Kerala High Court
G.Gopakumar vs The State Of Kerala on 16 July, 2015
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
THURSDAY, THE 19TH DAY OF JANUARY 2017/29TH POUSHA, 1938
OP(KAT).No. 183 of 2016 (Z)
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AGAINST THE ORDER IN OA 222/2015 of KERALA ADMINISTRATIVE TRIBUNAL,
(CAMP SITTING, ERNAKULAM)THIRUVANANTHAPURAM DATED 16-07-2015
PETITIONER:
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G.GOPAKUMAR,
AGED 37 YEARS, S/O.LATE A.GOPI, KOCHUPARAMBIL HOUSE,
PERUNNA WEST, PANACHIKAVU.P.O., CHANGANASSERY,
PIN - 686 102.
BY ADVS.SRI.R.O.MUHAMED SHEMEEM
SMT.NASEEHA BEEGUM P.S.
SRI.T.P.ABDUL HAMEED
RESPONDENTS:
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1. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
GENERAL EDUCATION DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
PIN - 695 001.
2. THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY ITS SECRETARY, PATTOM,
THIRUVANANTHAPURAM, PIN - 695 004.
3. THE DISTRICT OFFICER,
THE KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE,
THAYYIL BUILDING, NEAR T.B.JUNCTION,
PATHANAMTHITTA DISTRICT - 689 645.
4. DEPUTY DIRECTOR OF EDUCATION,
LOCATED AT THIRUVALLA, PATHANAMTHITTA DISTRICT,
PATHANAMTHITTA, PIN - 689 645.
O.P.(KAT)NO.183/2016
5. AJITHAKUMARI.R.,
FATHER'S NAME AND AGE NOT KNOWN TO THIS PETITIONER,
RESIDING AT 'AJITHA BHAVANAM' KALAIPADINJAREMURI,
MANNADI.P.O., PATHANAMTHITTA, PIN - 691 530.
6. RATHEESHKUMAR.S.K.,
FATHER'S NAME AND AGE NOT KNOWN TO THIS PETITIONER,
RESIDING AT KALALAYAM, MITHRAPURAM,
PARANTHAL.P.O., PATHANAMTHITTA, PIN - 689 518.
7. RENJITH.C.G.,
FATHER'S NAME AND AGE NOT KNOWN TO THIS PETITIONER,
RESIDING AT NELLUR HOUSE, KUMBAZHA.P.O.,
PATHANAMTHITTA, PIN - 689 653.
BY GOVERNMENT PLEADER SRI.A.J.VARGHESE
BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 19-01-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No. 183 of 2016 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1: TRUE COPY OF O.A.(EKM)NO.222/2015 DATED 29.01.2015
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (CAMP SITTING
AT ERNAKULAM.
ANNEXURE A1: TRUE COPY OF THE DISABILITY CERTIFICATES ISSUED BY
COMPETENT AUTHORITY'S DATED 15.12.2014
ANNEXURE A2: TRUE COPY OF THE COMMUNITY CERTIFICATE DATED
21.12.2007 ISSUED BY THAHASILDAR, CHANGANASSERY
ANNEXURE A3 : TRUE COPY OF GAZETTE NOTIFICATION DATED 30.4.2012
ISSUED BY THE 2ND RESPONDENT.
ANNEXURE A4 : TRUE COPY OF SECONDARY SCHOOL LEAVING CERTIFICATE OF
APPLICANT ISSUED BY THE HEAD MASTER, NSS HIGH SCHOOL FOR BOYS,
PERUNNA.
ANNEXURE A5: TRUE COPY OF DEGREE CERTIFICATES ISSUED BY THE
MAHATMA GHANDI UNIVERSITY IN RESPECT OF BACHELOR OF ARTS
ANNEXURE A6: TRUE COPY OF B.ED. CERTIFICATE ISSUED BY THE MAHATMA
GHANDHI UNIVERSITY IN FAVOUR OF APPLICANT
ANNEXURE A7 :TRUE COPY OF THE RANK LIST NO.136/14/SSII, CATEGORY
NO.249/2012 PUBLISHED BY 2ND RESPONDENT.
ANNEXURE A8: TRUE COPY OF THE APPOINTMENT CHART DATED 02.07.2014
ISSUED BY THE 3RD RESPONDENT FOR THE APPOINTMENT OF 1ST RANK
HOLDER.
ANNEXURE A9: TRUE COPY OF THE COMMUNICATION DATED 02.12.2014 GIVEN
BY PUBLIC INFORMATION OFFICER/ADMINISTRATIVE ASSISTANT, OFFICE OF
DEPUTY DIRECTOR EDUCATION, PATHANAMTHITTA DISTRICT.
