Kerala High Court
Vaisakh Venu vs The Kerala Agricultural University on 12 February, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
WP(C).No.26740 OF 2020(N)
PETITIONER/S:
VAISAKH VENU
AGED 29 YEARS
S/O. VENU, KUNNUMPURATH HOUSE, PERINGASSERY P.O.,
THODUPUZHA, IDUKKI - 685 595.
BY ADVS.
SRI.D.KISHORE
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN (MALAKKARA)
RESPONDENT/S:
1 THE KERALA AGRICULTURAL UNIVERSITY,
REPRESENTED BY REGISTRAR, MAIN CAMPUS, VELLANIKKARA,
THRISSUR - 680 656.
2 THE VICE CHANCELLOR,
THE KERALA AGRICUTURAL UNVIERSITY, MAIN CAMPUS,
VELLANIKKARA, THRISSUR - 680 656.
3 THE REGISTRAR,
THE KERALA AGRICULTURAL UNIVERSITY, MAIN CAMPUS,
VELLANIKKARA, THRISSUR 680 656.
R1-3 BY SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL
UNIVERSITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26740 OF 2020(N)
2
JUDGMENT
Dated this the 12th day of February 2021 The question involved in the present writ petition is as to whether Kerala University adhered to the procedure prescribed in instructions dated 15.1.2018, on enactment of 'The Rights of Persons with Disabilities Act, 2016' (hereinafter called '2016 Act') with effect from 19.4.2017 and the rules framed therein.
2. Before answering the question above, it would be appropriate to refer the reasons which lead to filing of the writ petition. Kerala Agricultural University/First respondent vide notification dated 3.3.2016 invited applications, from eligible candidates, for appointment as Assistant Professors in various disciplines under faculties of Agriculture, Agricultural Engineering and Forestry in various colleges. Sl.No.2 in the Faculty of Agricultural Engineering in Ext.P1 was for 'Mathematics'. Qualifications prescribed for appointment as Assistant Professors were as under:
a. Bachelors Degree from the concerned Faculty WP(C).No.26740 OF 2020(N) 3 recognized by the Kerala Agricultural University b. Masters Degree in the relevant subject recognized by the Kerala Agricultural University with a minimum of 55% marks and c. National Eligibility Test (NET conducted by ICAR/UGC/CSIR/AICTE or similar test Accredited by the UGC).
3. Petitioner applied for the post of Assistant Professor pursuant to Ext.P1 notification, under general category. After having undergone the selection process, the rank list dated 19.2.2019, Ext.P2, was published, by the Registrar of the University. As per the rank list the name of the petitioner figured at Sl.No.1 under general category.
4. Learned counsel appearing on behalf of the petitioner submitted that the validity of the rank list would expire on 19.2.2021 and till such date the respondents have not taken any steps to fill up the vacancy/vacancies from Ext.P2 rank list. On the basis of the enquiry, it surfaced that the vacancy of Mathematics has been categorized as NCA vacancy ie., "No Candidates Available"
WP(C).No.26740 OF 2020(N) 4 of Ezhava in the last selection held on 16.5.2013. In the selection of 2013, the said post was reserved for differently abled-blind candidate. But no such person was appointed.
As per the provisions of Act of 2016 effective from 2017, the aforementioned post was required to be carry forward.
On the next recruiting year, which started in the year 2016, no such disabled candidates or with bench mark disabilities was found suitable for filling up the post. On ascertainment of the facts by availing the provisions of Right to Information Act, it also surfaced that there was only vacancy in the discipline of Mathematics and the said vacancy was required to be filled up with a differently abled blind persons. As per clause 8.5 of notification Ext.P9, the reservation has to be carry forward but it does not prevent the employer or the recruiting agency to fill up the vacancy by a person of other category, in the absence of availability of persons with benchmark disability. Even from perusal of Ext.P10 dated 6.5.2017, it is discerned that the Government fixed the reservation with the person with disabilities in 100 point reservation roster to be as 1, 34, 67 instead of 33, 66, 99, as was done in the past. This is WP(C).No.26740 OF 2020(N) 5 in tandem with the new Act by maintaining 3% reservation for the person with physical disabilities. It is in this background, the petitioner has filed this writ petition claiming appointment under general category.
