Kerala High Court
The Union Of India vs R.Rajeev on 7 August, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942
OP (CAT).No.131 OF 2020
AGAINST THE ORDER IN OA 664/2017 DATED 31-07-2019 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF
POSTS, MINISTRY OF COMMUNICATION, NEW DELHI-
110001.
2 THE DIRECTOR GENERAL OF POLICE
DAK BHAVAN, NEW DELHI-110 001.
3 THE CHIEF POST MASTER GENERAL
KERALA CIRCLE, THIRUVANANTHAPURAM-695 033.
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENT/APPELLANT:
1 R.RAJEEV,AGED 36 YEARS,
S/O. RAJAYYAN, POSTAL ASSISTANT, AMARAVILA PO,
THIRUVANANTHAPURAM-695 122, RESIDING AT JEEV NIVAS,
RAILWAY STATION ROAD, INCHIVILA, PARASSALA PO,
THIRUVANANTHAPURAM-695 502.
2 VENUGOPALAN O.R.,AGED 47 YEARS
POSTAL ASSISTANT, SUB POST MASTER, CALICUT AIRPORT,
MALAPPURAM-673 647 RESIDING AT OLIKKARA HOUSE, CALICUT
UNIVERSITY P.O., MALAPPURAM, 673 635.
R1-2 BY ADV. SRI.M.R.HARIRAJ
R1-2 BY ADV. SMT.THANUJA ROSHAN
R1-2 BY ADV. SMT.GANGA A.SANKAR
R1-2 BY ADV. SHRI.VISWAJITH C.K
R1-2 BY ADV. SHRI.CHACKOCHEN VITHAYATHIL
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 07-08-2020, THE
COURT ON 07-08-2020 DELIVERED THE FOLLOWING:
O.P.(CAT)No.131/2020 2
JUDGMENT
Dated this the 11th day of August 2020 Gopinath, J.
This Original Petition (CAT) is filed challenging the order dated 31.07.2019 in O.A.No.664/2017 on the file of the Central Administrative Tribunal Ernakulam Bench. That Original Application was filed by the respondents herein seeking an order to the effect that they were entitled to be considered for the carry forward vacancies reserved for those with handicaps in categories other than those with an orthopaedic handicap. The respondents are persons with orthopaedic handicaps.
2. Three posts were reserved for the appointment of persons with disabilities in terms of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the 1995 Act' for the sake of brevity). These three posts were for (i) persons with blindness or low vision;(ii) persons with hearing impairment; and (iii) for those having a locomotor disability (orthopaedic handicap). Though the aforesaid Act of 1995 has been repealed by The Rights of Persons with Disabilities Act, 2016, the claim of the respondents is liable to be considered in terms of the 1995 Act. The Tribunal has found, on facts that three posts of Post Master Gr.I were reserved for appointment of persons with disabilities. In the limited departmental O.P.(CAT)No.131/2020 3 competitive examination conducted in the year 2013, the respondents had been declared successful. As only one amongst three vacancies were reserved for persons with orthopaedic handicaps, the respondents did not get selected as there was one person, who was ranked above them, who got selected in the one post reserved for the Orthopedically handicapped. As the other two vacancies were for persons with visual handicap and hearing handicap, these vacancies were unfilled and carried forward to the next recruitment year. The respondents were qualified in the limited departmental competitive examination in the year 2014 as well and amongst the candidates, who appeared, the present respondents were only two persons, who qualified again in the category of those having Orthopedic handicaps. The Tribunal relied on provisions of paragraph 16 of O.M.No.36035/3/2004-Estt(Res) of Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training dated, 29.12.2005 and found that in the absence of candidates of the specified handicap in a particular year, such vacancies have to be carried forward and if in the next year also such vacancy cannot be filled by a suitable person having the specified handicap, then such vacancies can be offered to persons having a handicap or disability other than the specified handicap or disability.
3. The learned Asst. Solicitor General appearing for the petitioners would vehemently contend on the basis of Annexure-A9 order issued by the Chief Commissioner for Persons with Disabilities that the said authority had found that the respondents had no claim for being appointed against vacancies reserved for other categories of handicapped persons and that the vacancies had to be carried forward. He submits that the Tribunal was therefore not justified in O.P.(CAT)No.131/2020 4 granting the reliefs sought for in the Original Application as the competent authority under the 1995 Act had rejected the claim of the respondents. Sri. M.R. Hariraj, learned counsel appearing for the respondents would submit that the impugned order of the Central Administrative Tribunal does not suffer from any infirmity and that the same was completely justified in terms of office memorandum referred to in the order of the Tribunal.
4. Having heard the learned Counsel on both sides and having perused the records and the provisions of the 1995 Act we are of the view that this Original Petition is only to be dismissed. Section 36 of the 1995 Act reads as follows:-
"36. Vacancies not filled up to be carried forward:- Where in any recruitment year any 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 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: (Emphasis is supplied) Provided 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."
