Adik P.B v. State of Kerala and Cochin University of Science and Technology and Registrar, Cochin University of Science and Technology (CUSAT)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA,** ## **1945** ## **WP(C) NO. 13742 OF 2022** ## **PETITIONER:** **ADIK P.B AGED 37 YEARS S/O. BABU P.K, PATHIYARA HOUSE, EDAVANAKKAD, ERNAKULAM DISTRICT 682 502** **BY ADVS.** **A.L.NAVANEETH KRISHNAN ASWATHY KRISHNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM** - **2 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, CUSAT P.O 682 022, ERNAKULAM DISTRICT, REP. BY THE REGISTRAR** - **3 THE REGISTRAR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY., CUSAT P.O, 682 022** **BY ADV SHRI.S.P.ARAVINDAKSHAN PILLAY, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.13742 of 2022 ..2.. ## **T.R.RAVI, J.** **------------------------------------------** ## **W.P.(C) No.13742 of 2022** **-------------------------------------------** Dated this the 28th day of November, 2023 ## **J U D G M E N T** The petitioner has approached this Court seeking a direction to the University to appoint the petitioner as Sweeper-cum-Cleaner in the services of the University. The petitioner claims entitlement to be considered for employment, being a person with disability. It is submitted that the University was bound to make appointments for the 3% vacancies that needs to be set apart for the differently abled prior to 2016 and towards the 4% vacancies to be set apart subsequent to 2016. On the basis of the said fact, the petitioner submitted that 4 vacancies were available as backlog vacancies to be filled up from the Rank List which was available and 4 vacancies were available subsequent to 2016. It is submitted that the petitioner being a person with locomotor disability ought to have been given employment. 2. The University has filed a counter affidavit in which it W.P.(C) No.13742 of 2022 ..3.. is stated that already 4 persons with locomotor disability have been appointed from the list and persons with other impairments like blind/low vision have not been appointed for want of candidates. Out of the total number of 4 persons already appointed from the list, 3 persons are persons with locomotor disability and one person is a hearing impaired person. It was also stated that 1 vacancy has been kept apart for filling up from among persons with blind/low vision. It is hence submitted that the petitioner cannot claim appointment as of right since his turn would not have arisen even if 8 persons are to be appointed. It is also submitted that the Rank List has now expired and no further appointment is possible. 3. The counsel for the petitioner relied on the judgment of a Division Bench of this Court in _**Kerala Public Service Commission and Another v. E. Dineshan and Others**_ [2016 (2) KHC 910]. Specific reference is made to paragraph 13 of the judgment, which is extracted below:- “13.Going by the ratio of the decision of the Apex Court in Ravi Prakash Gupta's case (supra), the vacancies which were in existence in the case of the recruitment in question in W.A.No.362 of 2015 would have to be considered as existing vacancies as on the date of the notification issued by the KPSC. In that view of the matter, no question of backlog vacancies or filling up of the same by resorting to a special recruitment would arise in the instant case. W.P.(C) No.13742 of 2022 ..4.. Therefore, in view of the unassailed factual findings that the contesting respondent would be entitled to appointment, if the 3% of vacancies from 1.1.2004 to 31.12.2007, which were liable to be kept apart for physically handicapped persons, were filled up from the supplementary list, the contention that a special recruitment has to be made in respect of those vacancies fails, since such vacancies can be considered as current vacancies. Since the filling up of the vacancies could have been taken up only after the identification of the posts by the Government, the vacancies could be deemed to have arisen after such identification. Therefore, they can be considered as having arisen during the currency of Exhibit P3 list and therefore liable to be filled up therefrom. Even otherwise, since after the identification of the posts a process of selection having been carried out by the KPSC for the purpose of publishing Exhibit P3 list, Exhibit P3 list, which was intended only to fill up the vacancies of physically handicapped candidates, can be reckoned as being a list published pursuant to a special recruitment for the purpose of the persons with disabilities Act. We also find that the provisions of Rule 15(a) and Rule 17A of Part II KS&SSR have no strict application to the case on hand in view of the fact that specific provisions contained in the 1995 Central enactment govern the appointments of physically disabled persons. The reservation of posts and the mode in which such reservation is to be worked out having been set forth in the Act which has been interpreted by the Apex Court by binding precedents, we are of the considered opinion that the judgments under appeal have only followed the law laid down on the point.” 