Abhilash.K. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938 OP(KAT).No. 213 of 2014 (Z) ---------------------------AGAINST THE ORDER/JUDGMENT IN OA 51/2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 16-05-2013 ## PETITIONER : ------------- ABHILASH.K., AGED 33 YEARS, S/O.E.P.NARASYANAN NAMBIAR, KUNNATH HOUSE, USHALAYAM, AZHIKODU P.O., KANNUR - 670 009. ## BY ADV. SRI.P.NARAYANAN RESPONDENTS/RESPONDENTS:-: ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM - 695 001. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, KPSC, THIRUVANANTHAPURAM - 695 004. 4. THE DEPUTY COMMISSIONER, EXCISE, ERNAKULAM - 682 013. R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R-R1,R2,R4 BY SR.GOVERNMENT PLEADER SRI.K.C.VINCENT THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 06-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 213 of 2014 (Z) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS :- ----------------------- EXHIBIT P1. TRUE COPY OF O.A.(EKM)NO.51/2013 FILED BY THE PETITIONER BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P2. TRUE COPY OF THE ORDER DATED 16.05.2013 IN 0.A.(EKM) NO.51/2013 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P3. TRUE COPY OF THE INFORMATION SOUGHT UNDER RTI ACT DATED 28.10.2013. EXHIBIT P3(a). TRUE COPY OF THE ANSWER ISSUED BY PUBLIC INFORMATION OFFICER TO EXHIBIT P3 DATED 18.12.2013. EXHIBIT P4. TRUE COPY OF NOTIFICATION PUBLISHED IN THE KERALA GAZETTE AS PER G.O.(P)NO.19/2014/LSGD DATED 28.01.2014. EXHIBIT P5. TRUE COPY OF THE ORDER DATED 07.02.2013 IN T.A.NO.3337/2012 AND T.A.NO.6893/2012 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P6. TRUE COPY OF COMMUNICATION NO.V3-15845/13 DATED 11.10.2013 INFORMATION UNDER RTI ACT. EXHIBIT P7. TRUE COPY OF THE JUDGMENT DATED 08.10.2013 IN CIVIL APPEAL NO.9096/2013 OF THE HON'BLE SUPREME COURT OF INDIA. RESPONDENTS' EXHIBITS : NIL. ----------------------- True copy P.A to Judge **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------O.P.(KAT)No.213 of 2014 -----------------------------------------------------------------Dated this the 6[th] day of June, 2016** ## **JUDGMENT** ## Ramachandra Menon, J. Grievance projected by the petitioner in this case is against the verdict passed by the Tribunal, whereby the claim to have been considered against the post of Municipal Secretary from the current rank list operated by the PSC was turned down; holding that the backlog vacancies cannot be filled up from the current rank list. This according to the petitioner is not correct or sustainable, in view of the relevant provisions of law and the binding precedents and hence under challenge. 2. To have clarity of understanding, the prayers raised by the petitioner in the O.A. are relevant to be extracted as given below:- I) To set aside Annexure A7 G.O to the extent to which it proposes to fill up the backlog vacancies by Special Recruitment reserved for physically handicapped persons; II) To declare that the applicant is entitled to advice and appointment to the post of O.P.(KAT)No.213 of 2014 2 Municipal Secretary Gr.III in the Urban Affairs Department against the backlog vacancy in the said post earmarked for physically handicapped candidate, which occurred subsequent to 1.1.2004; III) To direct the third respondent to issue advice memo to the applicant in the post of Municipal Secretary Gr.III in the Urban Affairs Department by applying the principle of carrying forward as stated in Section 36 of Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; IV) V) VI) To direct the second respondent to appoint the applicant to the post of Municipal Secretary Gr.III on the basis of advice memo issued by PSC; To declare that Annexure A7 G.O. cannot stand in the way of advice and appointment of the applicant against the backlog vacancy which arose subsequent to 1.1.2004 by applying the principle of carrying forward; To declare that Annexure A7 G.O. is issued in violation of Section 36 of Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. O.P.(KAT)No.213 of 2014 3 3. The O.A. was dismissed by the Tribunal as per Ext.P2 judgment dated 16.5.2013; the operative portion of which as contained in the last two paragraphs are extracted below:- “2. While disposing of T.A.Nos.337/2012 and 6893/2012, we have considered whether the persons included in the general rank list could claim that they should be advised to the backlog vacancies. The answer was in the negative. Further, in this case, learned Standing Counsel for the Public Service Commission pointed out that Annexure A1 rank list is no longer operated because the Government have modified the qualifications prescribed for the post of Municipal Secretary Grade III. Earlier, Law graduates alone were eligible to apply from the open market. Now, any graduate can apply for the post. So, with effect from the date of modification of the qualification, Annexure A1 has become non-operational, it is submitted. In view of the above position, no relief can be granted to the applicant, it is pointed out. For filling up the back-log vacancies of Scheduled Castes and Scheduled Tribes, the consistent practice followed is special recruitment. No general rank list is ever used O.P.(KAT)No.213 of 2014 4 for the purpose of filling up the back-log vacancies. In the case of physically handicapped persons, the same principle has to be followed. So, Government have correctly issued Annexure A7. We find no jurisdictional error in Annexure A7. In the result, the Original Application is dismissed.” 