5. On the contrary, learned counsel appearing on behalf of the University submitted that the aforementioned vacancy is under the category of 'No Candidate Available' and therefore the petitioner cannot claim for appointment, as the period of two year is not over. It would be over only in February 2021. The rotation chart in respect of the discipline, Mathematics has been prepared only for one vacancy observing communal rotation as per KS&SSR. Since no candidate was available with the Bench mark disability the vacancy has been kept as NCA for notification/re-notification as per the provisions of rules of Rights of Persons with Disabilities Act 2016 (Act No.49 of 2016) ie., Chapter VI, Section 34 which provides that appropriate Government shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled up with persons with WP(C).No.26740 OF 2020(N) 6 benchmark disabilities of which, one per cent each shall be reserved for persons with benchmark disabilities as per clauses (a), (b) and (c) and one per cent for persons with benchmark disabilities under clauses (d) and (e). A similar question came to be pondered before the Division Bench of this Court in Dr. Anis Joseph.R v. the Kerala Agricultural University (W.A No.1373 of 2019 dated 26.8.2019) where a candidate belonging to SIUC Nadar community sought appointment against the No candidate Available (NCA) vacancy of the year 2008 in the absence of availability of a person with disability or bench mark disability. It was contended that the University had not taken any steps for filling up post belonging to the aforementioned community for the last twelve years, which was justified on the ground of its tri-furcation. Noticing all the facts, this Court found that the person would not have a claim on the said post, as it was the 2 nd notification and deemed it appropriate that the vacancies to be re- notifed immediately. By concluding his argument, he submitted that petitioner has no claim over the aforementioned vacancy, as it could not be filled up by a WP(C).No.26740 OF 2020(N) 7 person with disability or benchmark disability owing to COVID 19 pandemic.
6. I have heard the learned counsel for the parties and appraised the paper book. In the first recruitment year, ie., 2014 no person with the physical disability or with bench mark disability was found for post of Assistant Professor in the stream of Mathematics. Even in the process of 2nd recruitment as notified by the notification in 2016, as per the information under the RTI received by the petitioner vide Ext.P4, one vacancy is still available, which is reserved for DAB (Low vision).
7. Now the question which raised above, is required to be answered by taking the aid of notification dated 15.1.2018 caused by the Department of Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training on the subject of "Reservation for the Persons with Benchmark Disabilities". Clause 8 of the notification, prescribes the procedure of Inter se exchange and carry forward of reservation in case of direct recruitment. As per clause 8.1, wherein any recruitment year any vacancy cannot be filled up due to non availability WP(C).No.26740 OF 2020(N) 8 of a suitable person with benchmark disability or for any other sufficient reason, the said vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also a suitable person with benchmark disability is not available, it may be filled by interchange among the four categories of disabilities, ie.,
a). Blindness and low vision, b) deaf and hard of hearing,
c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attach victims and muscular dystrophy d) autism, intellectual disability, specific learning disability and mental illness, at one percent each to each category.
8. Clause 8.2 further clarifies that there is no person with benchmark 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 benchmark disability and if, as per 8.4, the vacancy reserved for any category of benchmark disability cannot be filled due to non- availability of a suitable person with that benchmark disability or, for any other sufficient reason, such vacancy shall be carried forward as a 'backlog reserved vacancy' WP(C).No.26740 OF 2020(N) 9 to the subsequent recruitment year.