A reading of aforesaid provision clearly shows that in the first instance, if persons with specified handicap/disability are not available, the vacancies have to be carried forward to the next recruitment year and if again the persons with handicap/disability are not available, those vacancies may first be filled by interchange among persons with other disabilities. Only if no person with any O.P.(CAT)No.131/2020 5 of the specified categories of handicap/disability the vacancy shall be filled up by persons other than persons with disabilities.
5. The provisions of the O.M referred to by the Tribunal only reiterates the statutory position. On the application of the provisions of Section 36 to the facts of this case, we find that the respondents were completely justified in claiming the vacancies reserved for persons with handicap/disability other than Orthopedic handicap/disability since those vacancies were carried forward from the 2013 recruitment year and even in the 2014 recruitment year there were no persons, with the specified category of handicap/disability. Thus, the Tribunal was right in declaring that the respondents were entitled to be appointed against those vacancies in the recruitment year 2014.
6. We find no legal error or jurisdictional infirmity in the order of the Tribunal warranting interference at the hands of this Court under Article 227 of the Constitution of India. The Original Petition (CAT) fails and it is accordingly dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
acd JUDGE
O.P.(CAT)No.131/2020 6
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL
APPLICATION NO.664/17 WITH
ANNEXURES (PAGES 13-66).
ANNEXURE (A1) TRUE COPY OF THE DEPARTMENT OF
POSTS SENIOR POSTMASTER (GR.B,
GAZETTED), POSTMASTER (GRADE III &
II GROUP B NON GAZETTED) AND
POSTMASTER (GRADE I GROUP C NON
GAZETTED) RECRUITMENT RULES, 2010
(HEREAFTER CALLED THE RULES).
ANNEXURE(A2) TRUE COPY OF THE ORDER ST/3-1/PM
GRADE I DATED 26.2.2015.
ANNEXURE(A3) TRUE COPY OF THE LETTER ST/3-1/PM
GRADE I DATED 24.3.2015.
ANNEXURE(A4) TRUE COPY OF THE ORDER DATED
1.6.2015, IN CASE
NO.2166/1024/2014 ON THE FILES OF
THE CHIEF COMMISSIONER FOR PERSONS
WITH DISABILITIES.
ANNEXURE(A5) TRUE COPY OF THE LETTER
NO.34013/09/2013 DE DATED
17.6.2015.
ANNEXURE(A6) TRUE COPY OF THE LETTER ST/3-1/PM
GRADE I DATED 3.7.2015.
ANNEXURE(A7) TRUE COPY OF THE ORDER NO.A-
34013/09/2013 DE DATED 29.7.2015.
ANNEXURE (A8) TRUE COPY OF THE LETTER ST/3-1/PM
GRADE I DATED 2.2.2016.
ANNEXURE (A9) TRUE COPY OF THE ORDER DATED
29.3.2017 IN CASE
NO.5513/1021/2015/R91 OF THE CHIEF
COMMISSIONER FOR PERSONS WITH
DISABILITIES.
ANNEXURE(A10) TRUE COPY OF THE OM 36035/3/2004-
ESTT(REZ) DATED 29.12.2005.
ANNEXURE(A11) TRUE COPY OF THE LIST OF
CANDIDATES WHO HAVE APPEARED IN
O.P.(CAT)No.131/2020 7
THE LDCE OF 20.7.2014.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT
IN OA NO.664/2017, BEFORE CAT,
ERNAKULAM BENCH FILED BY THE
RESPONDENT (PAGES 67-161).
ANNEXURE(R1) TRUE COPY OF THE COMPLAINT DATED
9.11.2015 FILED BY THE APPLICANTS
BEFORE THE HON'BLE COURT OF CCPWD.
ANNEXURE(R2) TRUE COPY OF THE LETTER
NO.5513/1021/2015 DATED 1.1.2016.
ANNEXURE(R3) TRUE COPY OF THE REJOINDER DATED
10.2.2016.
ANNEXURE(R4) TRUE COPY OF THE NOTICE FOR
HEARING DATED 12.7.2016.
ANNEXURE(R5) TRUE COPY OF THE SUBMISSION DATED
17.8.2016.
ANNEXURE(R6) TRUE COPY OF THE RECORD OF
PROCEEDINGS DATED 5.10.2016.
ANNEXURE(R7) TRUE COPY OF THE DETAILED POINT-
WISE REPLY SUBMITTED BY THE
RESPONDENTS VIDE LETTER DATED
8.11.2016.
ANNEXURE(R8) TRUE COPY OF THE WRITTEN
SUBMISSION DATED 29.1.2016
SUBMITTED TO THE HON'BLE COURT OF
CCPWD.
ANNEXURE(R9) TRUE COPY OF THE NOTIFICATION
NO.16-70/2004-DD DATED 29.7.2013
OF THE MINISTRY OF SOCIAL JUSTICE
OF EMPOWERMENT.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
31.7.2019 IN OA 664/2017 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH.