District Officer vs Saritha S. Babu on 19 May, 2025

[Cites 14, Cited by 0]

Kerala High Court

District Officer vs Saritha S. Babu on 19 May, 2025

W.A. No.1731 of 2014 is filed by the petitioner and W.A. No. 225 of 2015 is filed by respondents 2 and 3 in W.P.(C) No.7932 of 2014, challenging the judgment dated 09.10.2014 passed by the learned Single Judge in that writ petition. Since the issue involved in both these writ appeals are one and the same, they are being heard together and disposed of by this common judgment. For convenience, the parties are hereinafter referred in this judgment in their status as they were in the writ petition, unless otherwise stated.

2. The case of the petitioner is that she applied for the post of Clerk/Cashier in the District Co-operative Bank, Thiruvananthapuram. After finalisation of the selection process, Ext.P1 rank list under direct recruitment was published by the 3 rd respondent Kerala Public Service Commission ('KPSC' in short) on 31.05.2010. Thereafter Ext.P2 letter dated 21.01.2012 was issued by the 2nd respondent District officer of KPSC directing her to produce documents to include her in the special 3% reservation 6 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 quota for physically handicapped candidates. By Ext.P3 addendum notification dated 27.12.2012 a separate list of physically handicapped candidates was appended to the rank list. The petitioner is suffering from 40% orthopaedic disability. In Ext.P3, the physically handicapped candidates are sub-categorised as (1) blind/partially blind, (2) deaf, and (3) orthopedically handicapped. The petitioner is the 2nd rank holder in the category of orthopedically handicapped. The rotation of physically handicapped candidates is 33, 66 and 99. Another rank list was published by the KPSC for the employees working in the Society for their promotion under the Society quota. In the said list there were no physically handicapped candidates. In prior occasions, if no physically handicapped candidates were enlisted in the Society quota, the physically handicapped candidates from the main list were considered and given appointments. As per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('the Disabilities Act' in short) also reservation of 3% of vacancies is mandated for disabled candidates. In Section 80(5) of the Kerala State Co-operative 7 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 Societies Act, 1969, 3% of the total posts of employees of every Society shall be reserved for physically handicapped persons having disability of 40% or above. Even after advising 70 candidates from Ext.P1 list, no physically handicapped candidate is considered for appointment. In the absence of blind/partially blind candidates and deaf candidates in the list, the KPSC ought to have appointed candidates from the orthopedically handicapped persons from Ext.P3 in which the petitioner is the 2nd rank holder. Though the petitioner approached the respondents on several occasions with this request, no fruitful result followed. She filed Ext.P6 representation dated 01.03.2014 before the 2nd and 4th respondents in which also no action was taken. With these averments, the petitioner filed the writ petition under Article 226 of the Constitution of India seeking the following reliefs:

"(i) Issue a writ in the nature of mandamus or any other appropriate writ order or direction directing the 2nd respondent to issue advise memo for the appointment of the petitioner from Ext.P3 rank list appended to Ext.P1 rank list with immediate effect.

(ii) Issue a writ in the nature of mandamus or any other appropriate writ order or direction directing the 4th 8 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 respondent to take necessary steps for the appointment of petitioner from the list of Society Quota (List No.2), from the main List of Ext.P1 allotted to physically handicapped candidates if the petitioner is not appointed by the 2 nd respondent in time.

(iii) Issue a writ in the nature of mandamus or any other appropriate writ order or direction directing the 2nd and 4th respondents to pass appropriate orders in Ext.P6 representation within time limit."

3. The respondents 2 and 3 filed a counter affidavit dated 31.05.2014 in the writ petition producing there with Ext.R2(a) document. Paragraphs 6 to 10 of that counter affidavit read thus:

"6. As per rules of Rotation and Reservation, 3 turns are allotted for PH candidates (33,66,99) ie., for Blind, Deaf and Ortho categories respectively. In part I (Direct Recruitment) 2 turns have arisen for PH (ie 33rd & 66th) and these vacancies have been kept apart for PH candidates. Since Blind category was not eligible for this post, that turn (33rd ) was passed over to Deaf and 66th turn (originally for Deaf) was also kept apart for deaf candidates. Since Deaf candidates were not available in the list, these turns are to be filled up from next Ranked List. The turn earmarked for PH (Ortho) category (99) has not arised yet.

7. Section 36 of the Disabilities (Equal opportunities, protection of Rights and full participation) Act 1995 states that when a vacancy under section 33 cannot be filled up due 9 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 to non-availability of a suitable person with disability, or for any other, sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.

