Kerala High Court
N.M.Shanoj vs State Of Kerala on 16 June, 2015
Author: P.V.Asha
Bench: K.Surendra Mohan, P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937
OP(KAT).No. 18 of 2016 (Z)
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AGAINST THE ORDER IN OA 483/2012 of KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM DATED 16-06-2015
PETITIONER:
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N.M.SHANOJ
S/O. NARAYANAN N.M, NAMBOORI MADATHIL HOUSE,
MELADY P.O., VATAKARA, KOZHIKODE DISTRICT - 673522,
MOB NO.9809805239.
BY ADV. SRI.P.M.PAREETH
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE PUBLIC SERVICE COMMISSION
REP. BY ITS SECRETARY, OFFICE OF THE PUBLIC SERVICE COMMSSION,
PATTOM, THIRUVANANTHAPURAM - 695 001.
3. THE SECRETARY
DISTRICT OFFICE, KERALA PUBLIC SERVICE COMMISSION,
WAYANADU - 673 122.
4. THE DEPUTY DIRECTOR OF EDUCATION
CIVIL STATION, KALPETTA, WAYANAND, KERALA - 673 121.
5. DEPUTY DIRECTOR OF PANCHAYATH
EMILY P.O., KALPETTA, WAYANAD, KERALA - 673 121.
6. DISTRICT LABOUR OFFICER
KELPETTA NORTH, WAYANAD, KERALA - 673 122.
7. DISTRICT PLANNING OFFICER
CIVIL STATION, WAYANAD, KERALA - 673 121.
8. ASST. DEVP. COMMISSIONER
CIVIL STATION, WAYANAD, KERALA - 673 121.
9. DISTRICT INFORMATION OFFICER
CIVIL STATION, WAYANAD, KERALA - 673 121.
10. DEPUTY DIRECTOR NATIONAL SAVINGS
CIVIL STATION, WAYANAD, KERALA - 673 121.
OP(KAT).No. 18 of 2016
11. DISTRICT EMPLOYMENT OFFICER
CIVIL STATION, WAYANAD, KERALA - 673 121.
12. REGIONAL TRANSPORT OFFICER
CIVIL STATION, WAYANAD, KERALA - 673 121.
13. DISTRICT SOCIAL WELFARE OFFICER
CIVIL STATION, WAYANAD, KERALA - 673 121.
14. DISTRICT TOWN PLANER
KALPETTA NORTH, WAYANAD, KERALA - 673 122.
15. DISTRICT REGISTRAR
KALPETTA, WAYANAD, KERALA - 673 122.
16. JT. DIRECTOR CO.OP SOCIETIES
KALPETTA, WAYANAD, KERALA - 673 122.
17. DISTRICT INSURANCE OFFICER
KALPETTA, WAYANAD, KERALA - 673 122.
18. DISTRICT LOTTERY OFFICER
KALPETTA NORTH, WAYANAD, KERALA - 673 122.
19. GENERAL MANAGER
DISTRICT INDUSTRIES CENTRE, MUTTIL, WAYANAD,
KERALA - 670 645.
20. DISTRICT OFFICER
DISTRICT MINING AND GEOLOGY OFFICE, MEENGADI P.O.,
WAYANAD, KERALA - 673 591.
21. DISTRICT SOIL CONSETVATION OFFICE
CIVIL STATION, WAYANAD, KERALA - 673 121.
22. DIVISIONAL FORREST OFFICER
NORTH MANANTHAVADY, WAYANAD, KERALA - 673 124.
23. DISTRICT FOREST OFFICE SOUTH
KELPATTA, WAYANAD, KERALA - 673 121.
24. DMO, O/O. DISTRICT MEDICAL OFFICER,
MANANTHAVADY, WAYANAD, KERALA - 673 124.
25. DMO, O/O. DISTRICT MEDICAL OFFICER ISM,
KALPETTA, WAYANAD, KERALA - 673 121.
26. DMO, O/O. DISTRICT MEDICAL OFFICER HOMEO,
MUTTIL, WAYANAD, KERALA - 673 122.
27. EXECUTIVE ENGINEER
P. BUILDING, KALPETTA NORTH, WAYANAD, KERALA - 673 121.
28. EXECUTIVE ENGINEER
PWD, ROADS, KALPETTA, WAYANAD, KERALA - 673 121.
29. DISTRICT OFFICER
ANIMAL HUSBANDRY OFFICE, MUNDERI ROAD,
KALPETTA, WAYANAD, KERALA - 673 121.
OP(KAT).No. 18 of 2016
30. DISTRICT TREASURY OFFICE
CIVIL STATION, WAYANAD, KERALA - 673 121.
