produced as Anx.A-5 in Anx.A-11 O.A. No.2190/2014).
4. A reading of para 10 of Anx.A-11 order would also indicate that the Government has also a case that, later they have again issued G.O.(P) No. 61/2012/SWD dated 17.10.2012 ordering that the post of CTO is included in the list of catogories of post under Class I and Class II, which are identified as suitable for O. P. (KAT) No. 449/2020 16 appointment of physically disabled candidates.
16. Hence it is clear like the daylight that the deciison was taken by the competent authority of the State Government identifying the post of CTO/STO as suitable in terms of Section 32 of the Act for appointment in the 3% PH quota set apart as per Section 33 thereof only on 13.10.2009. In other words, there is not dispute that the appropriate decision to identify the post as suitable, was never taken by the Government at any point of time prior to the finalization of Anx.A-2 rank list dated 31.7.2007. It is by now well settled that the appropriate Government is under the bounden statutory obligation by virtue of the mandate contained in Section 32 to Section 36 of the Central Act 1 of 1996, to enforce the provisions of said Act immediately after coming into force of said Act on 7.2.1996, and that so the competent authority of the State Government was under the statutory and mandatory obligation to have taken an appropriate decision as to whether the post in question (CTO/STO) is suitable or not in terms of Section 32 of the Act for appointment in the 3% PH quota as per Section 33 thereof, immediately after coming into force of the Central Act on 7.2.1996, at any rate such a decision should have been taken by the competent authority of O. P. (KAT) No. 449/2020 17 the State Government atleast before the finalization of Anx.A-2 rank list dated 31.7.2007. On the other hand, for the first time, the decision of the Government was rendered only on 13.10.2009, which is after the coming into force of Anx.A-2 rank list dated 31.7.2007. Hence, if the said decision had been taken by the competent authority of the State Government at any time prior to the finalization of Anx.A-2 rank list dated 31.7.2007, then the Public Service Commission would have easily taken steps for preparing a special list of PH candidates so as to effect horizontal reservation in the 3% PH quota from amongst the candidates included in Anx.A-2 rank list.
17. Since the said decision was not taken prior to the finalization of Anx.A-2 rank list dated 31.7.2007, the Public Service Commission had no other go, but to prepare a general recruitment rank list in the open competition and backward classes turns which is in the vertical reservation basis, and no provision could be made lawfully by the Public Service Commission for effectuating horizontal reservation in terms of Section 33 of Central Act 1 of 1996. This is only on account of the fault of the competent authorities of the State Government/Department concerned. Further, it is also evident that even backlog vacancies from 2007 have not been reckoned by the State Government in this case at any point of time O. P. (KAT) No. 449/2020 18 during the currency of Anx.A-2 rank list, which was current up to 30.1.2012. Be that as it may, it is the admitted case of the Government as can be seen from a reading of para 6 of the statement filed by the Government in Anx.A-11 O.A. No.2190/2014, which is extracted in para 10 on pages 4 & 5 of Anx.A-11 final order of the Tribunal in O.A. No.2190/2014, that the Commissioner of Commercial Taxes had sent a requisition to the Secretary, Kerala Public Service Commission, that 3 vacancies have been set apart for appointment of PH candidates ad that 3 PH candidates included in Anx.A-2 rank list dated 31.7.2007 be adivsed as against those 3 vacancies, etc.
18. After hearing both sides it appears that the competent authority of the Public Service Commission could not accede to the said request of the governmental authorities concerned, inasmuch as the list was prepared only for vertical reservation in open competition and backward class turns and advise of candidates was to be made solely on the basis of rules of reservation and rotation enshrined in Rules 14 to 17 of KS & SSR Part II, which is solely withtin in the domain of vertical reservation and not horizontal reservation. After hearing both sides it appears that altogether 7 candidates included in Anx.A-2 rank list are certified to be O. P. (KAT) No. 449/2020 19 physically disabled candidates, and applicant herein is the 4 th candidate among the 7 candidates. It is also common ground that, the two candidates who suffer from physical disability and were included in Anx.A-2 rank list were advised in the regular OC-BC turns as the case may be, on account of their inclusion in the general recruitment rank list as pr Anx.A-2. There does not appear to be any dispute that the said advise of two such candidates in Anx.A-2 rank list, who were otherwise suffering from physical disability, were only on account of their ranking and turn in the open competition and the backward class turn, as the case may be, and not on the basis of horizontal reservation meant to be effectuted through the 3% quota set apart as per Section 33 of the Central Act.