9. Clause 8.5 is the clincher where despite occurrence of such vacancies, it cast the duty upon the employer to go ahead with the process of filling up the vacancy in the manner prescribed therein. Clause 8.5 of the notification reads thus:
"8.5 In the subsequent recruitment year the 'backlog reserved vacancy' shall be treated as reserved for the category of disability for which it was kept reserved in the initial year of recruitment. However, if a suitable person with that benchmark disability is not available, it may be filled by interchange among the categories of benchmark disabilities identified for reservation. In case no suitable person with benchmark disability. If the vacancy is filled by a person with benchmark disability of the category for which it was reserved or by a person of other category of benchmark disability by inter se exchange in the subsequent recruitment year, it will be treated to have been filled by reservation. But the vacancy is filled by a person other than a person with benchmark disability in the subsequent recruitment year, reservation shall be carried forward for a further period upto two recruitment years whereafter the reservation shall lapse. In these two subsequent years, if situation arises, the procedure for filling up the reserved vacancy shall be the same as followed in the subsequent recruitment year."
On perusal of the aforementioned clause, it is axiomatic that if a suitable person with a benchmark disability is not available, it can be filled by interchange among the categories of benchmark disabilities identified for the reservation. In case no suitable person with a WP(C).No.26740 OF 2020(N) 10 benchmark disability is available, for filling up the vacancy in the succeeding year also, the employer may fill up the vacancy by a person other than 'a person with benchmark disability'. It is this situation, which is sought to be invoked on behalf of the petitioner by submitting that the vacancy cannot be carried forward but only reservation, as evidenced from the last lines of clause 8.5 ibid. It prescribes that the reservation shall be carried forward for a further period of two recruitment years whereafter the reservation shall lapse.
10. The argument of the counsel regarding the lapse of two years in February 2021, would be of no significance as it is a matter of record that in the first recruitment year of 2014, no person with a disability of benchmark much less in the present selection process of 2016 is available and there has been a lapse of two years. It is also settled law that the rank list in case on its lapse, no direction can be given by the High Court even if the matter is pending, even for initiating the process of appointment by filling up the vacancy. Concededly, the rank list of 19.2.2019 is going to expire on 19.2.2021. It is not comprehendible that WP(C).No.26740 OF 2020(N) 11 how the respondent employer has interpreted the notification in not taking steps to fill up the vacancies by a person other than a person with benchmark disabilities ie., the petitioner who is falling in zone of consideration being No.1 in the rank list. The respondent in paragraph 4 stated in following manner:
The averments contained in para 3 of the Writ Petition are not correct and hence denied by the respondent. The Kerala Agricultural University vide notification no. GA/KI/34376/2012 dated 03.03.2016 invited applications for appointment to the posts of Assistant Professors in various disciplines under the Faculties of Agriculture, Agricultural Engineering and Forestry. The first batch of appointment to various disciplines started immediately after the publication of the ranked lists vide notification dated 19.02.2019. Afterwards the Central Educational Institutions (Reservation in Teachers, Cadre) Act, 2019 came into force on 09.07.2019 with effect from 07.03.2019. As per the said Act, all disciplines in the University are to be regarded as one single unit for recruitment, instead of treating each discipline as separate unit, which was the practice being followed by the University. The University is in the process of arriving at a final decision on the applicability of the said Act in Kerala Agricultural University based on which University will be making appointments from the current rank lists to the vacant posts of Assistant Professor under above mentioned faculties. The post of Assistant Professor lying vacant will be filled by the University considering various facts of requirements. It was also notified in the vacancy notification dated 03.03.2016 that the number of vacancies may vary depending upon the arising vacancies and requirement. The question of extending the validity of rank list published, will be taken up on merits as the validity of the present rank lists will expire only by 18.02.2021.
WP(C).No.26740 OF 2020(N) 12 On perusal of the aforementioned stand, it is evident that the University is in the process of arriving at a final decision on the applicability of the Central Educational Institutions (Reservation in Teachers, Cadre) Act, 2019 to make up the appointments. But such act, in my view cannot be kept pending for infinite making the applicability of notification caused on enactment of Act No.49 of 2016, redundant. There is always a shortage of Assistant Professors viz-a-viz the ratio of students available in colleges or schools. An aspirant for appointment lives on a hope of sustenance to make both ends meet and also feed family. If the inaction of the respondent goes unnoticed, eligible person like the petitioner would be deprived the right of employment.