4. When the matter came up for consideration before this Court on the earlier occasions, it was brought to the notice of this Court that the legal question involved has already been decided by a Division Bench of this Court as per the verdict dated 6.1.2016 in W.A.No.362/2015 making clear that the backlog vacancies can be filled up from the current rank list. The contention of the PSC that there was a change in qualification and hence no relief can be granted was also turned down by virtue of Ext.P4 G.O.(P)No.19/2014/LSGD dated 28.1.2014 and as such, there could not have been any further challenge in this regard. The only point which remains for consideration is whether any backlog vacancy was available. Validity of the rank list is stated as extended upto 30.6.2016. O.P.(KAT)No.213 of 2014 5 5. The learned counsel for the petitioner asserted that backlog vacancies are available. Reference is also made to paragraph 7 of the counter affidavit filed by the Public Service Commission which is re-produced below:- “7. At present 9 vacancies (6 anticipated + 3fresh) are available for the post of Municipal Secretary Gr.III in Urban Affairs Departments. The details of vacancies are as follows:- |Date of<br>Receipt|No.of vacancies|Remarks| |---|---|---| |05/03/16|1|Fresh| |11/03/16|1|Fresh (Anticipated due<br>on 01.03.2010)| |11/03/16|1|Fresh (Anticipated due<br>on 01.04.2016)| |11/03/16|3|Anticipated due on<br>01.06.2016| |11/03/16|1|Anticipated due on<br>01.08.2016| |11/03/16|2|Anticipated due on<br>01.12.2016| |Total|**9**|| 6. The law has been declared by a Division Bench of this Court in W.A.No.362/2015 and it is worthwhile to extract paragraphs 14 and 15 here below:- “14. In view of the categoric findings of the Apex Court in the aforenoted and other judgments, the question whether reservation O.P.(KAT)No.213 of 2014 6 available to physically handicapped persons under the Act has to be computed on the basis of the vacancies which arose with effect from 1.1.1996 is no longer _res integra_ . The Act having come into force with effect from 1.1.1996, reservation, which has been held to be not dependent on the identification of the posts would come into operation with effect from the date of the effect of the Act. At best, what can be contended is only that the reservation can be operated by the KPSC only with effect from the dates from which that authority was entrusted with the function of making selections and appointments to the public sector undertakings involved. Even if that be the case, if the vacancies which arose after the KPSC was entrusted with the function of making selections and appointments is considered, all the party respondents would be entitled to succeed in their respective writ petitions. The vacancies earmarked for physically handicapped persons are therefore to be reckoned not with effect from the date of the Government Order identifying the posts or with effect from 1.1.2008, the date on which the Government directed by its clarificatory order that the reservation is to take effect, but with effect from 1.1.1996 or at least with O.P.(KAT)No.213 of 2014 7 effect from the date when the KPSC was entrusted with the selection and the number of vacancies as well as the quota and the rota available, would be capable of being ascertained. Looked at from this angle also, the judgments under appeal are perfectly in order and in strict conformity with the principles set out by the Apex Court in the matter of implementation of the reservation available to physically handicapped persons. 15. Another Bench of this Court in _**Kavitha Balakrishnan v. Prasanna Kumari**_ (2015(4) KLT 700), which had occasion to consider the various aspects of the implementation of the reservation available to physically handicapped persons, has held as follows: _“16. .....the Act was brought into force recognising the country's obligation as a signatory to the proclamation that was adopted on the Full Participation and Equality of the People with Disabilities in the Asia Pacific Region. The object of the Act is to (1) integrate persons with disabilities into social mainstream (2) lay down a strategy for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities and for education, training, employment and rehabilitation amongst other responsibilities and (3) to give effect to the proclamation on full participation and equality of people with disabilities in Asian and Pacific Regions. Act being a social welfare legislation, it has to be liberally interpreted so that the purpose of the_ O.P.(KAT)No.213 of 2014 8 _enactment is fully achieved. Every establishment which is bound by the Act should imbibe the true spirit of the Act and implement the statutory provisions....”_ 7. After hearing both the sides and after going through the materials on record with reference to the Division Bench Judgment on the subject and in so far as there is no dispute with regard to the availability of the vacancies and that validity of the rank list has been extended upto 30.6.2016, this Court finds that the petitioner is eligible to succeed. Accordingly, Ext.P2 verdict passed by the Tribunal is set aside. The PSC is directed to advise the petitioner against one of the available vacancies to the post of 'Municipal Secretary-Grade.III', which shall be done in accordance with law, at the earliest, at any rate, within two weeks from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above. Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- ## **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge