Kerala High Court
All India Differently Abled Federation ... vs Directorate Of Social Justice on 14 June, 2022
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
WP(C) No.13950/2022 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Tuesday, the 14th day of June 2022 / 24th Jyaishta, 1944
WP(C) NO. 13950 OF 2022(S)
PETITIONER:
ALL INDIA DIFFERENTLY ABLED FEDERATION (KERALA STATE COMMITTEE),
C/O. KGO OFFICE, TC 26/590, OOTUKUZHI, THIRUVANANTHAPURAM -695 001,
REPRESENTED BY ITS PRESIDENT K.G. SAJAN, AGED 67 YEARS,
S/O. N. GANGADARAN, RESIDING AT THAMARABHAGAM, TRA 62,
MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM- 695 011.
RESPONDENTS:
1. DIRECTORATE OF SOCIAL JUSTICE, REPRESENTED BY DIRECTOR,
VIKAS BHAVAN, PMG 5TH FLOOR, THIRUVANANTHAPURAM, KERALA- 695 033.
2. DIRECTOR, SHRI CHITHIRA TIRUNAL INSTITUTE FOR
MEDICAL SCIENCE AND TECHNOLOGY, JAI NAGAR, WEST RD,
CHALAKUZHI, THIRUVANANTHAPURAM, KERALA- 695 011.
ADDL. R3 IMPLEADED
3. COMMISSIONER FOR PERSONS WITH DISABILITIES,
MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT,
GOVERNMENT OF INDIA, NEW DELHI.
IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 14/06/2022 IN WPC.
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the 2nd respondent to stay the operation of Exhibit P2
in the interest of justice.
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
SMT.SANDHYA RAJU, Advocate for the petitioner and of SRI.SAJITH KUMAR
V.,Advocate for R2 and of SRI.S.MANU,ASSISTANT SOLICITOR GENERAL FOR
ADDL.R3 the court passed the following:
P.T.O.
WP(C) No.13950/2022 2/7
S. MANIKUMAR, CJ & SHAJI P. CHALY, J
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I.A.No. 1 of 2022
&
W.P.(C). No. 13950 of 2022
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Dated this the 14th day of June, 2022
ORDER
S. Manikumar, CJ I.A.No.1 of 2022 I.A.No.1 of 2022 is filed to receive a registration certificate issued by the Registrar of Societies, certifying that All India Differently Abled Federation, Medical College has been registered under section 12 of Travancore - Cochin Literary, Scientific and Charitable Societies Registration Act, 1955.
We have perused the document and pleased to accept the same as Exhibit P9 in W.P.(C) No.13950 of 2022.
W.P.(C). No. 13950 of 2022
Mr.V.Sajith Kumar - learned counsel appearing for Director, Shri Chitira Thirunal Institute for Medical Science and Technology, WP(C) No.13950/2022 3/7 W.P.(C). No.13950 of 2022 2 Thiruvananthapuram - respondent No.2, submitted that a c ounter affidavit has been filed online touching upon the averments made in Exhibit P6 order dated 7.1.2021 of Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, New Delhi.
2. Going through the contents of Exhibit P6, we find that on the complaint of Shri.Harikumar, Harinilayam, CMCI, Alleppey, Case No.11785/1011/2020 has been registered by the Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, New Delhi, wherein, after considering the averments made in the complaint and the remarks of the 2nd respondent, the Commissioner for Persons with Disabilities has observed that vacancies in the 2 nd respondent institute required to be recalculated:
"31. In the present complaint it is submitted by Complainant and accepted by the Respondent that vacancies for the post of Junior Engineer (Instrumentation). It has been alleged that the Respondent establishment did not reserve seats for PwBDs in the said recruitment. Respondent has submitted that the post of Junior Engineer (Instrumentation) is Group C post and Respondent establishment does not any backlog vacancy for PwBD candidates in Group C category.WP(C) No.13950/2022 4/7 W.P.(C). No.13950 of 2022 3
32. As mentioned above in detail, nature of reservation for PWBDs is not post based but vacancy based, therefore, irrespective of the fact that no backlog of PwBD vacancies is present, Respondent establishment is bound to calculate the vacancies for PwBDs in accordance with DOPT circular dated 15.01.2018.
33. Therefore, this court concludes that not reserving even a single seat for PwBD is violation of Section 34 read with DoPT OMs. This court recommends that the Respondent shall recalculate the vacancies and shall reserve 4% of the vacancies for PWBD candidates. Respondent establishment is recommended to renotify the whole advertisement after calculation of reservation in accordance with Section 34 of RPWD Act 2015 and concerned OMs issued by DoPT."
3. The said order in Case No.11785/1011/2020 has been passed on 7.1.2021 and the impugned notification has been issued on 23 rd February, 2022.
4. Though Mr.V.Sajithkumar - learned counsel for respondent No.2, submitted that after the issuance of the notification, the Association has approached the Institute and the dispute as regards not notifying certain vacancies for PWD backlog has been settled. Taking note of the observations of the Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, New Delhi, it is necessary to hear WP(C) No.13950/2022 5/7 W.P.(C). No.13950 of 2022 4 the views of the above said authority for proper and effective adjudication of the lis i.e., not notifying the vacancies in terms of the statutory provisions and Government Orders issued from time to time.
5. In the said circumstances, in exercise of the powers conferred under Article 226 of the Constitution of India, we deem it fit to implead the Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, New Delhi, as additional respondent No.3 in the instant writ petition.
6. Sri.S.Manu, learned Assistant Solicitor General is directed to take notice on behalf of additional respondent No.3. The writ petitioner is directed to furnish the entire sets of papers to him.
7. As regards the order passed in Case No.11785/1011/2020 dated 7.1.2021 and the observations, Mr.V.Sajithkumar, learned counsel for Director, Shri Chirtira Thirunal Institute for Medical Science and Technology, Thiruvananthapuram - respondent No.2, submitted that the typed sets of papers furnished to him, does not contain the relevant papers from page No.28 onwards. In the above said circumstance that he was incapacitated to provide the response. It it further submitted that after getting necessary copies and report, he would get appropriate instructions from the Institute. WP(C) No.13950/2022 6/7 W.P.(C). No.13950 of 2022 5
8. The counter affidavit stated to be filed online by the 2 nd respondent, be filed, if necessary.
Post on 30th June, 2022.
Sd/-
S. MANIKUMAR, CHIEF JUSTICE Sd/-
SHAJI P. CHALY,
JUDGE
smv
14-06-2022 /True Copy/ Assistant Registrar
WP(C) No.13950/2022 7/7
APPENDIX OF WP(C) 13950/2022
EXHIBIT P2 A COPY OF THE NOTIFICATION ISSUED BY 2ND RESPONDENT
VIDE ADVT. NO.P&A II/472/JSSC/SCTIMST/2022 DATED 23RD FEBRUARY, 2022.
Exhibit P6 A COPY OF THE ORDER OF THE CHIEF COMMISSIONER DATED 7TH JANUARY 2021.
Exhibit P9 A COPY OF THE CERTIFICATE OF REGISTRATION.