19. Sri.C.A.Chacko, learned counsel appearing for the original applicant would also point out that indisputably one among such candidate, who is suffering from physical disability and advised for appointment, had not joined for duty in spite of the order of appointment issued to him after the advise made by the PSC and therefore that resulted in a Non Joining Duty (NJD) vacancy.
20. The correctness or otherwise of said factual submission now made by the learned counsel appearing for the original applicant regarding O. P. (KAT) No. 449/2020 20 said NJD vacancy need not be decided by this Court. We will assume for a moment that 2 candidates in Anx.A-2 rank list, who are otherwise suffering from physical disability, were advised for appointment from amongst the candidates included in Anx.A-2 rank list during the currency of rank list and that too in accordance with the rules of merit and reservation and rotation enshrined in Rules 14 to 17 of KS & SSR Part II.
21. Therefore, going by the admitted factual matrix in this case, if the Government had fulfilled its solemn statutory responsibility cast on them by the Parliament by virtue of Sections 32 to 36 of the Act so as to render a decision to identify the post of CTO/STO at any time prior to the finalization of Anx.A-2 rank list, then the Public Service Commission would have been fully equipped to prepare a special list to be effectuated for horizontal reservation in terms of Section 33 of the Act. It is also common ground that, only the category of locomotor disabled candidates are identified as suitable for appointment to the post of CTO/STO, and the other two categories of visually impaired and hearing imparied candidates are not identified in the suitability criteria for appointment in the 3% quota. In other words, all the vacancies set apart in the PH quota, should have been utilized only by advising and appointing PH candidates who O. P. (KAT) No. 449/2020 21 suffer from locomotor physical disability. If the identification had been done prior to finalization of rank list dated 31.7.2007, then the Commission would have been well equipped to prepare a special list, in which case the applicant would have been rank No.4 among the 7 candidates included therein. In such a situation, the first two candidates in the said list would have secured advise and appointment even otherwise in accordance with their ranking a turn going by the OC-BC turns. Then only five candidates remain, out of which the applicant would have been second. Admittedly, even going by the case of the Government, the Commissioner of Commercial Taxes had sent a special requisition during the currency of rank list that 3 vacancies could be utlized for advise and appointment of candidates in the PH quota. Therefore, if the Government had taken the decision with due diligence so as to identify the post of CTO/STO as suitable for PH quota appointment then, as against the said 3 vacancies, the applicant could have been advised in the second among said 3 vacancies. The applicant has missed the bus only on account of the grave illegality and impropriety committed by the competent authority of the State Government and the department concerned in not taking the said decision at any time prior to the finalization of Anx.A-2 rank list. Hence, O. P. (KAT) No. 449/2020 22 the missing of the bus by the applicant who is a physically disabled candidate, is only on account of the grave illegality and impropriety committed by the competent authority of the State Government. Hence, prima facie the Tribunal is fully right in holding both in Anx.A-11 order as well as in Ext.P-5 order that this is a fit case where the Government should consider the case of the applicant for appointment by taking decision as to whether the statutory discretion conferred under Rule 39 of Part II KS & SSR could be resorted to in the instant case. That apart, Anx.A-11 final order rendered by the Tribunal in O.A. No. 2190/2014 dated 18.12.2015 has become final and conclusive and is an inter partes judgment between the original applicant and respondents therein (viz, 1 st respondent herein and the petitioners herein). The competent authority of the State Government has not challenged Anx.A-11 order in the manner known to law. The findings and observations made by the Tribunal in Anx.A-11 order has become final and conclusive, as the same has not