Kerala High Court
The Kerala Federation Of The Blind vs The State Of Kerala on 6 May, 2008
Author: V.Giri
Bench: V.Giri
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37281 of 2007(L)
1. THE KERALA FEDERATION OF THE BLIND,
... Petitioner
2. ROSILY A.O., D/O.LATE OUSEPH,
3. C.M.SHALI, S/O.C.M.MAKKAR,
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE PRINCIPAL SECRETARY,
3. THE PRINCIPAL SECRETARY,
For Petitioner :SRI.K.I.ABDUL RASHEED
For Respondent :ADVOCATE GENERAL
The Hon'ble MR. Justice V.GIRI
Dated :06/05/2008
O R D E R
V.GIRI, J.
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W.P.(C).No.35134, 37281 & 37825 of 2007,
2999, 4068, 6312, 6958, 7044,
8966 & 10275 of 2008
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Dated this the 6th day of May, 2008.
JUDGMENT
Though the relief sought for by the petitioners in these cases are not identical or even similar, the disposal of W.P.(C) No.37281/07 will have an impact on the other writ petitions and therefore, they have been heard together and are disposed of by this common judgment. After referring to certain issues, I shall take each one of the writ petitions. Reference is made to W.P.(C) No.37281/07 in the first instance.
2. The first petitioner is an association registered under the Travancore-Cochin Literary Charitable Societies Registration act and is party to the National Federation of the Blind. 2nd and 3rd petitioners, members of the 1st petitioner-association, are visually handicapped persons. The grievance highlighted by the petitioners in these writ petitions revolves around what they allege as failure on the part of the Government and its officials to maintain the ratio of 1 : 1 : 1 among the orthopaedically handicapped, deaf, dumb and blind (visually impaired) persons in the matter of appointments W.P.(C).NO.37281/07 & Con.cases :: 2 ::
in the civil services against vacancies reserved for physically handicapped persons.
3. The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation Act, 1995 {hereinafter referred to as "the Act"} was promulgated with a view to give effect to the international proclamation of full participation and equality of people with disabilities in the Asian and Pacific Region. Section 33 of the Act mandates that the appropriate Government shall provide for reservation of at least 3% of the vacancies in every establishment for physically handicapped persons. The provisions of the Act have an overriding effect and therefore it is mandatory on the part of the Government to necessarily reserve 3% of the vacancies for physically handicapped persons. The Act further provides that the vacancies for physically disabled should be chosen in such a manner that the 3 particular categories of physically handicapped get equal opportunities to get appointed under the scheme and in this regard the ratio of 1 : 1 : 1 should be maintained among the Orthopaedically handicapped, deaf and dumb and the blind (visually impaired).
W.P.(C).NO.37281/07 & Con.cases :: 3 ::
4. Taking note of Section 33 of the Act, the Government issued Ext.P3 Government Order providing for a scheme for physically handicapped persons in public services as per the scheme appended to Ext.P3. Clause (3) of the said scheme is relevant and is extracted hereunder:
"Three per cent of the vacancies arising in Class III and Class IV categories shall be reserved for appointment from physically handicapped persons. The posts to which appointment will be made are enumerated in Annexure I. The number of appointments to be made each year in various categories will be fixed annually by Government in the Personnel and Administrative Reforms Department on the basis of the number of appointments made in the Class III and Class IV posts (except N.J.D. vacancies) during the previous year. The Government will collect in January each year from the office of the Kerala Public Service Commission details of the vacancies in Class III and Class IV posts to which advice has been made by the Public Service Commission excluding N.J.D. vacancies. The list should contain the number of advices made by each district office and head office separately. Three percentage of the total number of vacancies will be allocated among various districts taking into account the number of appointments made in each district. The posts suitable for appointment of the different categories of Physically Handicapped are given in Annexure II. W.P.(C).NO.37281/07 & Con.cases :: 4 ::
5. Under Ext.P3, the selection was to be done by a committee consisting of the District Collector as the Chairman. The appendix to the order also identifies the posts against which the physically handicapped persons could be appointed. Obviously, there were certain posts against which the concerned physically handicapped persons may not be suitable for appointment and therefore, the posts which are suitable for the Orthopaedically handicapped, deaf, dumb and the visually impaired persons have been separately identified in the Appendix to Ext.P3 Government Order.
