Kerala High Court
Dr.S.Thusharlal vs State Of Kerala on 27 October, 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.
TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942
OP(KAT).No.57 OF 2019
AGAINST THE ORDER IN OA 87/2018 DATED 04-01-2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
DR.S.THUSHARLAL,
AGED 34 YEARS
D/O .K. JYOTHILAL, SEVA SADANAM,
PAROTTUKONAM, NALANCHIRA P.O.,
THIRUVANANTHAPURAM - 695 015.
PHONE. 9400485377.
BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.S.VIBHEESHANAN
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.MUHAMMED IBRAHIM ABDUL SAMAD
SRI.SABU PULLAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
AYUSH DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
OP(KAT) No.57/2019
-:2:-
2 THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION,
AROGYA BHAVAN, M.G. ROAD,
THIRUVANANTHAPURAM - 695 004.
3 THE SECRETARY,
KERALA PUBLIC SERVICE COMMISSION,
PATTOM P.O.,
THIRUVANANTHAPURAM - 695 004.
SRI. P.N. SANTHOSH-SR. G.P.
SRI.P.C.SASIDHARAN, SC, PSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 21-10-2020, THE COURT ON 27-10-2020
DELIVERED THE FOLLOWING:
OP(KAT) No.57/2019
-:3:-
JUDGMENT
Dated this the 27th day of October, 2020 Shaffique, J.
The applicant in OA No.87/2018 of the Kerala Administrative Tribunal has preferred this OP challenging order dated 4/1/2019 by which the application had been dismissed.
2. The petitioner is one among the candidates who was in the ranked list for appointment to the post of Lecturer in Rachana Sharir which is redesignated as Assistant Professor. She was the 3rd rank holder. She received an advice from the Kerala Public Service Commission (for short 'KPSC') on 12/10/2017 (Annexure A2). But no appointment was given. Though she filed certain representations, same was not considered and therefore, direction was sought to the Director of Ayurveda Medical Education to issue necessary order based on the appointment order issued by the KPSC. The 2nd respondent took up a contention that the KPSC had made two advices on 12/10/2017. One is that of the petitioner against Open Category (OC) turn and OP(KAT) No.57/2019 -:4:- a second communication was issued stating that there are no candidates available against the differently abled category of low vision. Since two advices were made against one vacancy, clarification was sought for by the 2 nd respondent and accordingly KPSC has directed the department not to issue appointment orders as the vacancy is reserved for persons with disabilities as per the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is further stated that after publication of the ranked list, two vacancies were reported as per letter dated 1/2/2016. One Madan Kumar was appointed in the OC turn and the 2 nd turn was for scheduled caste candidate, but no candidate was available. As per letter dated 21/11/2016, yet another vacancy was reported. No candidate was available against Muslim community turn. Insofar as the petitioner was advised against a vacancy available for differently abled and the advice was wrong, the petitioner is not entitled for any relief. It is also submitted that total number of strength in the cadre is 6 of which 3 vacancies remained unfilled, one that of a scheduled caste, one that of Muslim and one that of differently abled low vision. The KPSC in their reply statement has OP(KAT) No.57/2019 -:5:- also supported the aforesaid stand. The Tribunal having found that the advice had been issued by way of a mistake, the petitioner cannot stake any claim in respect of a mistaken advice.
3. Learned senior counsel for the petitioner however would contend that as per Annexure A10 Government Order dated 6/8/2005, to the post of Lecturer, Anatomy, low vision categories are not reserved. Only person with locomotor disability and partially deaf are entitled for the said post and therefore, in the absence of any such candidates, their turn should be given to open category.
4. We do not think that the aforesaid submission can be justified. 3% seats are reserved for differently abled candidates and if that post is not demarcated for a low vision candidate, there should be a category change in terms with Section 36 of the Act or at a later stage, in the absence of any candidates, it could be converted to open category. But that situation has not arisen in the present ranked list.
5. Under such circumstances, petitioner cannot demand that she should be accommodated in the slot meant for differently abled person. The Tribunal was therefore justified in OP(KAT) No.57/2019 -:6:- dismissing the OA. We do not find any ground to interfere with the said order.