been altered in the manner known to law, inasmuch as the same has not been challenged either in appellate proceedings or in review proceedings. Having suffered a verdict as per Anx.A-11, it is now not open to the Tribunal to say that the Tribunal should not have issued the impugned Ext.P-8 order. The main O. P. (KAT) No. 449/2020 23 finding of the Tribunal in Ext.P-8 is that the issuance of impugned Anx.A- 13 rejection order dated 3.12.2016 cannot be said to be in lawful and proper compliance of the binding orders and directions issued by the Tribunal, which has culminated in Anx.A-11 inter partes judgment rendered as earlier as on 18.12.2015. Having suffered the said verdict at Anx.A-11 and having not challenged the said Anx.A-11 order which has become binding inter partes, the direction issued bythe Tribunal to consider the case of the applicant for appointment in terms of Rule 39 of Part II KS & SSR has become final and conclusive. Now, at this stage the petitioners herein are estopped from challenging the said conclusive finding which is mainly emanated from Anx.A-11 order. The tone and tenor of the submissions of the ptitioners herein appears to be that the said direction to consider the case of the petitioners in terms of Rule 39 of Part II KS & SSR has been made for the first time by the Tribunal only as per Ext.P-8 order. Nothing would be more wrong than that.
22. The learned Government Pleader had submitted that the governmental authorities had filed this Original Petition mainly on account of the concern in respect of the directions and findings made by the Tribunal in Ext.P-8 about the liability to identify backlog vacancies O. P. (KAT) No. 449/2020 24 from 7.2.1996, and that is why the Government has taken the pain to file this Original Petition.
23. After hearing both sides it appears that, the findings and orders made by the Tribunal at Ext.P-8 is only on account of the faulty reasoning made by the Government in Anx.A-13 rejection order about the lack of retrospectivity to the government order issued in the year 2009 for identification of the post of CTO/STO as suitable in the 3% PH quota. The said finding and reasoning made by the Government in Anx.A-13 order, more particularly in para 6 thereof, was wrong for reasons more than one, predominantly on account of the dictum categorically laid down by the Apex Court in Ravi Prakash's case supra [(2010) 7 SCC 626]. However, after hearing both sides prima facie we are of the view that there may not be any necessity for the governmental authorities to identify backlog vacancies from 7.2.1996 onwards for the purpose of compliance of the directions issued by the Tribunal in Anx.A-11 and Ext.P-8 for the limited purpose of considering the case of the applicant herein. After all, the only limited matter arising out of Anx.A-11 and Ext.P-8 is only for considering the case of the applicant in terms of Rule 39 of Part II KS & SSR. For that purpose, the abovesaid aspects pointed out O. P. (KAT) No. 449/2020 25 hereinabove would unerringly lead to the irresistible conclusion that the appicant has missed the bus only on account of the grave illegality committed by the Government in the long delay in not identifying the post as suitable at any time prior to the finalization of Anx.A-2 rank list. If that be so, since two candidates in Anx.A-2 rank list, who are otherwise suffering from physical disability, have already secured advise in the regular OC-BC turns while effectuating vertical reservation, and 3 vacancies have been admittedly reported by the Commissioner for Commercial Taxes during the currency of Anx.A-2 rank list and as the same could not be utilized by the Public Service Commission for such PH quota appointment in terms of Section 33 of the Act as the Commission could not prepare a special PH list in Anx.A-2 rank list, and if identifiction of post has been done at any time prior to the finalization of Anx.A-2 rank list, then the applicant would have secured advise as against the second among the 3 vacancies, etc and hence it would unerringly point out that the appicant has missed the bus only on account of the grave illegality committed by the Government. If the Government takes into consideration those cardinal, crucial and relevant aspects of the matter, then it is clear like the daylight that the Tribunal cannot be found fault with for having issued