Kerala High Court
Jayaprakash.P.K vs The Joint Registrar Of Co-Operative ... on 31 March, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 26TH DAY OF NOVEMBER 2013/5TH AGRAHAYANA, 1935
W.P.(C).No.18840 of 2013 (D)
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PETITIONER:-
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JAYAPRAKASH.P.K.,
KARIYEDATH HOUSE, PALLIKKAL.P.O., MALAPPURAM DISTRICT.
BY ADV. SRI.P.C.SASIDHARAN.
RESPONDENTS:-
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1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
MALAPPURAM- 676 506.
2. THENHIPALAM SERVICE CO-OPERATIVE BANK LIMITED NO.1969,
THENHIPALAM, MALAPPURAM, 676 635,
REPRESENTED BY ITS SECRETARY.
3. THE MANAGING COMMITTEE OF
THE THENHIPALAM SERVICE CO-OPERATIVE BANK,
THENHIPALAM, MALAPPURAM - 676 635,
REPRESENTED BY ITS PRESIDENT.
R1 BY SPECIAL GOVERNMENT PLEADER SRI.D.SOMASUNDARAM.
R2 & R3 BY ADV. SRI.GEORGE POONTHOTTAM.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
06.11.2013, THE COURT ON 26-11-2013 DELIVERED THE FOLLOWING:-
W.P.(C).No.18840 of 2013 (D)
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APPENDIX
PETITIONER'S EXHIBITS:-
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EXT.P1 - TRUE COPY OF THE DISABILITY CERTIFICATE OF THE PETITIONER.
EXT.P2 - TRUE COPY OF THE STAFF PATTERN OF THE 2ND RESPONDENT
BANK, 6.2.2008.
EXT.P3 - TRUE COPY OF THE NOTIFICATION DATED 31-3-2010.
EXT.P4 - TRUE COPY OF THE NOTIFICATION DATED 29-9-2012.
EXT.P5 - TRUE COPY OF THE NOTIFICATION DATED 01-10-2012.
EXT.P6 - TRUE COPY OF THE HALL TICKET ISSUED TO ONE OF THE
CANDIDATE INFORMING THAT THE WRITTEN TEST WILL BE
HELD ON 04-08-2013.
EXT.P7 - TRUE COPY OF THE INTERIM ORDER DATED 7-3-2012
IN WP(C).NO.1175/2012.
EXT.P8 - TRUE COPY OF THE CIRCULATION BILL OF BEEKSHANAM DAILY.
RESPONDENTS' EXHIBITS:_
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NIL.
( true copy )
vku/
"C.R."
K. Vinod Chandran, J.
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W.P.(C).No.18840 of 2013-D
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Dated this the 26th day of November, 2013
JUDGMENT
A differently abled person, is aggrieved by non-reservation of vacancies for the disabled even after the Parliament provided for equal opportunities, protection of rights and full participation by an enactment titled Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act ,1995 (for brevity, "Disabilities Act"). The sentiment expressed in the above enactment has been imbibed and reiterated by the Legislature of the State in sub-section (5) of Section 80 of the Kerala State Co-operative Societies Act, 1969 (for short "Societies Act") to provide for such reservation in the co-operative societies within the state and regulated by the Act of the State Legislature. Despite this, the respondent society has acted in total violation of the statutory provisions; by inviting applications for appointment to the post of Peons, in the society, without reserving the 3%, entitled to the disabled by the aforementioned two enactments, is the contention. WP(C).No.18840 of 2013 - 2 -
2. The petitioner claims to be a physically challenged person having 50% disability, as evidenced by the disability certificate, Exhibit P1. The second respondent society is a Class I Society registered under the provisions of the Societies Act and the Rules framed thereunder. The staff pattern of the bank as disclosed in the sanction of the Joint-Registrar (General), Exhibit P2 is a total of 18. The petitioner has produced three notifications, Exhibits P3, P4 and P5, published at the instance of the respondent society inviting applications to the posts of Peons, Nightwatchman and Salesmen. The appointment to the post of Nightwatchman is submitted to have been deferred at the instruction of the Joint Registrar. Going by the counter affidavit filed by the second respondent society, the steps taken by the society is to fill up a total of four posts, viz., three posts of Peons and one post of Salesman. Hence as at present it is to be presumed that the bank intends to make appointments only with respect to Exhibit P4 and Exhibit P5 notifications. Exhibit P4 notification is one in which a post of Peon was sought to be filled up as a special drive to appoint Scheduled Castes/Scheduled Tribes. Exhibit P5 is a notification inviting applications to the post of one Salesman and two Peons. Going by Exhibit P5 notification, WP(C).No.18840 of 2013 - 3 - one post of Peon is again reserved for Schedule Caste/Scheduled Tribe and the other post is to be filled up from the general merit.
