Kerala High Court
Krishnaiyer.H vs The Secretary To Government 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(KAT).No.167 OF 2020
AGAINST THE ORDER IN OA 1950/2019 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
KRISHNAIYER.H
AGED 47 YEARS
S/O.P.HARIHARAIYER, T.C.20/2968, SINGLE STREET,
KARAMANA P.O., THIRUVANANTHAPURAM-695 002.
BY ADVS.
SRI.S.MOHAMMED AL RAFI
SRI.J.M.DEEPAK
RESPONDENTS/RESPONDENTS:
1 THE SECRETARY TO GOVERNMENT
HIGHER EDUCATION DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY THE SECRETARY, PATTOM P.O.,
THIRUVANANTHAPURAM-695 004.
3 STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF SOCIAL JUSTICE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
4 THE DIRECTOR, DIRECTORATE OF COLLEGIATE EDUCATION,
6TH FLOOR, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695 033.
BY ADVS.SRI. T. RAJASEKHARAN NAIR-SR. G.P.,
SRI. P.C. SASIDHARAN -S.C.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 29-07-2020, THE COURT ON 07-08-2020 DELIVERED THE
FOLLOWING:
OP(KAT) No.167/2020
-:2:-
JUDGMENT
Dated this the 7th day of August, 2020 Shaffique, J.
A differently abled person handicapped with bilateral sensational hearing loss which is assessed at 71% permanent disability applied for the selection to the post of Supporting Artist in Mridangam for dance (Kerala Natanam) pursuant to notification dated 10/8/2015 in Category No.212/2015 issued by the Kerala Public Service Commission (KPSC). 3% of the vacancies was reserved for differently abled candidates. An addendum was published stating that differently abled candidates (hearing impairment) are eligible for 3% reservation for the post of Supporting Artist in Mridangam for Dance (Kerala Natanam). Petitioner having participated in the selection process was rank No.5 in the main list and rank No.1 in the hearing impairment list as per the ranked list published on 19/7/2017. A simultaneous selection to another category Category No.508/2013 was also conducted by KPSC namely Supporting Artist in Mridangam for OP(KAT) No.167/2020 -:3:- Bharatanatyam in Kerala Collegiate Education Department (Music Colleges). Common examination was conducted for both the posts and in respect of category No.508/2013, petitioner was rank No.1 in the hearing impairment list and rank no.3 in the main list. Sri.Rakend T., was rank No.1 in both the rank lists published for the posts for persons with blindness/low vision. Sri.Rakend T. was advised by KPSC and he got appointment as Supporting Artist in Mridangam for Bharatanatyam in RLV Music and Fine Arts College. He relinquished his claim for appointment to the post of Supporting Artist in Mridangam for Dance (Kerala Natanam). Since Sri.Rakend T. did not choose to join duty, the said post was treated as Non Joining Duty (NJD) by the Directorate of Collegiate Education as no other candidate was available in the visually impaired list.
2. Though the petitioner staked a claim, the same came to be rejected on the ground that in the absence of a person with disability from a specific category, vacancy had to be carried forward to the subsequent selection year and if in the subsequent selection year as well, no candidate with the above disability was available, then only it could be filled by inter-change from the OP(KAT) No.167/2020 -:4:- next category of disabled person. Petitioner therefore challenged his non inclusion by change of category by filing OA No.1950/2019. The Tribunal after considering the respective contentions dismissed the Original Application.
3. Learned counsel for the petitioner would submit that when a notification has been issued for the purpose of appointing differently abled persons, if one person does not join duty, the next person from the list has to be given that opportunity.
4. Learned counsel for the petitioner had placed reliance on the judgment of the Apex Court in Union of India and Another v. National Federation of the Blind and Others [(2013) 10 SCC 772] and also a Division Bench judgment of this Court in Kerala Public Service Commission and Another v. E.Dineshan and Others [2016 (2) KHC 910 (DB)].
5. Annexure A4 along with Ext.P1 is the ranklist which would indicate that two separate rank lists were prepared from among the persons having blindness/low vision and hearing impairment.
6. Apparently this is a case in which there was only one post and selection was from among the differently abled persons. OP(KAT) No.167/2020 -:5:- As per the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, 3% of the vacancies had to be reserved for 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 posts identified for each disability. Section 36 of the 1995 Act further indicated that where in any recruitment year any vacancy under S.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, suitable person with disability is not available, it may first be filled up 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. The Rights of Persons with Disabilities Act, 2016 had came into force on 19/4/2017 and under S.34 of the 2016 Act, 4% of the total number of vacancies in the cadre strength in each group of posts were meant to be filled with persons with OP(KAT) No.167/2020 -:6:- benchmark disabilities and 1% each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c). Clause
(a) is blindness and low vision and clause (b) is deaf and hard of hearing, Sub-section (2) of S.34 is pari materia to Section 36 of the 1995 Act. Therefore, if due to non availability of a person with the benchmark disability, or for any other sufficient reason, such vacancy has to be carried over to the succeeding recruitment year and if a suitable person is not available, it can be filled up by inter-change among the other categories. Therefore, an inter- change is possible only when that vacancy is carried forward during the next year of selection.
7. This is a case in which Rakend T. applied for two posts in two different selections. He joined in one post and he did not join in the other post viz., Supporting Artist in Mridangam for Dance (Kerala Natanam). That post was intended for blindness/low vision as per roster. If such a candidate is not available in that category, in terms with the statutory provision, it has to be carried forward to the next year and only if a candidate is not available in the next year that it can be interchanged. Such being the legal position, we do not think that the Tribunal OP(KAT) No.167/2020 -:7:- committed any error in rejecting the plea of the petitioner. No grounds are made out for interference.
OP(KAT) is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
GOPINATH P.
Rp JUDGE
OP(KAT) No.167/2020
-:8:-
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION
NO.1950/2019 FILED BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
ANNEXURE A1 TRUE COPY OF THE DISABILITY CERTIFICATE
NO.C3-9395/14/GHT DATED 17.10.2014
ISSUED BY THE GENERAL HOSPITAL,
THIRUVANANTHAPURAM.
ANNEXURE A2 TRUE COPY OF THE NOTIFICATION DATED
10.08.2015 IN CATEGORY NO.212/2015.
ANNEXURE A3 TRUE COPY OF THE NOTIFICATION NO.GR
11A(3) 24770/13/GW DATED 04.03.2016.
ANNEXURE A4 TRUE COPY OF THE RANK LIST PUBLISHED BY
THE 2ND RESPONDENT KPSC, BEARING
NO.697/17/OLE DATED 19.07.2017 IN
CATEGORY 212/2015.
ANNEXURE A5 TRUE COPY OF THE LETTER DATED
22.09.2018 ISSUED BY RAKEND.T.
ANNEXURE A6 TRUE COPY OF THE LETTER DATED
16.08.2019 TO THE CHAIRMAN KPSC, BY THE
APPLICANT.
ANNEXURE A7 TRUE COPY OF THE COMMUNICATION
NO.CO3/220/2019-KPSC DATED 30.08.2019 ADDRESSED TO THE APPLICANT.
ANNEXURE A8 TRUE COPY OF THE LETTER SEND BY THE PETITIONER TO THE CHIEF MINISTER DATED 16.01.2019.
ANNEXURE A9 TRUE COPY OF THE GO(P) NO.8/17/SWD DATED 06.05.2017.
OP(KAT) No.167/2020-:9:- EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 04.03.2020 IN OA NO.1950/2019.
True Copy PS to Judge Rp