31. DISTRICT PANCHAYATH OFFICE
O/O. DISTRICT PANCHAYATH OFFICE, CIVIL STATION,
WAYANAD, KERALA - 673 121.
32. DISTRICT OFFICER, ECONOMICS AND STATISTICS,
KALPETTA, WAYANAD, KERALA - 673 121.
33. DISTRICT MISSION CO ORDINATOR, KUDUMBASREE, GULDERI ROAD,
KALPETTA, WAYANAD, KERALA - 673 121.
34. PRINCIPAL AGRICULTURAL OFFICER
KALPETTA, WAYANAD, KERALA - 673 121.
35. DISTRICT COURT
KALPETTA NORTH, WAYANAD, KERALA - 673 122.
36. DISTRICT SUPPLY OFFICER
CIVIL STATION, WAYANAD, KERALA - 673 121.
37. DISTRICT OFFICER
FIRE AND RESCUE, KALPETTA, WAYANAD, KERALA - 673 121.
38. ADDL. DISTRICT MAGISTRATE
COLLECTORATE, CIVIL STATION, KALPETTA,
WAYANAD, KERALA - 673 121.
39. SUB COLLECTOR,
MANANTHAVADY, WAYANAD, KERALA - 673 124.
40. ASST. EXECUTIVE ENGINEER
KERALA WATER AUTHORITY, SULTHANBATHERY,
WAYANAD, KERALA - 673 592.
41. DEPUTY EXCISE COMMISSIONER
KALPETTA, WAYANAD, KERALA - 673 121.
42. ASST. CONTROLLER
LEGAL METROLOGY, KALPETTA, WAYANAD, KERALA - 673 121.
43. ASSISTANT COMMISSIONER
COMMERCIAL TAXES, KALPETTA, WAYANAD, KERALA - 673 121.
44. DRUG INSPECTED OFFICE
MEENAGADI, WAYANAD, KERALA - 673 591.
SRI.JOSEPH GEORGE, GOVERNMENT PLEADER
R BY SRI.P.C.SASIDHARAN, SC, KPSC
R BY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RKC
OP(KAT).No. 18 of 2016 (Z)
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APPENDIX
PETITIONER'S' EXHIBITS
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P1 - A TRUE PHOTOCOPY OF THE ORDER DT. 16.06.2015 IN OA NO. 483/2012
RECEIVED BY THE COUNSEL FOR THE PETITIONER ON 03.8.2015.
P2 - A TRUE PHOTOCOPY OF THE MEMORANDUM OF ORIGINAL APPLICATION NO.
483/2012 DT. 10.2.2012.
RESPONDENTS' EXHIBITS: NIL
RKC
TRUE COPY
PA TO JUDGE
K.SURENDRA MOHAN &
P.V.ASHA, JJ.
O.P.(KAT).No.18 of 2016
Dated this the 8th day of February, 2016
JUDGMENT
Surendra Mohan, J.
The petitioner in O.A.No.483 of 2012 is before us challenging the order dated 16.6.2015 of the Kerala Administrative Tribunal (hereinafter referred to as "the KAT" for short). The petitioner is a physically challenged person stated to be suffering from an orthopedic disability which according to him is 40%. He claimed that he was entitled to be appointed against one of the vacancies reserved for persons with disability under the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Act" for short). Pursuant to a notification issued by the 2nd respondent inviting applications for selection and appointment to the post of Lower Division Clerk, the petitioner had submitted an application. After the selection process, he was ranked as No.17 in the "Orthopaedically Handicapped Category". The list has expired on 31.3.2012. For O.P.(KAT).No.18 of 2016 :2: the above reason, the KAT has dismissed the Original Application.
2. According to the petitioner, there were a large number of vacancies available in the various Departments in Wayanad District. But the vacancies were not properly reported by the departmental heads to the 2nd respondent. Reliance is placed on Annexure-A2 order issued by the Government, wherein it has been directed that a special recruitment be conducted for filling up the vacancies that are identified for the appointment of physically handicapped persons. It is also contended that, dismissal of the petitioner's Original Application on the ground that the list has expired was totally unjustified.
3. According to Advocate Sri.P.M.Pareeth, who appears for the petitioner, the Apex Court has in the decision in State of U.P. Vs. Ram Swarup Saroj (2000 (3) SCC 699) held that where an Original Application has been filed before the expiry of the list, the relief therein would not become infructuous by virtue of the expiry of the list during the pendency of the proceedings. Reliance is also placed on the decision of a Division Bench of the Delhi High Court in Ravi Prakash Guptha Vs. U.P.S.C and others, which has been affirmed by the Apex Court in the O.P.(KAT).No.18 of 2016 :3: decision reported in Government of India and another Vs. Ravi Prakash Guptha and another (2010 (7) SCC 626), to put forward a contention that, 3% of the total number of vacancies reported to the Public Service Commission would have to be set apart for being filled up by physically handicapped persons. Such a procedure not having been adopted in the matter of filling up the posts notified in the present case, the order of the KAT requires to be interfered with, it is contended.