4. The above judgment of this Court would show that if backlog vacancies are available and a Rank List is in force, the said backlog vacancies will also have to be filled up from that Rank List. This judgment has been followed with approval in Ext.P5 judgment which relates to the very same Rank List with which this Court is concerned in this writ petition. This Court took note of the W.P.(C) No.13742 of 2022 ..5.. judgment of the Division Bench referred above and found that the University is bound to fill up the backlog vacancies from the list. It is noted that though 70 appointments were made from the Rank List of 2005 against the vacancies which arose from 01.01.2004 to 31.12.2007, no differently abled candidate was appointed from the list. The Court also noticed that there are only 4 differently abled candidates remaining in the Rank List. However, in Ext.P5, the Court was concerned about the right of 2 persons who claimed entitlement to the vacancies which were to be set apart to persons with locomotor disability. The Court hence directed the University to compute the 1% vacancies available for the candidates with locomotor disability reckoning the vacancies for the period from 07.02.1996 and to make appointments from Ext.P3 Rank List. The Court did not specifically say that the petitioners in the writ petition alone should be appointed from among the persons who are entitled to appointment on the basis of being candidates with locomotor disability. However, on calculating the 1% vacancies, it was found 2 persons with locomotor disability alone would be entitled for appointment and the said 2 vacancies were filled up by the persons who are admittedly ranked above the petitioner. Even W.P.(C) No.13742 of 2022 ..6.. on giving effect to the direction in Ext.P5, it was thus noticed that a rd 3 candidate with locomotor disability could not have been appointed for want of vacancies after 1996 for the said category. The Counsel for the petitioner submits that it was not necessary that 1% alone should be reserved for a person with locomotor disability and when vacancies are available to be filled up from among persons who are disabled and a person with disability is available in the Rank List, such person should be given employment by interchanging the category. That is to say, instead of granting an appointment to a person with disability with regard to the eye or ear, a person with locomotor disability should be appointed, for want of a candidate under the other two categories. I do not think that such a process can be gone into in this writ petition. The petitioner admittedly is a person with locomotor disability and the University has filled up the vacancies which are available to be filled up by persons with locomotor disability already. No positive directions can be granted to the petitioner by the University for appointing the petitioner. Even if vacancies are available to be filled up from among persons with other disabilities, so long as no person is available in the list, the only other option W.P.(C) No.13742 of 2022 ..7.. for the University is to fill up the same by resorting to a special recruitment procedure. The Counsel for the University submitted that even after Ext.P5 judgment, during the pendency of the rank list, an additional appointment has been made of a person with locomotor disability. In the above circumstances, no relief can be granted in this writ petition. The writ petition fails and is dismissed. Sd/- **T.R.RAVI, JUDGE** AS W.P.(C) No.13742 of 2022 ..8.. ## **APPENDIX OF WP(C) 13742/2022** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF NOTIFICATION NO AD.A4/174/2018 DATED 30-12-2008** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PROVISIONS OF THE RANK LIST DATED 28-12-2018** - **EXHIBIT P3 TRUE COPY OF THE RANKED LIST DATED 0603-2019** - **EXHIBIT P3(A)** - **TRUE COPY OF THE EXTRACT OF THE SYNDICATE MEETING HELD ON 18.09.2020 WITH AGENDA NO.679.42 AND THE RELEVANT PORTION OF THE FILE NOTES** - **EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O(P) NO. 8/17/SJD DATED 0605-2017** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 24-082020 IN WPC NO. 32638/2019** - **EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER DATED 11-09-2020 IN W.P(C) NO. 18640/2020** - **EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER BEARING G.O(P) NO. 12/2019/SJD** **EXHIBIT P8 TRUE COPY OF THE TABLE EVIDENCING THE ORIGINAL APPOINTMENT** **EXHIBIT P9 TRUE COPY OF THE TABLE EVIDENCING THE APPOINTMENTS AFTER FILLING UP THE BACKING VACANCIES** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 03-022020 IN W.P(C0 NO. 20385/2020** - **EXHIBIT P11 TRUE COPY OF THE COMMUNICATION NO. B2/73/2021/H.EDN DATED 22-11-2021** **EXHIBIT P12** **TRUE COPY OF THE COMMUNICATION DATED 13-12-2021 ALONG WITH THE RELEVANT PORTION OF THE SYNDICATE MEETING ON 08-12-2021 WITH AGENDA NO 693.02**