6. Even during the currency of Ext.P3, the Government came out with Ext.P4 Government Order which, inter alia, directed that those physically handicapped persons, who were appointed on a provisional basis between 15.8.1998 and 15.8.1999 under Rule 9(a)(i) of Part II of the KSSR will be re- engaged and regularized in service. Ext.P4 Government Order, inter alia, provided that the concerned persons should have completed 179 days during the period between 15.8.1998 and 15.8.1999. This court, in several writ petitions, directed that such physically handicapped persons who have rendered services W.P.(C).NO.37281/07 & Con.cases :: 5 ::
during the aforementioned period, in such a manner that a portion alone would fall within the aforementioned period, were also entitled for the benefit of the Government Order and accordingly the Government issued Ext.P5 order directing that those among the disabled who got provisional service during the period between 15.8.1998 and 15.8.1999 were entitled to re- engagement, even if the entire period of 179 days of service did not fall within the span aforementioned. The petitioners have no grievance, as such, regarding the broad principle under which Exts.P4 and P5 have been issued, but are particularly aggrieved by two factors. They are firstly aggrieved by the fact that the Government has not take any steps to maintain the internal ratio of 1 : 1 : 1 among the physically handicapped persons, while implementing Section 33 of the Act and Ext.P3 order. It is contended that the posts to be reserved for physically handicapped persons should have been identified in such a manner that the internal ratio of 1 : 1 : 1 is maintained while effecting appointments from physically handicapped persons. Insofar as the implementation of Ext.P4 is concerned, it is contended that more than 90% of the physically handicapped W.P.(C).NO.37281/07 & Con.cases :: 6 ::
persons, who were engaged on a provisional basis during the period between 15.8.1998 and 15.8.1999, are Orthopaedically handicapped persons and when Exts.:P4 and P5 were issued giving a right of re-engagement to such physically handicapped persons, it came about that an overwhelming majority of physically handicapped persons, who turned out to be beneficiaries of Exts.P4 and P5 orders are Orthopaedically handicapped persons. Though the petitioners have no grievance against the Orthopaedically handicapped persons also being conferred a right of re-engagement, their grievance is that under Exts.P4 and P5 order, the Government has made it clear that the re-engagement being given to the physically handicapped persons under Exts.P4 and P5 will first entail an appointment against the backlog vacancies for the years subsequent to 2001. The net result, according to the petitioners, is that in the course of accommodating the physically handicapped persons, who were engaged on a provisional basis between 15.8.1998 and 15.8.1999, the vacancies, which otherwise should have been set apart for visually impaired persons and had turned out to be backlog are also being filled up by Orthopaedically handicapped W.P.(C).NO.37281/07 & Con.cases :: 7 ::
persons. It is in these circumstances that the petitioners have approached this court seeking a direction to the Government and its officials to see that in filling up the 3% vacancies reserved for physically handicapped persons, the internal ratio of 1: 1: 1 among the physically handicapped persons should be maintained and the backlog vacancies, which otherwise must be made available to visually impaired persons must be filled up only by such persons and at any rate, enforcement of Exts.P4 and P5 orders should not result in the proportionate number of backlog vacancies to be made available to visually impaired persons being taken over by the Orthopaedically handicapped persons to the detriment of the former.
7. A statement has been filed on behalf of the 1st respondent. It is pointed out that various provisions of the Act are being implemented in the State and in accordance with the provisions of the Act, a scheme for direct recruitment of disabled persons was drawn up as per Ext.P3 and it is being implemented.