O. P. (KAT) No. 449/2020 26 directions to consider the case of the applicant for appointment by taking decision as to whether the statutory discretion under Rule 39 of Part II KS & SSR is to be exercised or not. For that matter, there may not be any necessity for the governmental authorities either to identify the backlog vacancies from 2007 onwards, or at any time from 7.2.1996 onwards. So, therefore the plea made by the governmental authorities that floodgates will be open if backlog vacancies are identified from 7.2.1996 etc, appears to be legally faulty for reasons more than one. The legal aspect of the matter is that the said order made by the Tribunal is only on the basis of the conclusive declaration of law made by the Apex Court in Ravi Prakash's case supra. That apart, if the abovesaid perspective is duly taken note of by the Government and the case of the applicant is properly, lawfully and effectively considered in terms of Rule 39 of Part II KS & SSR as aforementioned, then there may not be any necessity for the Government to identify backlog vacancies either from 2007 onwards (date of coming into force of the rank list) or for the previous period from the date of coming into force of the Central Act, viz 7.2.1996 onwards. Identifying backlog vacancies for the purpose of compliance of directions of the Tribunal as per Anx.A-11 and Ext.P-8 would arise only if the first O. P. (KAT) No. 449/2020 27 cardinal aspect was not available. However, we make it clear that if the Government still sticks on to hypertechnical stand that the case of the applicant cannot be considered in terms of Rule 39 of Part II KS & SSR in view of abovesaid aspect, then certainly the Government will be obliged to consider the backlog vacancies from the year 2007 onwards, and find out whether if those vacancies were also reported and post was identified prior to the finalization of rank list, whether the applicant could have secured appointment etc. If the said basis for identification of backlog vacancies from 2007 onwards is also not sufficient, then certainly the Government may have to consider the effect of backlog vacancies in the cadre of CTO/STO from 7.2.1996 onwards. Therefore, we are of the firm view that the argument made by the Government regarding opening of floodgates if the directions of the Tribunal at Anx.A-11 and Ext.P-8 are complied with, appears to be specious and mainly imaginary ones. We are now apprised that the original applicant is now aged about 53 years. He has been waiting in the queue for a very long time and he has diligently prosecuted for the enforcement of his rights as can be seen from the previous rounds of litigation as per Anxs.A-8 & A-11 and Ext.P-8. The applicant has been repeatedly knocking on the doors of the governmental O. P. (KAT) No. 449/2020 28 authorities. We hope and trust that atleast now, the government authorities will rise up to the occasion and consider the case of the applicant with all compassion and taking into account the various aspects pointed out hereinabove, as well as the other aspects dealt with in Anx.A- 11 and Ext.P-8 orders of the Tribunal. So long as Anx.A-11 order has become final and conclusive, it is not open to the Government to say that the directions issued by the Government to consider the case of the applicant in terms of Rule 39 of Part II KS & SSR is liable to be interfered with.
24. For these reasons we find that there is no merit in this Original Petition, and no grounds have been made out by the petitioners for judicial interdiction of the considered order passed by the Tribunal at Ext.P-8. However, we note that the impugned Ext.P-8 final order has been rendered by the Tribunal as early as on 29.8.2019. The present OP(KAT) has been filed before this Court on 17.12.2020. The applicant has been waiting all alone with all patience. Taking note of these facts and circumstances we order that the time limit for compliance of abovesaid directions will stand extended by a further period of 6 weeks from the date of receipt of a certified copy of this judgment, as last chance. O. P. (KAT) No. 449/2020 29
25. The petitioners' counsel may forward certified copies of this judgment to the Principal Secretary to Government in the Taxes Department as well as to the Commissioner of Commercial Taxes, Government of Kerala, for necessary information and immediate compliance.
