Kerala High Court
Ray John Varghese vs State Of Kerala on 1 October, 2001
Equivalent citations: [2002(92)FLR1039]
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K.S. Radhakrishnan, J.
1. The Kerala Public Service Commission (hereinafter called 'the Commission') invited applications for the post of Assistant Motor Vehicle Inspector in the scale of pay of Rs. 1,400-2,300 as per the notification dated 18.7.1995. Qualification prescribed for the post was pass in S.S.L.C. Diploma in Automobile Engineering, two years workshop experience and possession of a driving licence. Several persons including the appellant applied. They were called for a written test and interview. Subsequently rank list was drawn up on 19.9.1998. Appellant was given rank No. 639. 704 persons were listed in the rank list. There are altogether 60 vacancies. Going by the rank list there is no chance for the appellant to get appointment. He therefore submitted a representation, Ext. P2 on 5.10.1998 before the State Government stating that he is a physically handicapped person with 40% disability. Consequently he is entitled to get preference for appointment. He filed Writ Petition, O.P. No. 21755 of 1998 for an early disposal of the representation. That Writ Petition was disposed of on 26.11.1998 with direction to Government to pass appropriate orders. Pursuant to the above judgment, Government rejected the representation stating as follows:
"There is no existing rules/or any direction at Government level to give appointment to the physically handicapped persons who have registered their names with Employment Exchange or who have included in the select of Public Service Commission. Advice of the candidate for appointment will be done by K.P.S.C. on the basis of reservation and as per existing norms and regulations".
Appellant's representation was accordingly rejected. Hence he filed the present Writ Petition.
2. Appellant submits since he is a physically handicapped person with 40% disability he is entitled to get appointment to the post of A.M.V.I. on the basis of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) (in short the Act'). According to him, it is mandatory on the part of the Government to identify posts while appointing persons with disability. Placing reliance on Section 33 counsel submitted that appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disability of which one per cent each shall be reserved for person suffering from blindness or low vision, hearing impairment or locomotor disability or cerebral palsy in the posts in the posts identified for each disability. Learned Government Pleader submitted that the post of A.M.V.I. is not identified by the Government as one which could be reserved for person with disability. He made available Government Order, G.O.(P) No. 20/98P&ARD dated 14.7.1998 by which certain posts have been reserved for physically handicapped persons on the basis of the Act.
3. The Act was enacted by the Parliament so as to give effect to the decisions taken pursuant to the objects and reasons stated at the meeting which as convened at Beijing by the Economic and Social Commission for Asian and Pacific Region which adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and Pacific Region. India was a signatory to the said Proclamation and It was found necessary to enact suitable legislation providing for various matters. It was proposed to provided for the constitution of Co-ordination Committee which would serve as the national focal point on disability matters and facilitate the continuous evolution of comprehensive policy towards solving the problems faced by persons with disabilities. There is also provision for constitution of a Central Executive Committee which would be Chief Executive body of the Central Co-ordination Committee and shall be responsible for carrying out the decisions of the Central Co-ordination Committee. Provision for constitution of a State Co-ordination Committee is also there is the Act. State co-ordination Committee is to be constituted by the State Government.
4. Chapter VI deals with Employment. Section 33 deals with reservation of posts which stipulates that every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% of persons or class of persons with disability of which one per cent each shall be reserved for persons suffering form blindness or low vision, hearing impairment and locomotor disability or cerebral palsy in the posts identified for each disability.
5. Section 32 of the Act provides that appropriate Government shall identify posts in the establishments which can be reserved for persons with disability and at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. We are informed by the Government Pleader that State Government has not so far identified post of A.M.V.I. as per Section 32 of the Act. Since post of A.M.V.I. has not been identified by the State Government appellant cannot be given appointment even though he is a person suffering more than 40% disability. He cannot be appointed on the basis of the Act. This Court in State of Kerala v. Mary Joseph (2001) (3) KLT 26) considered the ambit and scope of the Act.
6. We are of the view unless and until post is identified by the State Government as per Section 32 of the Act claim for appointment cannot be raised by persons like the appellant with more than 40% disability. In the aforesaid circumstances we are of the view no direction can be given as prayed for by the appellant. We fond no reason to entertain this appeal. It is accordingly dismissed.