Subsequently, in order to effectively implement the scheme, with greater transparency and accountability, the selection process of physically handicapped persons has been entrusted with the W.P.(C).NO.37281/07 & Con.cases :: 8 ::
Public Service Commission {for short "the Commission"}. The Commission has taken up the recruitment process. Referring to Exts.P4 and P5 Government Orders, it was pointed out that Ext.P4 order came to be passed taking note of the directions issued by this court in several writ petitions. Since the provisionally appointed persons had to be re-engaged, it was not possible to maintain the internal ratio of 1: 1: 1, while passing Ext.P5 order. 603 number of physically handicapped persons were ordered to be reinstated in service against the backlog vacancies up to 2003 reserved for physically handicapped persons. Paragraph 5 of the statement gives a gist of the action taken by the government in this regard. It reads as under:
"All the 603 disabled persons who were appointed during the period from 15.08.1998 to 15.08.1999 are ordered to be reinstated in service are persons sponsored by the Employment Exchanges. The recommendation of individuals and their appointment for temporary employment through Employment Exchanges are not done by observing 1 : 1 : 1 ratio amongst physically, visually and hearing challenged individuals. Besides the duties and functions attached to the posts to which they were appointed were not assessed to be suitable for the 2 categories of Blind and Deaf. It is submitted that most of the posts enlisted in the W.P.(C).NO.37281/07 & Con.cases :: 9 ::
G.O.(P)85/07/SWD dated 30.11.07 are posts meant for the Orthopaedically challenged. Out of the 603 persons, 555 belong to the orthopaedically handicapped and there are only 33 visually challenged and 15 hearing impaired. Vide G.O.(P)No.50/07/SWD dated 15.09.2007 the selection of Class III and IV was changed from the District Collectors to the Kerala Public Service Commission. In addition to the above 603 persons, as on 30.09.2007, there were 25 orthopaedically handicapped, 13 hearing impaired and 6 visually impaired persons pending appointments from the select lists prepared by the District Collectors of Thiruvananthapuram and Malappuram.
8. The petitioners have filed a reply statement. They point out that the Government was obliged to maintain the internal ratio of 1: 1: 1 while effecting appointments to the 3% vacancies reserved for physically handicapped persons and whatever be the justification for issuing Ext.P5 order, it should not have been done in such a manner as to deprive the visually impaired persons of the vacancies which rightfully belonged to them. While recognizing a right of re-engagement of physically handicapped persons, who were provisionally engaged between 15.8.1998 and 15.8.1999 it should not have resulted in upstaging W.P.(C).NO.37281/07 & Con.cases :: 10 ::
the visually impaired persons from being considered against the vacancies which ought to have been filled up only by visually handicapped persons.
9. I heard learned counsel for the petitioners Sri.Abdul Rasheed and learned Advocate General Sri.C.P.Sudhakara Prasad along with Senior Government Pleader Sri.Nandakumar in the aforementioned writ petition. I also heard the counsel who appeared for the various parties, who have got themselves impleaded.
10. The petitioners are right in contending that a minimum of 3% vacancies in public employment is mandatorily reserved for physically handicapped persons. The petitioners are also right in contending that the internal ratio of 1:1:1 is to be maintained while filling up the vacancies reserved for physically handicapped persons. A strict implementation of Ext.P3 Government Order could not have resulted in any grievance by the visually impaired persons that the ratio is not adhered to. But the internal ratio was admittedly not being adhered to when the Government decided to re-engage the physically handicapped persons, who were provisionally engaged during the period W.P.(C).NO.37281/07 & Con.cases :: 11 ::
between 15.8.1998 and 15.8.1999. Sri.Rasheed is right in contending that this situation came about because in provisionally engaging physically handicapped persons between 15.8.1998 and 15.8.1999 the various heads of offices did not kept in mind the internal ratio of 1:1:1. Thus, when a right of re-engagement was given to physically handicapped persons, who were engaged provisionally between 15.8.1998 and 15.8.1999 it consequently resulted in an overwhelming number of Orthopaedically handicapped persons getting re-engaged and regularized in services. Learned counsel for the petitioners submits that they do not have a grievance against such right of re-engagement being given to Orthopaedically handicapped persons. But the real grievance arises when enforcement of Exts.P4 and P5 Government Orders is against the backlog vacancies of physically handicapped persons up to the year 2003. Since overwhelming number of physically handicapped persons engaged during the period between 15.8.1998 and 15.8.1999 were Orthopaedically handicapped persons, this has resulted in the vacancies which otherwise should have been set apart for visually handicapped W.P.(C).NO.37281/07 & Con.cases :: 12 ::
and hearing impaired persons also being made available to Orthopaedically handicapped persons.