3. The grievance of the petitioner is that while making appointment to the post of Peons, it was incumbent upon the society to have made reservation as per sub-section (5) of Section 80 of the Societies Act and in the case of the respondent-Society; more specifically, reservation of one post as per the proviso to the said sub-section. The learned counsel for the petitioner would contend that though the Disabilities Act may not apply to the societies, reservation to the disabled is statutorily recognised by providing for reservation for the disabled in the Societies Act. That the reservation provided is to the total posts available in the society is also clear from the words employed in sub-section (5). In Anandavally, M. v. President, Aleppey District Co-operative Bank [2008 (3) ILR Kerala 702] a learned Single Judge has dilated on how the reservation is to be applied and the said decision is affirmed in appeal, W.A.No.2105 of 2008 dated 27.01.2009. This Court, therein, was concerned with sub-section (4) of Section 80 which deals with the reservation of Schedule Castes and Scheduled Tribes; and sub-section (5) also employ the same language.
WP(C).No.18840 of 2013 - 4 -
4. The learned counsel for the respondent, however, would contend that the 3% reservation though mandatory, the post to which it has to be applied can be decided only by the employer Society. What the proviso to sub-section (5) of Section 80 provides is that, in all societies where there are more than 10 employees, but less than 33, there shall be one post reserved to the disabled. Hence, it is for the society to decide whether to reserve the 11th post or the 33rd post. This Court, hence, cannot, under Article 226, issue a mandatory direction so as to compel the society to make the reservation in any or either of the said vacancies, is the argument.
5. Sub-section (5) of Section 80 of the Societies Act along with the proviso is extracted hereunder;
"(5) Notwithstanding anything contained in sub-section (1) or (2), three per cent of the total posts of employees of every society shall be reserved for physically handicapped persons having disability of forty per cent 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". WP(C).No.18840 of 2013 - 5 -
To understand the dictum laid down in Anandavally (supra), the brief facts leading to the said decision has to be noticed. The society, which was the employer therein, invited applications to the posts of Clerks, wherein 50% of the total vacancies were reserved for the employees as per Rule 189 of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as "the Societies Rules"). 10% reservation was provided for the members belonging to Scheduled Castes and Scheduled Tribes (for brevity "SC/ST"). In purported compliance of the reservation for SC/ST, 5 SC/ST candidates were appointed from the society quota and 1 from the general quota. The Court noticed the rule of reservation introduced for the first time, with effect from 25.02.1985, and found that the persons already in employment in a co-operative society, as on that date, cannot be identified as against the quota statutorily reserved by Section 80(4). For compliance of the mandate, the procedure to be adopted was stated to be as follows:
"Therefore, the rule of reservation prescribed by the legislative mandate in section 80(4) can be achieved only by making appointments against vacancies arising after the introduction of that provision in such a manner as to ensure that, by such appointments, ten per cent of the entire posts for which direct recruitment is the WP(C).No.18840 of 2013 - 6 - method of appointment, is manned by members of the Scheduled Castes and Scheduled Tribes, recruited with the support of that rule of reservation, on or after 25-2- 1985, the date of coming into force of the Ordinance that preceded Act 29 of 1986".
6. Though certain modifications were made in Writ Appeal, the dictum as such was approved by the Division Bench also. Hence, while considering sub-section (5), which employs the very same language, necessarily it has to be understood that the reservation is to be made on the total cadre strength. In the present case, it is not the main Section, however, that decides the reservation. Since the total sanctioned posts are below 33; the proviso would be applicable on the society, recruiting anybody over and above the 10. Admittedly that is being attempted now by calling for appointments to 3 posts of Peon and 1 post of Salesman. The post of Salesman is not an identified post, going by Circular No.54/2011 of the Registrar of Co-operative Societies dated 14.07.2011, which identifies the categories to which appointments are to be made for satisfying the mandate of reservation for disabled. The post of Peon, however, falls within the identified category.