Original petition is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp True Copy JUDGE
PS to Judge
OP(KAT) No.57/2019
-:7:-
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER DATED 4-1-2019
IN O.A. NO.87/2018.
EXHIBIT P2 TRUE COPY OF THE O.A. NO.87/2018.
ANNEXURE A1 TRUE COPY OF PSC RANKED LIST
NO.1140/2014/SSVI UNDER CATEGORY
NO.006/2012
ANNEXURE A2 TRUE COPY OF P.S.C. ADVICE
NO.RIC(2)4380/14GW DATED 12-10-2017 ANNEXURE A3 TRUE COPY OF APPOINTMENT CHARD NO.RIC(2)4380/14GW CATEGORY NO.006/2012 ANNEXURE A5 TRUE COPY OF REPRESENTATION DATED 20/11/2017 TO THE 2ND RESPONDENT ANNEXURE A6 TRUE COPY OF LETTER NO.4523/E1/2016/DAME DATED 17/6/2017 OF THE 2ND RESPONDENT ANNEXURE A7 TRUE COPY OF REPRESENTATION DATED 26/12/2017 TO THE 2ND RESPONDENT ANNEXURE A8 TRUE COPY OF REPRESENTATION DATED 12/1/2018 TO THE PUBLIC SERVICE COMMISSION.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT IN O.A. NO.87/2018.
ANNEXURE R2(A) TRUE COPY OF ADVICE DATED 12.10.17 ANNEXURE R2(B) TRUE COPY OF LETTER DATED 12.10.17 OP(KAT) No.57/2019 -:8:- ANNEXURE R2 (C) TRUE COPY OF LETTER DATED 14.11.17 ANNEXURE R2(D) TRUE COPY OF LETTER DATED 20.12.17 ANNEXURE R2(E) TRUE COPY OF LETTER DATED 21.02.18 ANNEXURE R2(F) TRUE COPY OF LETTER DATED 01.02.16 ANNEXURE R2(G) TRUE COPY OF LETTER DATED 24.02.16 ANNEXURE R2(H) TRUE COPY OF LETTER DATED 21.11.16 ANNEXURE R2(I) TRUE COPY OF LETTER DATED 21.01.17 ANNEXURE R2(J) TRUE COPY OF LETTER DATED 17.06.17 EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN O.A NO.87/2018. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER.
ANNEXURE A9 TRUE COPY OF THE FORM OF PROFORMA FOR REPORTING VACANCIES BY THE KERALA PUBLIC SERVICE COMMISSION VIDE G.O.(P) NO.28/92/P AND ARD DATED 18/9/1992 ANNEXURE A10 TRUE COPY OF THE G.O.(P) NO.119/2205/SWD DATED 6/8/2005 ANNEXURE A11 TRUE COPY OF THE G.O.(P) NO.8/17/SWD DATED 6/5/2017 EXHIBIT P7 TRUE COPY OF THE ADDITIONAL REJOINDER FILED BY THE PETITIONER.
ANNEXURE A12 TRUE COPY O F THE ROTATION CHART OF THE KERLA P.S.C OP(KAT) No.57/2019 -:9:- ANNEXURE A13 TRUE COPY OF THE RELEVANT PAGES OF THE SYLLABUS OF BAMS COURSE (RACHANA SHARIR) OF THE UNIVERSITY OF KERALA EXHIBIT P8 TRUE COPY OF THE M.A.NO.434/2018 IN O.A.NO.87/2018.
ANNEXURE MA1 TRUE COPY OF SHOW CAUSE NOTICE NO.R1.C(2)4380/14/G.W DATED 21/02/2018 ISSUED BY THE KERALA P.S.C. ANNEXURE MA2 TRUE COPY OF APPOINTMENT CHART SHOWING THE DATE OF ADVICE AS 16/01/2017 OF THE P.S.C. UNDER CATEGORY NO.006/2012 ANNEXURE MA3 TRUE COPY OF THE LETTER NO.E1/4523/2016/DAME DATED 14/11/2017 OF THE 2ND RESPONDENT DIRECTOR OF AYURVEDA MEDICAL EDUCATION EXHIBIT P9 TRUE COPY OF LETTER NO.R1F(2)4380/14/GW DATED 4.5.2019 GIVEN BY THE 3RD RESPONDENT TO THE PETITIONER