11. The petitioners are right in submitting so. In fact, that the ratio was not adhered to is admitted in the statement filed on behalf of the 1st respondent; that the ratio is to be clearly adhered to is also fairly admitted in the statement.
12. Learned Advocate General Sri.C.P.Sudhakara Prasad, on instructions, submits that Ext.P5 order came to be issued to effect compliance with the directions issued by this court in several judgments directing that the benefit of Ext.P4 Government Order to be given to all those physically handicapped persons, who were engaged between 15.8.1998 and 15.8.1999, even if only a portion of the service rendered by them fall within such time. Learned Advocate General submits that the Government has taken a decision to the effect that all physically handicapped persons, viz., Orthopaedically handicapped, hearing impaired and visually impaired, who have rendered service during the period between 15.8.1998 and 15.8.1999 will be re-engaged and regularized in service. The submission made by the learned Advocate General is recorded.
W.P.(C).NO.37281/07 & Con.cases :: 13 ::
13. Learned Advocate General further submits that the Government has already decided to entrust the special recruitment to the vacancies set apart for physically handicapped persons to the Commission. The posts, which are suitable for physically handicapped persons have been identified in Ext.P3 Government Order. But before the Commission commences recruitment, the eligibility criteria may have to be laid down or in some cases, revised or modified. This is a time consuming process. But the Government is taking all earnest efforts to see that minimum 3% vacancies, which have arisen in all the departments in the Government from the year 2004 onwards, will be filled up only by physically handicapped persons. Learned Advocate General further submits that in effecting such appointments, the Government will ensure that the appointments will be effected by maintaining the internal ratio of 1: 1: 1 among the Orthopaedically handicapped, hearing impaired and visually impaired persons. Necessary intimation will be given by the Government to the Commission in this regard and special recruitment from here onwards will adhere to the broad classification amongst the physically handicapped persons and the W.P.(C).NO.37281/07 & Con.cases :: 14 ::
ratio of 1:1:1 among the three broad categories of physically handicapped persons. This submission is also recorded.
14. Though the learned counsel for the petitioners is right in submitting that the re-engagement of physically handicapped persons under Exts.P4 and P5 orders should not result in the internal ratio being violated as such, I refrain from interfering with any of the appointments effected as per Ext.P5 order essentially for two reasons: Firstly, the Government came to issue Ext.P5 order to effect compliance with the directions issued by this court in several judgments. Secondly, the beneficiaries of Ext.P5 are also physically handicapped persons, though they come under a separate category. An interference with such appointments for the purpose of maintaining the internal ratio even among the backlog vacancies would result in serious detriment and hardship to equally deprived category of employees. In the circumstances, I think, it is appropriate that the respondents be directed to take ameliorative measures to redress the grievance of the visually impaired persons, but without affecting the appointment of the other physically handicapped persons who are the beneficiaries of Exts.P4 and P5. W.P.(C).NO.37281/07 & Con.cases :: 15 ::
15. In the result, the Government is directed to take steps to implement the following directions:
(a) The Government will first identify the different posts in Class III, IV, II and I, suitable for appointment of the physically handicapped persons. Though this has now been done in Appendix to Ext.P3 Government Order, it will be appropriate that comprehensive orders are passed identifying the different posts in the different departments, wherein the 3% of the vacancies will necessarily have to be filled up by physically handicapped persons. This direction is being issued taking note of the fact that Ext.P3 Government Order was issued about 10 years back and it will be appropriate that an updating exercise be done for identifying the different posts and making it current for the purpose of special recruitment. The exercise involving identification of the posts shall be done at the earliest, as undertaken by the learned Advocate General and at any rate, within a period of six months from today.
(b) The Government and the Commission shall, in the course of conducting special recruitment, fill up the vacancies to be filled up by physically handicapped persons, in such a manner that the internal ratio, as contemplated by Section 33 of the Act, is maintained. The Government shall ensure that one category of physically handicapped persons does not entertain a grievance against another category of physically handicapped persons. As undertaken by the learned Advocate W.P.(C).NO.37281/07 & Con.cases :: 16 ::
General, orders containing the guidelines to be followed by the Government and the Commission in the manner of such special recruitment shall be issued as early as possible. I refrain from fixing a time limit for this exercise essentially taking note of the submission made by the learned Advocate General that it may not be possible to fix a rigid time for this time consuming part of the exercise.
(c) In filling up the vacancies from 2004 onwards, which is to be done by the Commission, the Government and the Commission shall ensure that the internal ratio of 1:1:1 among the Orthopaedically handicapped, hearing impaired and visually impaired, is maintained.
(d) Of course, in maintaining the ratio, the Government and the Commission would obviously take note of the peculiarities of the duties attached to a post and a possible inability by a particular category of physically handicapped persons to discharge the duties in the said post. The Government is at liberty to keep these features in mind in issuing guidelines in maintaining the internal ratio.
(e) The submission made by the learned Advocate General that all the physically handicapped persons who were provisionally engaged between 15.8.1998 and 15.8.1999 will be re-engaged, is recorded and the Government is directed to see that this is implemented without any dilution.
(f) Insofar as the vacancies up to the year 2003 are concerned, the Government shall take note of the number of vacancies which ought to have been set W.P.(C).NO.37281/07 & Con.cases :: 17 ::
apart for visually impaired and hearing impaired persons amongst the said vacancies up to the year 2003, in maintaining the ratio of 1:1:1 and in making a requisition to the Commission to fill up the vacancies from the year 2004, the Government shall ensure that the claims made by any visually impaired or hearing impaired persons, which otherwise could have been satisfied if the ratio of 1:1:1 is adhered to even against the vacancies up to 2003 are, as far as possible, recouped in the course of appointing physically handicapped persons against the vacancies from 2004 onwards. If this exercise requires adjustment of the vacancies which arise beyond 2008 also, then the same shall also be done, to see that the process of recouping is done as completely as possible.
16. All interim orders shall stand vacated. W.P.(C)No.35134/07
17. The above writ petition has been filed by an Orthopaedically handicapped person, who is an applicant for the post of Junior Health Inspector Grade II and is included in the rank list. The petitioner essentially seeks a direction to appoint him by enforcing Ext.P4 rank list against the vacancy which ought to be reserved for a physically handicapped person. The relief sought for by the petitioner, if granted, would involve a direction to the Government and the Commission to apply the ratio of W.P.(C).NO.37281/07 & Con.cases :: 18 ::
physically handicapped persons against a general recruitment which was undertaken by the Commission. In my view, this would not be appropriate. If the petitioner's turn arises in the course of enforcement of the rank list, obviously he would be entitled to advice and appointment. But, even otherwise, the petitioner would be entitled to be considered for appointment not only to the post of Junior Health Inspector, but to any other post to which he could legitimately apply as being eligible and it is certain that his claim would be considered in the course of the special recruitment which the Government is to undertake as already discussed above.
18. Subject to eligibility, the petitioner obviously would have a right to be considered and it is so declared. W.P.(C)No.4068/08
19. The petitioner is a physically handicapped person, who had worked during the period between 13.8.1998 and 08.10.1998. The petitioner is entitled to re-engagement in terms of Exts.P4 and P5 orders and Ext.P11 Government Order makes it clear that the re-engagement is made applicable to the W.P.(C).NO.37281/07 & Con.cases :: 19 ::
employees in Local Authorities also. Ext.P7 is a representation pending before the 1st respondent.
20. In the result, the 1st respondent is directed to look into Ext.P7 in the light of Ext.P3 Government Order and in the light of the undertaking given by the learned Advocate General and recorded above. Needful shall be done within three months from the date of receipt of a copy of this judgment along with a copy of the writ petition.
W.P.(C)No.2999/08
21. The petitioners are physically handicapped persons with 40% loco motor disability. They are essentially aggrieved by the delay on the part of the Government in taking appropriate steps for special recruitment and that this should be done against the backlog vacancies of 2004 onwards. In my view, the comprehensive directions, which have been issued in W.P.(C)No.37281/07, will take in all the interests of the petitioners herein also. It may not be possible to fix a rigid time for the Government to issue comprehensive guidelines regarding the manner in which the special recruitment is to be conducted. W.P.(C).NO.37281/07 & Con.cases :: 20 ::
W.P.(C)No.10275/08
22. The petitioner, who was a physically handicapped person with 40% Orthopedic Physical disability, is aggrieved by the fact that, though he was engaged on a provisional basis as a Village man between 15.8.1998 and 15.8.1999 as evidenced by Exts.P3 to P5, he is yet to be re-engaged. Ext.P8 comprehensive representation is pending before the Government. In view of the undertaking given by the learned Advocate General, I have no doubt in my mind that the Government will consider the case of the petitioner and issue orders of re-engaging him in service. To enable the Government to do so, the petitioner is directed to submit a comprehensive representation before the Government within one month from the date of receipt of a copy of this judgment along with a copy of the writ petition, in which case, the Government will pass suitable orders within three months thereafter.
