Asha Kumari P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932** **WP(C).No. 28824 of 2010(C)** **---------------------------------------** ## **PETITIONER(S):** **-------------------------** **ASHAKUMARI. P, AJAY BHAVAN, PARAKODE P.O, ADOOR, PATHANAMTHITTA-691 554.** **BY ADV. SRI.B.RAGUNATHAN, SRI.G.GOPALAKRISHNA PILLAI, SRI.R.SRINATH.** ## **RESPONDENT(S):** **--------------------------** ## **1. STATE OF KERALA,** - **REP. BY CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURM-695 001** **2. PRINCIPAL SECRETARY TO GOVERNMENT LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURM- 695 001** **3. KERALA PUBLIC SERVICE COMMISSION REP BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION PATTOM, THIRUVANANTHAPURM- 695 004.** **4. SMT.LIGY ALPHONSE LIGY BHAVAN, VATTAPPARA, VENCODE P.O., THIRUVANANTHAPURM- 695 028.** **5. SMT. SANGEETHA G.S, ADITHYAVILASAM PALODE, ELANCHIYAM P.O, THIRUVANANTHAPURM- 695 563.** **6. SHRI SHIJU A.F, DARUL MUBARAK THUNDATHIL, THUNDATHIL P.O., THIRUVANANTHAPURM- 695 581** **7. SMT.KEERTHI VESWANATH V.S, THRIVENI, CHIRAKKADAVOM, KAYAMKULAM, ALAPPUZHA- 690 502.** **8. SMT. FAZEELA T.B, KAROPURATH HOUSE CHALAKAL, THOTTUMUGAM P.O, ALUVA-5 ERNAKULAM- 683 105.** **WP(C).No. 28824 of 2010(C)** **9. SHRI ARUN KUMAR S.S, EVERGREEN, VARUVILA KIZHAKKATHIL, KOTTIYAM P.O., KOLLAM 691 571.** **10. SMT. SABI T.S, ANITHA BHAVAN CHENGANNUR, KOTTA P.O, ALAPPUZHA- 689 504.** **11. SHRI SONISH K., SANTHOSH BHAVAN, KOZHUVALLOOR, ALAPPUZHA- 689 521** **12. SMT.SMITHA C.S, KIDANGIL HOUSE TC. 77/1294, PETTAH, THIRUVANANTHAPURAM- 695 024.** **13. SHRI FAISAL C.K, CHELENGARA EDAPPATA, MALAPPURAM- 679 326.** **14. SMT. ANJALI P NAIR. MANIKKOTH HOUSE, PANTHALAYANI, KOYILANDI KOZHIKODE- 673 305.** ## **15. SMT. SUDHAKUMARI. K** **EZHAMVILA VEEDU, KOLLAYIL, AMARAVILA P.O., NEYYATTINKARA , THIRUVANANTHAPURAM- 695 122** **16. SHRI SUSANTH KRISHNAN. G., THUSHARA, MULAKKUZHA, MULAKKUZHA P.O, CHENGANNUR, ALAPPUZHA- 689 505.** **17. SHRI SANJAIKUMAR V.K, SWAPNA, TC. 18/1909, SREEHILLS, THIRUMALA THIRUMALA P.O, THIRUVANANTHAPURAM- 695 006.** **18. SHRI MANJITH. T., KOIPPATHIL, THALAYOLAPARAMBU, THALAYOLAPARAMBU P.O, KOTTAYAM- 686 605** **19. SMT. LEKHA.S, DHANESH BHAVAN PLOT NO.62, RPS VENGOOR, CHERUVAKKAL P.O., AYUR VIA, KOLLAM- 691 533.** **20. SMT. MOCHALA KUNJU. R., TC.49/935, LAKSHMI BHAVAN, KALIPPANKULAM MANACADU P.O., THIRUVANANTHAPURAM- 695 009.** **21. SMT. LINIPRIYA VASAVAN, KANAVATHU PRAYAR NORTH P.O., OACHIRA, ALAPPUZHA- 690 547.** **22. SMT. WINCY ANN PETER JOSEPH BETHEL, IX/179 A, ATHANI, KUSUMAGIRI P.O., ERNAKULAM- 682 030.** **23. SMT. RENJULA P.V., PUTHUVAYAL HOUSE PALATH, PALATH P.O., KOZHIKODE -673 611.** **WP(C).No. 28824 of 2010(C)** **24. SHRI SUSAL A CHINNAN ARIMBOOR HOUSE, 51/2944, TOWN HALL ROAD, ERNAKULAM NORTH ERNAKULAM- 682 018.** **25. SMT BINI. R., AKSHAYA , HOUSE NO.26, ANANDAVALLEESWARAM NAGAR THIRUMULLAVARAM P.O., KOLLAM- 691 012.** **R1 & R2 BY GOVT. PLEADER MR.P. NANDAKUMAR. R3 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC. R4 TO R6, R11, R12, R16, R20 TO R22 BY ADV.SRI.RAM MOHAN.G., SRI.G.P.SHINOD.** **R15 BY ADV. SRI.SUMAN CHAKRAVARTHY, SMT.K.R.RIJA.