8. In terms of the Rules Commission issued Circular No. 3/2013. A true copy of the Circular No. 3 of 2013 is produced herewith and marked as Ext.R2(a). As per the circular, there is no need to renotify the vacancies as and when a particular PH category is not available in the Ranked List. When candidates are advised to 3% vacancies allotted for PH candidates, and if a candidate from a particular PH category is not available to be advised in that turn, that vacancy is to be kept pending and it is to be noted in the register as "vacancy pending due to non-availability of PH candidate and to be advised from next Ranked List. When the next Ranked List come into effect, candidates from the particular PH category is to be advised against the pending vacancies. If a candidate from a particular PH category is not available in the present Ranked List also, vacancy reserved for that PH category is to be passed over to the next PH category as per rules. If candidates belonging to any of the PH categories are not available in the present Ranked List also, that vacancy is 10 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 to be filled up by advising a candidate other than a candidate with disability.

9. From the above rules in force, it is clear that the Commission have acted in accordance with the existing rules and the vacancies kept apart for the PH (Deaf) category cannot be made available to the PH (Ortho) category as alleged by the petitioner. Therefore the argument of the petitioner that PH-Ortho candidates are to be advised in the pending PH turns cannot be taken into account.

10. Another Averment of the petitioner is that as no candidates belonging to PH categories are available in the List II (Society category), vacancies reserved for PH categories from society category are to be filled up by advising PH candidates from the List I Direct Recruitment. In List II (Society Quota) of the PH Ranked List, for the above post there are no eligible PH candidates in (deaf/ortho) categories. As such 2 vacancies for PH (Deaf) have been kept apart, In List II due to non-availability of eligible PH candidates. Vacancies for PH category belonging to society quota cannot be filled up by the PH categories from the List I (Direct Recruitment) as per the existing rules. A total number of 89 candidates have been advised from part I (Direct Recruitment) so far. Due to non availability of PH candidates, 2 vacancies from Part I are kept apart for PH (Deaf Category)".

4. By the impugned judgment dated 09.10.2014, the learned Single Judge disposed of the writ petition with certain directions 11 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 and observations. By relying on the judgment of this Court in Jayaprakash v. Joint Registrar of Co-operative Societies [2013 (4) KLT 788] which was one rendered based on the judgment of the Apex Court in Government of India v. Ravi Prakash Gupta [(2010) 7 SCC 626] and Union of India v. National Federation of the Blind [2013 (4) ILR Kerala 279] the learned Single Judge held that adjustment between categories is permitted by the legislation and an adjustment made cannot hold good for all time in circumstance of there being no candidate in that category. If a candidate from that category also is not available, then a further category change shall be made to the third category. Only if no candidate is available in that category also, can the vacancy be kept vacant, and carried forward. The learned Single Judge found that the statute does not restrict the category change to the first instance alone and the legislative intention is to provide reservation to the disabled in either of the categories. Hence, from the 3% vacancies reserved in the present 100-point roster 33rd should have been filled up with physically handicapped; since they are the only persons with disability 12 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 figuring in the rank list. Paragraphs 14 and 15 of the impugned judgment read thus:

"14. The principle enunciated by the Hon'ble Supreme Court in the aforecited decisions, would be equally applicable herein. True the vacancy identified for the blind in the present 100 point roster is said to be conceded to the deaf. Thus making the first two vacancies reserved for the category of deaf persons. Admittedly there is no deaf person available in the rank list and there are two persons with physical handicap, available in the rank list to satisfy the legislative mandate of reservation, to disabled persons. Necessarily the post reserved from those set apart for direct recruitment would have to be filled up by the physically handicapped persons to ensure implementation of such legislative command of reservation. Adjustment between categories is permitted by the legislation and an adjustment made cannot hold good for all time in circumstance of there being no candidate in that category. If candidate from that category also is not available, then a further category change shall be made to the third category. Only if no candidate is available in that category also, can the vacancy be kept vacant, and carried forward. The statute does not restrict the category change to the first instance alone and the legislative intention is to provide reservation to the disabled in either of the categories. Hence, from the 3% vacancies reserved in the present 100 point roster, 33rd should have been_filled up with 13 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 physically handicapped; since they are the only persons with disability figuring in the rank list.