With these observations and directions, the above Original Petition (KAT) will stand dismissed. However, taking into consideration the earnest submissions of Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader, we desist from ordering any cost in this case.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
T.R.RAVI, JUDGE MMG O. P. (KAT) No. 449/2020 30 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA (EKM) NO.144/17 ALONG
WIITH ITS ANNEXURES.
ANNEXURE A1 TRUE COPY OF G.O(RT) NO.939/2016/TAXES
DATED 03.12.2016.
ANNEXURE A2 TRUE COPY OF THE RANK LIST DATED
31.07.2007.
ANNEXURE A3 TRUE COPY OF G.O(P) NO.32/2007/SWD DATED
26.06.2007.
ANNEXURE A4 TRUE COPY OF ORDER DATED 28.01.2011 IN
W.P.C NO.24046/2009 OF HON'BLE HIGH COURT
OF KERALA.
ANNEXURE A5 TRUE COPY OF G.O(P) NO.43/2009/SWD DATED
13.10.2009.
ANNEXURE A6 TRUE COPY OF G.O(P) NO.7/2011/SWD DATED
24.01.2011.
ANNEXURE A7 TRUE COPY OF REPRESENTATION DATED
28.01.2011 MADE BEFORE THE 1ST RESPONDENT
ANNEXURE A8 TRUE COPY OF ORDER DATED 22.05.2013 IN
T.A. NO.5570/2012
ANNEXURE A9 TRUE COPY OF G.O(RT) NO.12/2014/TD DATED
04.01.2014.
ANNEXURE A10 TRUE COPY OF NOTIFICATION DATED 21.10.2011
OF DISTRICT OFFICER, PSC, KANNUR.
ANNEXURE A11 TRUE COPY OF ORDER DATED 18.12.2015 IN OA
NO. 2190/2014.
ANNEXURE A12 TRUE COPY OF REPRESENTATION DATED
19.01.2016 OF APPLICANT.
O. P. (KAT) No. 449/2020
31
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT BY THE
2ND PETITIONER.
ANNEXURE R2(A) TRUE COPY OF THE G.O(P) NO.40/2011/SWD
ISSUED BY THE GOVERNMENT.
EXHIBIT P3 COPY OF THE REJOINDER FILED BY THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF MA (EKM) NO.122/2017 IN OA
(EKM) NO.144/2017.
ANNEXURE A14 TRUE COPY OF G.O(P) NO.8/17/SJD DATED
06.05.2017.
EXHIBIT P5 TRUE COPY OF THE MA (EKM) NO.392/2019 IN
OA (EKM) NO.144/2017.
ANNEXURE A15 TRUE COPY OF REPLY DATED 4.01.2019 GIVEN
BY STATE PUBLIC INFORMATION OFFICER TO THE
APPLICANT.
ANNEXURE A16 TRUE COPY OF COMMUNICATION DATED
26.04.2012 ISSUED BY THE COMMISSIONER OF
COMMERCIAL TAXES TO THE 6TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPLY STATEMENT PREFERRED
BY THE RESPONDENTS 2 AND 3.
EXHIBIT P7 TRUE COPY OF REJOINDER TO THE REPLY
STATEMENT OF RESPONDENTS 2 AND 3 FILED BY
THE 1ST RESPONDENT DATED 31.05.2018.
EXHIBIT P8 TRUE COPY OF THE ORDER IN OA(EKM) NO.
144/2017 DATED 29.08.2018.
EXHIBIT R1(A) TRUE COPY OF APPLICATION DATED 28.02.2017
SUBMITTED UNDER THE RIGHT TO INFORMATION
ACT BEFORE PUBLIC INFORMATION OFFICER OF
4TH RESPONDENT ALONG WITH ITS REPLY DATED
29.03.2017
O. P. (KAT) No. 449/2020
32
EXHIBIT R1(B) TRUE COPY OF MAIN LIST PUBLISHED BY 5TH
RESPONDENT IN CATEGORY NO.387/2013 IN THE
POST OF COMMERCIAL TAX OFFICER IN
COMMERCIAL TAXES DEPARTMENT