WP(C).No.18840 of 2013 - 7 -
7. The reservation for disabled has been categorized to be horizontal as against the vertical reservation for SC/ST and Other Backward Classes (OBC) in Indra Sawhney v. Union of India and others [AIR 1993 SC 477]. It was also held by the Constitution Bench of the Supreme Court that the ceiling of 50% reservation applies only to caste reservation under Article 16(4). Essentially what has been found is that in vertical reservation on a 100 point roster the vacancies are identified; for example: the 1st vacancy going to the merit based candidates, the 2nd to a Scheduled Caste, the 3rd again to a merit based candidate, the 4th to a OBC candidate and so on and so forth. This would satisfy the 50% rule also laid down by the Supreme Court. However, when making reservation for the disabled and resorting to appointments to satisfy such reservations, it is said to be horizontal in so far as the disabled candidate who is successful in the selection process is adjusted against the general category vacancy or the vertically reserved vacancy, with reference to the category in which he falls.
8. The reservation to the disabled and the procedure to be followed engaged the attention of the Supreme Court recently, in Union of India v. National Federation of the Blind [2013 (4) ILR Kerala 279]. The Hon'ble Supreme Court followed an earlier WP(C).No.18840 of 2013 - 8 - decision in Govt. of India v. Ravi Prakash Gupta [(2010) 7 SCC 626]. Ravi Prakash Gupta (supra) was concerned with the question whether the identification of posts, to comply with the reservation mandated by the Disabilities Act, should be from the date of the Act or from the date of identification of the said posts in the All India Service cadre, which was made with effect from 2006. The contention of the Government of India was that though posts in the Groups 'C' and 'D' were identified earlier, as early as in 1996, Groups 'A' and 'B' in the All India services were identified only in the year 2006. Since the reservation of posts as mandated under Section 33 of the Disabilities Act is dependent upon the identification of the posts as per Section 32, the reservation as such could take effect only from the date of identification, was the contention. The Hon'ble Supreme Court found that neither Section 32 nor Section 33 makes any distinction with regard to Groups 'A', 'B', 'C' and 'D' posts and they only speak of identification and reservation of posts for people with disabilities. Though Section 32 requires identification of posts, it was held that that cannot be a tool to deny the benefits of Section 33. Executive lethargy was held to be not a reason for non-compliance of the legislative mandate.
WP(C).No.18840 of 2013 - 9 -
9. National Federation of the Blind (supra) affirmed Ravi Prakash Gupta (supra) and comprehensively dealt with the various Government Orders issued by the Union of India to dilate upon how the reservation for the disabled, as provided under the Disabilities Act, has to be implemented. There also, the question arose as to whether the reservation of 3% has to be made to the posts in the total cadre strength or in the identified vacancies alone. The intention of the legislature, on a reading of Section 33 as also Ravi Prakash Gupta (supra) was held to be:
"... reservation of 3% for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts" (para 30). The contention of the Union of India that reservation in terms of Section 33 has to be computed against identified posts only was held to be not tenable and was rejected as completely misconceived.
10. Indra Sawhney (supra) was also noticed to find that the 50% ceiling would not be applicable for reservation in favour of the disabled, which, as noticed above, was categorized as horizontal. It was concluded that the computation of reservation WP(C).No.18840 of 2013 - 10 - for persons with disability has to be computed in the case of Group 'A', 'B', 'C' and 'D' posts in an identical manner, i.e., "computing 3% reservation on total number of vacancies in the cadre strength" (sic) (para 51). To that extent, the Office Memorandum dated 29.12.2005 issued by the Government of India was held to be contrary and was struck down. Hence, it is clear that the reservation to the disabled being horizontal, the 50% rule is not applicable and the reservation of 3% of the vacancies as mandated by the Disabilities Act should be computed on the total cadre strength.
11. We are, in the instant case, not really concerned with such computation, since the reservation has to be decided in terms of the proviso to the sub-section. In deciding how the reservation has to be applied, the Office Memorandum issued by the Government of India can supply some guidance, especially the maintenance of rosters in effecting reservation:
"15. Effecting Reservation - Maintenance of Rosters:
(a) all establishments shall maintain separate 100 point reservation roster registers in the format given in Annexure II for determining/effecting reservation for the disabled - one each for Group A posts filled by direct WP(C).No.18840 of 2013 - 11 - recruitment, Group B posts filled by direct recruitment, Group C posts filled by direct recruitment, Group C posts filled by promotion, Group D posts filled by direct recruitment and Group D posts filled by promotion.
(b) Each register shall have cycles of 100 points and each cycle of 100 points shall be divided into three blocks, comprising the following points:
1st Block - Point No.1 to point No.33 2nd Block - Point No.34 to point No.66 3rd Block - Point No.67 to point No.100
(c) Points 1, 34 and 67 of the roster shall be earmarked reserved for persons with disabilities - one point for each of the three categories of disabilities. The head of the establishment shall decide the categories of disabilities for which the points 1, 34 and 67 will be reserved keeping in view all relevant facts.