15. Merely for reason that one of the categories alone rank in the list, there can be no denial of appointment. If the physically handicapped are appointed in any year, to all the three reserved vacancies and in the subsequent year, there exists hearing impaired candidates, along with physically handicapped candidates, then all the vacancies will have to be conceded to the deaf, for reason of the orthopaedically handicapped having been granted appointment in the previous year. A categorization permitted within the mandate of reservation cannot work itself in a manner destructive of the reservation as such. This would ensure reservation to the disabled as envisioned by the legislature, which vision cannot be defeated merely on the working of a system devised for implementation of the legislative command".

5. Having made the above observations, the learned Single Judge did not issue any positive direction to appoint the persons from Ext.P3 rank list only for the reason that KPSC has issued a fresh notification calling for applications from disabled candidates specifically 'hearing impaired' by a notification dated 15.03.2014. By relying on Jayaprakash [2013 (4) KLT 788] the learned Single Judge found that the identification of the 33rd, 66th and 99th vacancies for reservation of the disabled candidates would not be 14 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 proper and the 1st, 34th and 67th vacancies would have to be reserved in a 100 point roster.

6. Aggrieved by not issuing a specific direction to fill up the 33rd vacancy from the physically handicapped persons such as the petitioner, she filed W.A. No.1731 of 2014. Aggrieved by the observations in paragraphs 15 to 17 and 19 of the judgment, the KPSC filed W.A. No.225 of 2015.

7. Heard the learned Standing Counsel for the appellants in W.A. No. 225 of 2015, the learned counsel for the appellant in W.A. No.1731 of 2014, the learned Senior Government Pleader and the learned Standing Counsel for the District Co-operative Bank.

8. The learned counsel for the appellant in W.A No.1731 of 2014 as well as the learned Standing Counsel for the KPSC addressed arguments reiterating their stand taken before the learned Single Judge. The learned Government Pleader also supported the KPSC as far as the observations made in paragraphs 14 and 15 of the impugned judgment.

9. As per Section 33 of the Disabilities Act, every appropriate Government shall appoint in every establishment such percentage 15 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 of vacancies not less than 3% for persons or class of persons with disability of which 1% each shall be reserved for persons suffering from (i) blindness, or low vision; (ii) hearing impairment, and, (iii) locomotor disability or cerebral palsy, in the post identified for each disability. The proviso to the Section says that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of that Section.

10. As per Section 36 of the Disabilities Act, where in any recruitment year any vacancy under Section 33 cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also a suitable person with a disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer shall fill up the 16 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 vacancy by appointment of a person, other than a person with disability. The proviso to the said Section says that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate government.

11. In the selection process in which the petitioner has participated, the 33rd and 66th turn alone have arisen. They are reserved for the category of persons suffering from blindness and hearing impairment respectively. The petitioner falls under the 3rd category i.e, persons suffering from a locomotor disability. Her turn will arise only if a vacancy has arisen for the 99th slot. Since the blind category was not available to be filled up in the 33 rd turn, the PSC passed over to the hearing impairment category in the 66th turn. Since hearing impairment candidate was also not available, the 33rd and 66th turn are carried forward to the succeeding recruitment year. The claim of the petitioner is that the persons included in the category of physically challenged under the category of locomotor disability ought to have been appointed 17 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 under the 33rd and 66th turn by interchanging the categories, in the current recruitment year itself.

12. The findings in the impugned judgment of the learned Single Judge can be divided into two parts. In the first part the learned Single Judge deals with the interchanging of one category of disability with another category in the current recruitment year itself and by relying on the judgment of this Court in Jayaprakash [2013 (4) KLT 788] held that when a disabled candidate in the first category is not available, then the person from any of the next category available has to be appointed to that slot by interchanging the categories. It was found by the learned Single Judge that if such interchanging was not permitted, the legislative intention of granting reservation to a disabled candidate could not be achieved. In the second part of the judgment, the learned Single Judge ventured to answer an issue regarding the slot that has to be reserved for the disabled candidates. By noticing the official memorandum issued by the Government of India as to how roasters have to be maintained in effecting reservation, the learned Single Judge held that the 1st, 34th and 67th vacancies 18 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 would have to be reserved in a 100-point roster.