ANNEXURE A10: TRUE COPY OF THE COMMUNICATION DATED 31.10.2014 GIVEN
BY STATE PUBLIC INFORMATION OFFICER, PSC, PATHANAMTHITTA DISTRICT.
ANNEXURE A11: TRUE COPY OF THE APPOINTMENT CHART DATED 06.12.2014,
ISSUED BY THE 3RD RESPONDENT IN CONNECTION WITH APPOINTMENT OF
RESPONDENTS 5 TO 7
O.P.(KAT)NO.183/2016
EXT.P2: TRUE COPY OF COMMON ORDER IN O.A(EKM)NO.222/2015 &
O.A.NO.(EKM).NO.738/2014 DATED 16.7.2015 OF KERALA ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
EXT.P3: TRUE COPY OF GENERAL RANK LIST NO.314/12/SSII CATEGORY
NO.389/2008 BROUGHT INTO FORCE WITH EFFECT FROM 31.7.2012 OF the
POST OF THE U.P.SCHOOL ASSISTANT MALAYALAM MEDIUM IN PATHANAMTHITTA
DISTRICT PUBLISHED BY THE 2ND RESPONDENT.
EXT.P4: TRUE COPY OF ORDER IN O.A.(EKM) NO.851/2015 DATED
21/12/2015 OF LEARNED KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM
EXT.P5 TRUE COPY OF THE FORMAT DATED 5/12/2016 SHOWING THE RANK
UPTO WHICH ADVISED
EXT.P6 TRUE COPY OF the APPOINTMENT CHART WITH DATE OF ADVISE ON
24/08/2012 ISSUED BY THE 3RD RESPONDENT
EXT.P7 TRUE COPY OF THE APPOINTMENT CHART WITH DATE OF ADVISE
ON 24.08.2012 ISSUED BY THE THIRD RESPONDENT
EXT.P8 TRUE COPY OF THE CIRCULAR NO.3/2013 DATED 10/4/2013
/TRUE COPY/
PS TO JUDGE
C.T.RAVIKUMAR &
K.P.JYOTHINDRANATH, JJ.
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O.P.(KAT)No.183 OF 2016
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Dated this the 19th day of January, 2017
JUDGMENT
Ravikumar, J.
The challenge in this original petition is against the common order dated 16/07/2015 passed by the Kerala Administrative Tribunal, Ernakulam Bench in O.A.(EKM)No.222/2015. The petitioner herein was the applicant herein. He is a physically handicapped person suffering from 60% locomotor disability and thereby falls within the category of PH Ortho for the purpose of horizontal reservation. The Public Service Commission had issued Annexure A3 notification dated 30.04.2012 inviting applications for appointment against four vacancies for the period from 1.1.2004 to 31.12.2007 for appointment to the post of U.P.School Assistant ( Malayala Medium) in Pathanamthitta District by way of special recruitment of physically disabled candidates. The petitioner who underwent the selection process was selected and included in Annexure A7 ranked list O.P.(KAT)No.183/2016 2 published by the PSC on 13.03.2014. In fact, Annexure A7 list published pursuant to the selection process based on Annexure 3 notification contained separate lists for blind/partially blind, partially deaf and orthopaedically handicapped persons. The petitioner was included as Rank No.3 along with two other orthopaedically handicapped persons in the list prepared for orthopaedically handicapped persons. There was only one person in the blind/partially blind persons group and no one was available to be included in the list for partially deaf. It is the common case that going by the orders of the Government as also the relevant circulars issued by the Public Service Commission, the 33rd, 66th and 99th turns in a hundred point roaster should go to blind/partially blind, partially deaf and orthopaedically handicapped candidates, in that order. Later, the Public Service Commission published Annexure A8 appointment chart. It would reveal that on 2.7.2014 the sole blind candidate included in Ext.A7 list was advised for appointment. Subsequently, the second vacancy available to partially deaf turn was given to PH Ortho candidate from the general rank list published on 31.7.2012 as no PH deaf candidate O.P.(KAT)No.183/2016 3 was available in Annexure A7 special list. In fact, such an appointment was given to the fifth respondent. The third vacancy was filled up by the PH Ortho candidate in Annexure A7 viz., rank No.1 therein. The fourth vacancy, going by the turn, should go to the category of blind/partially blind. It was given to a blind candidate included in the general rank list. It is in the said circumstances that feeling aggrieved by the manner in which advices were effected by the Public Service Commission as against those vacancies that the petitioner filed the above mentioned original petition. The Tribunal after a careful consideration of the rival contentions and also the materials on record passed the impugned order dismissing the original application. Hence this original petition.
