Indian Kanoon - Search engine for Indian Law

17. It is further submitted that as per Government Order dated 19/7/2008, Government had fixed Sl.Nos.33, 66 and 99 in a cycle of hundred vacancies for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the ratio 1:1:1. By yet another Government Order dated 6/5/2017, the cycle of hundred vacancies had been changed as Sl.Nos.1, 34 and 67. For filling up backlog vacancies from 1996, the Government had decided to give 3% of the cadre strength for differently abled persons w.e.f. 7/2/1996 only on 6/5/2017 as per Government Order dated 6/5/2017 for which a separate notification has to be issued. It is pointed out that the ranked list was published for the aforesaid post pursuant to notification dated 19/11/2014. Though 3% vacancies were reserved for differently abled persons, there were no qualified persons. Accordingly, the 6 vacancies were filled up by general candidates from the ranked list published on 19/11/2014. Reference is made to S.36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is further contended that 6 vacancies as seen from Annexure A5(a) includes 3 backlog vacancies set apart in respect of special recruitment as per Annexure A5(c). In respect of 5 vacancies mentioned in Annexure A5(d), those occurred against 5 differently abled persons turn which had arisen during the ranklist dated 19/11/2014. As far as backlog vacancies are concerned, it is pointed out that it is for the Government to inform KPSC about the backlog vacancies and if any such report is issued, necessary steps will be taken to fill up those vacancies by issuing separate notification.

6. The learned counsel appearing for the respondents however would submit that the Tribunal had only issued a direction to issue a revised addendum notification by including 15 more candidates from locomotor disability category in the short list, to enable them to participate in the interview. A further direction had been issued to take steps to fill up the backlog vacancies from 1996. The said direction according to the learned counsel for respondents is justifiable in so far as the facts and circumstances involved in the case are concerned. It is pointed out that for the post of Medical Officer (Ayurveda), originally 6 candidates under locomotor category were included which was later modified by adding 5 more candidates as per Annexure 13 produced before the Tribunal. Learned counsel submits that there were 13 unfilled turns of locomotor disability candidates earlier and therefore, PSC should call for interview at least twice or thrice the number of the said vacancies. That apart, it is pointed out that 13 vacancies under the aforesaid stream remained unfilled out of which 8 were passed over to general candidates. Learned counsel submits that S.36 cannot be interpreted in a manner to deny the rights of disabled persons. It is therefore the contention of the respondents that the 13 vacancies are not backlog vacancies but unfilled turns which have already undergone rostering. Learned counsel also placed reliance on a few judgments in order to sustain the plea that the Tribunal was justified in issuing the impugned order.

9. Yet another judgment relied upon is Abhilash K. v. State of Kerala (OP(KAT) No.213/2014:- Judgment dated 6/6/2016). This was a case in which the petitioners approached the Tribunal seeking for a direction to fill up the backlog vacancies from the ranked list which was extended up to 30/6/2016. The Tribunal held that when backlog vacancies in respect of Scheduled Castes and Scheduled Tribes were being filled up by special recruitment, the same principle would apply as far as physically handicapped persons are concerned. That apart, there was a change in the qualification prescribed for the said post during the pendency of the ranked list and therefore from the date when the qualification criteria have changed, the rank list has become non operational. The Division Bench of this Court placing reliance on an earlier judgment dated 6/1/2016 in WA No. 362/2015 held that backlog vacancies can be filled up from the current ranked list. It was held that when there was no dispute with regard to the availability of vacancies and the validity of the rank list had been extended, the Tribunal's order require to be set aside and PSC was directed to advice the petitioner against one of the available vacancies to the said post.

16. The other direction was issued by the Tribunal to the 2nd and 3rd respondents to fill up the backlog vacancies of differently abled category taking into account the total number of appointees from 1996. As rightly pointed out by the learned counsel for KPSC, the backlog vacancies, if any, are to be notified separately, at the instance of the Government.

17. Though it was argued by the learned counsel for respondents that KPSC was not justified in converting the backlog vacancies of differently abled candidates which had occurred with reference to 3 rank lists, which were almost working parallelly, we do not think that we will be justified in adjudicating the said issue as matters stand now. KPSC has a contention that after the expiry of the requisite period, due to non-availability of 6 vacancies of PH candidates, those were passed off to general candidates as evident from Annexure A5(a). If at all there is any irregularity in the said method, it is for the Government to consider whether a further opportunity should be granted to fill up such backlog vacancies and it is appropriate not to adjudicate on such issues in the present lis.