4. Per contra, the learned Government Pleader contends that the Government have already identified the vacancies that could be set apart for physically handicapped persons and has issued Annexure A2 order directing the conduct of a special recruitment for the purpose of filling up the posts that are identified. The petitioner would also be entitled to apply when such a notification is issued. The present notification having expired, it is pointed out that the relief sought for by the petitioner could not be granted. We have heard Advocate Sri.P.C.Sasidharan, learned standing counsel, appearing for the 2nd respondent also.
5. In the present case, a notification for filling up the O.P.(KAT).No.18 of 2016 :4: vacancies of Lower Division Clerks had been issued, pursuant to which the petitioner had applied. After selection, Annexure-A1 rank list was also prepared. The list was operated for the full period of its validity and has expired. A number of persons have been appointed. It is noticed that the petitioner had approached the KAT only on 8.2.2012, on the eve of expiry of the rank list. Shortly thereafter, the rank list had expired. A number of persons have been appointed from the rank list to various posts. According to the learned standing counsel for the Kerala Public Service Commission, thereafter, on the basis of notifications issued, two selections have been conducted and two rank lists have been published. The above being the factual scenario, it is contended that, no interference with the said processes that were concluded is warranted at this length of time.
6. Heard. Admittedly, the rank list Annexure-A1 has expired in March 2012, after having been operated for the full period of its validity. A number of persons have been appointed to the notified vacancies, from the said rank list. The petitioner is seen to have approached the KAT only on 8.2.2012 shortly before the expiry of the rank list. The KAT has dismissed the original O.P.(KAT).No.18 of 2016 :5: application for the reason that the rank list had expired. We are not satisfied that the relief of directing that 3% of the vacancies notified should be reserved for physically handicapped persons could be granted at this length of time. Any such direction would have the effect of upsetting the appointments made from the list, that has expired long back. Thereafter two other lists have come into force and appointments have been made from those lists also. There is no justification for upsetting all the appointments so made.
7. We notice from Annexure-A2 that the Government have identified the posts that could be reserved for physically handicapped persons. Paragraph 3 of Annexure-A2 reads as follows:
3. Accordingly as per Government Orders read as 3rd, 4th & 6th above, Government entrusted the selection process of physically handicapped persons to the 3% vacancies in Class I, II, III & Class IV earmarked for them to Kerala Public Service Commission with effect from 1.1.2004. But the modalities of appointment and the turn of physically handicapped candidates were fixed only as per G.O(P) 46/08/SWD dated 19.5.2008. Hence the appointments of physically handicapped from O.P.(KAT).No.18 of 2016 :6: 1.1.2004 to 31.12.2007 to the 3% vacancies earmarked for them could not be made. As a result of this, backlog vacancies to be appointed by physically disabled persons exists in almost all Departments. Government have decided to conduct special recruitment to fill up the backlog vacancies. Accordingly, details of District wise, Department wise and year wise appointments made against the posts identified for physically handicapped candidates during 1.1.2004 to 31.12.2007 have been collected from the Kerala Public Service Commission and the number of posts in each category to be set apart and earmarked for filling the 3% backlog vacancies entitled for the physically disabled from 1.1.2004 - 31.12.2007 was assessed.
8. The Government have also directed a special recruitment to be conducted to appoint physically handicapped persons. The omission to identify the vacancies earlier has been subsequently taken note of while issuing Annexure-A2. We are satisfied that, the Government have initiated action to rectify the omission in not identifying the vacancies that could be set apart for the appointment of the physically handicapped persons, earlier. Therefore, we are not satisfied that any further direction in this regard is required to be issued.
O.P.(KAT).No.18 of 2016 :7:
9. The learned counsel for the petitioner places reliance on the decision in Government of India and another Vs. Ravi Prakash Guptha and another (2010 (7) SCC 622) (supra). It is true that the Apex Court has directed the vacancies available for being filled up by physically handicapped persons to be identified. However, in the present case, such vacancies have already been identified and necessary directions for conducting a special recruitment for filling up such vacancies have also been issued as evident from Annexure-A2. The above being the position, no further direction is necessary to be issued in this regard.
For the forgoing reasons, we find no grounds to interfere with the order of the KAT or to grant any of the reliefs sought for. The original Petition is accordingly dismissed.
Sd/-
K.SURENDRA MOHAN, JUDGE.
Sd/-
P.V.ASHA, JUDGE.
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