11. As an upshot of my findings, I am of the view that it is a fit case where the petitioner's case falls within the clause 8 of Ext.P9 notification, the respondents ought to have carry forward the reservation but not the vacancy and filled up the same with the person other than the person with benchmark disability. The judgment relied upon on behalf of the respondent would of no help as it was a case WP(C).No.26740 OF 2020(N) 13 of a NCA vacancy of SIUC Nadar category, whereas the facts pertain to the interpretation of clause 8.5 of Notification where University failed to take any steps in filling up the vacancy with a person other than benchmark disabilities.
Accordingly the writ petition is allowed. The respondents are directed to appoint the petitioner being the meritorious/No.1 in the rank list to the post of Assistant Professor, Mathematics before 19.2.2021.
Sd/-
AMIT RAWAL sab JUDGE WP(C).No.26740 OF 2020(N) 14 APPENDIX OF WP(C) 26740/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.
GA/K1/34376/2012 DATED 03/03/2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE RANK LIST DATED 19/02/2019 ISSUED BY THE 3RD RESPONDENT WITH RESPECT TO CANDIDATES FOR SELECTION TO THE POST OF ASSISTANT PROFESSOR IN MATHEMATICS.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT CHART PREPARED BY THE 3RD RESPONDENT IN FURTHERANCE TO EXHIBIT P1.
EXHIBIT P4 TRUE COPY OF THE INFORMATION DATED 29/05/2019 SOUGHT FOR BY THE PETITIONER FROM THE PUBLIC INFORMATION OFFICER UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P4(A) TRUE COPY OF THE INFORMATION DATED 24/06/2019 GIVEN TO EXHIBIT P4 BY THE PUBLIC INFORMATION OFFICER.
EXHIBIT P5 TRUE COPY OF THE INFORMATION DATED 29/05/2019 SOUGHT FOR BY THE PETITIONER FROM THE PUBLIC INFORMATION OFFICER UNDER THE RIGHT TO INFORMATION ACT.
EXHIBIT P5(A) TRUE COPY OF THE INFORMATION DATED 25/07/2019 GIVEN TO EXHIBIT P5 BY THE PUBLIC INFORMATION OFFICER.
EXHIBIT P6 TRUE COPY OF THE MEMORANDUM DATED 29/12/2005 ISSUED BY THE GOVERNMENT OF INDIA.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT IN UNION OF INDIA AND ANOTHER VS. NATIONAL FEDERATION OF THE BLIND AND OTHERS REPORTED IN 2013 (10) SCC 772.
EXHIBIT P8 TRUE COPY OF THE OFFICE MEMORANDUM DATED 20/06/2017 ISSUED BY THE GOVERNMENT OF INDIA.
WP(C).No.26740 OF 2020(N) 15 EXHIBIT P9 TRUE COPY OF THE OFFICE MEMORANDUM DATED 15/01/2018 ISSUED BY THE GOVERNMENT OF INDIA.
EXHIBIT P10 TRUE COPY OF THE G.O.(P).NO.8/17/SJD DATED 06/05/2017 OF THE GOVERNMENT OF KERALA.
RESPONDENT'S EXHIBIT:
R1(a) TRUE COPY OF THE RELEVANT PAGE OF THE RIGHTS OF PERSONS WITH DISABILITIES ACT, 2016 (NO.49 OF 2016) R1(b) GO(P) No.8/17/SJD Dated 6.5.2017 R1(c) TRUE COPY OF THE UNIVERSITY CIRCULAR NO.GA/C3/5889/2019 DATED 19.10.2020 R1(d) TRUE COPY OF THE UNIVERSITY CIRCULAR NO.GA/CE/5889/2019 DATED 6.11.2020