13. The issue that came up for consideration in Jayaprakash [2013 (4) KLT 788] is a selection process that was carried out in a Co-operative Society without reserving the 3% entitled to the disabled in view of the Disabilities Act and Section 80(5) of the Kerala Co-operative Societies Act, 1969. In that case, the respondent Society took a stand that the 3% reservation, though mandatory, the post to which it has to be applied can be decided only by the employer Society. By noticing Section 80(5) of the Kerala Co-operative Societies Act, the learned Single Judge held in Jayaprakash [2013 (4) KLT 788] that it is mandatory to reserve 3% of total cadre strength for physically handicapped persons where the total posts available is more than

10. However, it is pertinent to note that in Jayaprakash [2013 (4) KLT 788], the learned Single Judge did not consider Section 36 of the Disabilities Act.

14. As noticed hereinbefore, as per Section 36 of the Disabilities Act, if any vacancy under Section 33 cannot be filled up due to non-availability of a suitable person with disability or for 19 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and only if in the succeeding recruitment year also a suitable person with a disability is not available, the interchanging of three categories is permitted. It is true that if in the succeeding recruitment year also no person with disability is available, the employer was permitted to fill up the vacancy by appointment of a person other than a person with disability. The learned Single Judge took a view that if no suitable disabled person was available in the succeeding recruitment year also, then the post would go to a general category candidate and that it is against the intention of the legislature. But viewed from another angle one can notice that the intention of the legislature in directing carry forward of the post reserved for a particular category of disabled candidate to the next selection year was intended to give more fairness and to do justice to a particular category of disabled candidate who would have probably qualified to apply for the post in the next recruitment year. If in the current recruitment year itself that post was interchanged with the other category of disabled candidates, the interest of that particular 20 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 category of disabled candidates will not be protected as the person who would be qualified in the next recruitment year will lose the post which ought to have been there due to nonavailability of the suitable candidate and being filled by interchanging of category. Moreover, as said above, the learned Single Judge did not consider the impact of Section 36 of the Disabilities Act in its proper perspective while passing the judgment in Jayaprakash [2013 (4) KLT 788] as well as while passing the impugned judgment. When Section 36 is permitted to stand, without holding that provision as ultra vires or without striking down that provision, a finding cannot be given against the same. No such finding was arrived at in Jayaprakash [2013 (4) KLT 788] or in other words, the said aspect was not considered by the learned Single Judge, since a pleading to that effect is conspicuously absent in the writ petition.

15. In such circumstances, we hold that the observation made by the learned Single Judge regarding interchanging of one category of disability with another category of disability in the current selection year itself is incorrect as it is against the 21 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 statutory provision under Section 36 of the Disabilities Act.

16. While coming to the findings made by the learned Single Judge in para 19 of the impugned judgment with regard to the reservation of 1st, 34th and 67th vacancies concerned, it was made with an intention to secure fair representation to the disabled in the cadre, especially noting the situation of total cadre strength in a particular institution as just 10 and above. Though in W.A. No.225 of 2015 the KPSC challenged this observation of the learned Single Judge, during the course of arguments, the learned Senior Government Pleader made available for the perusal of this Court the order dated 06.05.2017 by the Government wherein on the basis of various judgments of the Apex Court and on the basis of the opinion of the KPSC, the 100 point reservation roster in the Government, Semi Government Institutions, Self-financing institutions, universities, Public Service Enterprises and also the institution receiving a grant from the Government is changed as 1, 34 and 67 at the place of 33, 66, and 99 with effect from 07.02.1996. Similarly, the learned Senior Government Pleader made available another order dated 31.10.2019 of the 22 WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 Government whereby the total reservation of disabled candidates was enhanced to 4% from 3% in view of the provisions under the Rights of Persons with Disabilities Act, 2016, and the roster was fixed as 1, 26, 51 and 76. By that order the system of granting grace marks to the disabled candidate was stopped by the Government and the expert committee constituted under Section 33 of the Rights of Persons with Disabilities Act, 2016, was entrusted to identify the disabled categories which can be included in the additional 1% posts reserved for disabled candidates. In view of the aforesaid two Government orders, the observation of the learned Single Judge made in para 19 of the impugned judgment is given effect by the Government. Hence no interference is needed to the findings made in para 19 of the impugned judgment.

17. From the above discussion, W.A No.1731 of 2014 is liable to be dismissed and W.A. No.225 of 2015 is to be allowed in part.

In the result, W.A No.1731 of 2014 is dismissed and W.A No.225 of 2015 is allowed in part by setting aside the findings made in paragraphs 15, 16 and 17 of the impugned judgment. 23

WA No.1731 of 2014 and 2025:KER:33857 WA No.225 of 2015 Considering the nature of dispute, the parties are directed to bear their respective costs.

Sd/-

ANIL K.NARENDRAN, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE sks

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