(d) All the vacancies in Group C posts falling in direct recruitment quota arising in the establishment shall be entered in the relevant roster register. If the post falling at point No.1 is not identified for the disabled or the head of the establishment considers it desirable not to fill up by a disabled person or it is not possible to fill up that post by the disabled for any other person, one of the vacancies falling at any of the points from 2 to 33 shall be treated as reserved for the disabled and filled as such. Likewise a vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be filled by the disabled.
The purpose of keeping points 1, 34 and 67 as reserved WP(C).No.18840 of 2013 - 12 - is to fill up the first available suitable vacancy from 1 to 33, first available suitable vacancy from 34 to 66 and first available suitable vacancy from 67 to 100 persons with disabilities.
xxx xxx xxx".
12. On a reading of the above, it is clear that, in a 100 point roster, what was intended was to identify the vacancies arising at the 1st point of time in a block of 33 (being 1/3rd). The same procedure can safely be adopted in the instant case also, since what is intended by the statutory mandate is to provide reservation to the disabled and it cannot be left to the caprice of the employer to decide as to when and to which post he would make such reservation.
13. The proviso indicates that in any society having more than 10, but less than 33 employees, reservation shall be made to at least 1 post. The contention of the learned counsel for the respondent that the employer can wait till the 33rd post comes, defeats the very purpose intended by the legislature. Here, particularly, the sanctioned post is only 18. What the society would contend is that they are entitled not to comply with the reservation till they have the necessary business to get the 33rd post sanctioned by the Department. This definitely defeats the purpose WP(C).No.18840 of 2013 - 13 - with which sub-section (5) and the proviso has been introduced in Section 80. Such a contingency may never arise and the language of the proviso is not to be lightly dealt with so as to absolve employers from their liability to provide reservation to the disabled. To comply with the reservation of 3%, as indicated in the proviso; any society who employs more than 10 persons, has to make such reservation in the 11th or 12th post, if the said post is an identified post. In any event, the 1st or the 2nd identified post to which appointment is made in excess of 10 posts, should be reserved for the disabled. The fact whether the 10 posts already existing are identified or not, is immaterial. The Supreme Court decisions cited above are of binding import in so far as to hold that compliance of sub-section 5 of Section 80 should be to the total cadre strength and not to identified posts alone.
14. In the present case, admittedly 10 persons are already working in the society. We need not look at whether there are any unidentified posts in the 10 posts already filled up. Any appointments made in excess of 10 in an identified post should be set apart for the disabled. For effectively working the reservation provided in the proviso, in the instant case, the posts now available have to be looked at. As was noticed, going by the WP(C).No.18840 of 2013 - 14 - averments in the counter affidavit there are 3 posts of Peons available to set apart for SC/ST and 1 post to general category. 1 Salesman is also to be filled up, which is not an identified category for appointment of the disabled as per the Circular mentioned above. But, however, 1 post of Peon necessary has to be reserved to the disabled out of the 3. It is not to say that then no general candidate would be entitled to apply. One has to notice that the disabled may belong either to the general category or to the reserved category of Backward Classes. When the disabled are given preference for appointment in the notification and applications are called for from the disabled, necessarily the standards applicable to them cannot be similar to that of the other candidates. The employer would be entitled to prescribe such standards, but not as high as that provided for the candidates without disability, both general and reserved.
15. Any of the disabled candidate having acquired the said standard and having qualified for appointment ought to be appointed in one of the posts, but, however, with reference to the category to which he/she belongs. For example, if a disabled person of the general category is 1st among the disabled, then he ought to be adjusted against the general category vacancy and if it WP(C).No.18840 of 2013 - 15 - is a disabled SC candidate who comes 1st, then necessarily he would have to be appointed in the reserved vacancy. The mandate of reservation, as provided in the proviso, cannot at all be escaped from and it has to be complied with at the earliest moment and would not at all depend upon the whim or caprice of the employer. To leave it to the employer to decide as to which vacancy he would appoint a disabled person entitled to reservation would be defeating the legislative mandate. The notifications, Exhibits P3, P4 and P5, in the instant case are, hence, found to be bad for non-compliance of the statutory mandate in sub-section (5) of Section 80 of the Societies Act. The employer cannot proceed with the selection and recruitment as per the said notifications. The employer/respondent shall bring out a notification for the 3 posts of Peons and 1 Salesman with the reservations, already stipulated, and providing also for reservation of the disabled, which shall be notified in the publication.
The writ petition hence, stands allowed, without costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
( true copy )