W.P.(C)No.6312/08
23. The petitioner, a physically handicapped person, was appointed as an HSA by the Deputy Director of Education as per Ext.P1 order and she discharged her duties between W.P.(C).NO.37281/07 & Con.cases :: 21 ::
15.8.1998 and 15.8.1999. Her claim for appointment was directed to be considered under Ext.P2 judgment and P3 order was passed by the Government requiring the Deputy Director to issue an order of appointment. Though the petitioner has approached the 2nd respondent to receive the order and join duty, she is yet to be given posting orders. Apparently, this was because of the pendency of W.P.(C)No.37281/07.
24. The only direction now required, in the light of the disposal of W.P.(C)No.37281/07, is one to the 2nd respondent to see that the petitioner is given posting orders in the light of Ext.P3 order at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment. It is so directed. W.P.(C)No.8966/08
25. The petitioner a physically handicapped person, who had rendered service as a Lower Division Binder between 7.5.1999 and 22.11.1999, as evidenced by Ext.P3, is entitled for re-engagement and regularization as directed in Ext.P3. Ext.P8 representation is pending before the Government. Taking note of the undertaking given by the learned Advocate General that all persons, who have rendered provisional service during the period W.P.(C).NO.37281/07 & Con.cases :: 22 ::
between 15.8.1998 and 15.8.1999 shall be re-engaged and regularized in service, I direct the 1st respondent to consider and pass appropriate orders on Ext.P8 within a period of one month from the date of receipt of a copy of this judgment. W.P.(C)No.7044/08
26. The petitioner, a physically handicapped person, had rendered provisional service from 2.8.1999 to 27.1.2000 in the Mavelikkara Municipality. The petitioner is entitled to re-
engagement and regularization of service. Taking note of the averments in the writ petition and the fact that the petitioner's claim is justified, the 2nd respondent is directed to see that the petitioner is issued orders of posting in terms of Ext.P5 order within one month from the date of receipt of a copy of this judgment.
W.P.(C)No.6958/08
27. The petitioner is an Orthopaedically handicapped person, having disability in excess of 40%. The petitioner prays for a direction that she be considered for appointment as part- time menial in the Department of Education. The only direction which could be issued in this regard is one to the petitioner to W.P.(C).NO.37281/07 & Con.cases :: 23 ::
approach the Government with a grievance. Accordingly, if the petitioner files a comprehensive representation before the first respondent, it shall be looked into and a suitable decision taken thereon within a period of three months from the date of receipt of a copy of this judgment.
W.P.(C)No.37825/07
28. The petitioner, a post graduate in law, is physically challenged with more than 40% disability. The petitioner is included in a rank list published on 31.12.2005 for the post of Municipal Secretary Grade II. Essentially, the petitioner prays for a direction to the Government and the Commission to apply the ratio available to physically handicapped persons against a rank list published at the end of a general recruitment undertaken by the Commission. The rank list has expired on 31.12.2007. The petitioner cannot seek a direction to apply the ratio to the rank list which has been published by the Commission at the culmination of a general recruitment. If the petitioner's turn comes, then obviously, she is entitled to be considered and it is so declared. But, even otherwise, the petitioner would be entitled as and when a special recruitment is W.P.(C).NO.37281/07 & Con.cases :: 24 ::
undertaken by the Government and the Commission, as already directed in W.P.(C)No.37281/07. The right of the petitioner to be considered is also declared and no further direction is call for in this writ petition.
The writ petitions are disposed of as above.
Sd/-
(V.GIRI) JUDGE sk/ //true copy//