2. We have heard the learned counsel for the petitioner and also the learned standing counsel for the PSC. The main thrust of the petitioner's contention is to the effect that since Annexure A7 special list was drawn and was in force the PSC ought not have effected advise of candidates from the general list before exhausting the said special list to fill up the four notified vacancies. The learned counsel for the O.P.(KAT)No.183/2016 4 Public Service Commission virtually, attempted to sustain the action of the PSC by placing reliance on Circular No.3/2013 dated 10.04.2013. In fact, the PSC had explained the manner in which advices were effected as against the four vacancies, as adverted to hereinbefore. The Tribunal found that the appointment of the fifth respondent in preference to a PH. Ortho candidate available in Ext.A7 list, from the general rank list was illegal and consequently orders were issued to terminate the service of the fifth respondent and to revise the appointment order. The sixth respondent who is the second rank holder in Ext.A7 list in PH.Ortho list in Annexure A7 was ordered to be adjusted against the vacancy which would arise consequent to the termination of the fifth respondent.
3. The contention of the petitioner is that the Tribunal ought to have interfered with the appointment of 7th respondent as well, as he was a person included in the general rank list published by the Public Service Commission on 31.07.2012 for appointment to the post of U.P.S.A. ( Malayalam Medium) in Pathanamthitta District. There is no case that the said general rank list which was published on O.P.(KAT)No.183/2016 5 31.07.2012 was not in force at the time when the 7th respondent was given appointment. There is also no dispute regarding the fact that as against the fourth vacancy, the turn was that of a blind. Admittedly, the petitioner belongs to the category of PH Ortho. The contention of the petitioner is that since no blind candidate was available in Annexure A7 list another candidate included in the said list, though not belonging to blind category, ought to have been given the appointment. In other words, according to the petitioner, being a person who is included in Annexure A7 list, though in PH Ortho category, in the absence of candidate from blind category he should have been preferred over the 7th respondent. At the same time, it is pertinent to note that the 7th respondent is also a person belonging to blind category and true that he was not included in Annexure A7 list whereas he is a rank holder in the general list.
4. It is the further submission of the learned counsel appearing for the petitioner that since the 7th respondent was included in the general list, he could have been given advice at a later point of time in case vacancies were reported for giving advice. Being a person O.P.(KAT)No.183/2016 6 included in Annexure A7 list for special recruitment, the PSC ought to have effected the advice of the petitioner from Annexure A7 list in place of the 7th respondent. The Tribunal considered the said contention of the petitioner in the light of the stipulations in Circular No.3/201. In accordance with the said circular i.e. Circular No.3/2013 dated 10.04.2013, when a particular category of physically handicapped candidate is not available in a list for special recruitment, it has to be filled up from members belonging to the same category from the general list in force or published subsequently drawn for appointment to the same post. Thus, it is evident that such a Circular is issued in contemplation of circumstances akin to the one on hand and it even in the case of absence of persons belonging to that category in the special list, virtually, to see that the particular disabled category in whose favour a turn arose should get it in case a person belonging to the same category is available either in the general list in currency or a list which was published subsequently. There cannot be any doubt with respect to the fact that such a circular is issued to the benefit of persons belonging to physically handicapped categories.
O.P.(KAT)No.183/2016 7
5. We have already noted that the fact that the fourth vacancy belonging to the turn of blind candidate is not in dispute. As also there is no dispute to the fact that the 7th respondent is a person belonging to the said category of blind and he was included in the general list published on 31.07.2012 for appointment to the same post and was in force at the relevant point of time. Therefore, it can be seen that the PSC has effected advice perfectly in tune with Circular No.3/2013 dated 10/04/2013 and the turn which was available to blind category was given to a person belonging to the same category though he was not a person included in the special list, but in the general list.
6. In such circumstances, we do not find any reason to hold that the Public Service Commission is illegal or illogical warranting interference. The contention that the 7th respondent could have been made to wait till occurrence of vacancies and his turn reaches his ranking in the general list cannot be accepted in the light of Circular No.3/2013. Evidently, the said circular was also correctly applied.
The upshot of the discussion is that there is no illegality or impropriety in the order passed by the Tribunal warranting an O.P.(KAT)No.183/2016 8 interference by this Court. This original petition is liable to fail and accordingly it is dismissed.
C.T.RAVIKUMAR, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.
20/01/2017