** **R19 & R25 BY ADV. SMT.K.K.RAZIA. R18 BY ADV. SRI.ALEX.M.SCARIA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** **WP(C).No. 28824 of 2010(C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE DEGREE OF MASTER OF LAWS DATED 29/03/2005 ISSUED BY THE UNIVERSITY OF KERALA.** **EXT.P2: COPY OF THE CERTIFICATE DATED 09/11/2005 ISSUED BY THE MEDICAL BOARD, MEDICAL COLLEGE HOSPITAL, KOTTAYAM.** **EXT.P3: COPY OF THE CERTIFICATE DATED 30/06/2009 ISSUED BY THE STANDING DISABILITY ASSESSMENT BOARD, GENERAL HOSPITAL, PATHANAMTHITTA.** **EXT.P4: COPY OF THE DISCHARGE CERTIFICATE DATED 07/07/2008 ISSUED BY THE 2ND RESPONDENT.** **EXT.P5: COPY OF THE DISCHARGE CERTIFICATE DATED 22/10/2009 ISSUED BY THE 2ND RESPONDENT.** **EXT.P6: COPY OF THE GO(RT)NO.934/09/LAW DATED 20/10/2009.** **EXT.P7: COPY OF THE DISCHARGE CERTIFICATE DATED 23/07/2010 ISSUED BY THE 2ND RESPONDENT.** **EXT.P8: COPY OF THE ADMISSION TICKET (REGISTER NO.S.2055) ISSUED BY THE 3RD RESPONDENT.** **EXT.P9: COPY OF THE LETTER DATED 23/03/2010 CALLING FOR THE INTERVIEW OF THE 3RD RESPONDENT.** **EXT.P10: COPY OF THE RANK LIST DATED 09/06/2010 PUBLISHED BY THE 3RD RESPONDENT.** **EXT.P11: COPY OF THE GO(P)NO.31/2008/SWD DATED 19/05/2008.** **EXT.P12: COPY OF THE GO(P)NO.46/2008/SWD DATED 19/07/2008.** **EXT.P13: COPY OF THE EXTRACT OF GO(P)NO.11/2009/SWD DATED 10/02/2009 (RELEVENT PORTION).** **EXT.P14: COPY OF THE APPOINTMENT CHART PUBLISHED BY THE 3RD RESPONDENT ON 15/09/2010 AND OBTAINED BY THE PETITIONER THROUGH THE INTERNET.** **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 28824 of 2010** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of December, 2010** ## **J U D G M E N T** The petitioner is a Post-graduate in Law. She is a physically disabled person having 40% orthopaedic disability. Pursuant to notification issued by the Kerala Public Service Commission inviting applications for appointment to the post of Legal Assistant Grade- II in the Law Department of Government Secretariat, the petitioner also applied, in the year 2007. She has been included in Ext.P10 rank list. Petitioner's grievance is that, in view of Sections 33 & 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, 3% of the vacancies reported for the post of Legal Assistant Grade-II has to be set apart for appointment from physically handicapped persons which has not been done by the respondents. The petitioner contends that, so far no person has been appointed from the category of physically handicapped applicants from the rank list. The W.P.(C)No. 28824 of 2010 **-2-** ## petitioner therefore seeks the following reliefs: - “i) issue a writ of mandamus or other appropriate writ, order or direction to respondents 1 to 3 to advice and appoint the petitioner to the post of Legal Assistant Gr-II in the Law Department, Government Secretariat in preference to respondent No.4 onwards with all attendant benefits. - ii) issue a writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exhibit P14 and quash the same.” 2. Both the State and the P.S.C. contends that, the Government has already published the list of posts identified under Section 32 of the Act, which does not include the post of Legal Assistant Grade-II in the Law Department and therefore the petitioner is not entitled to seek appointment in the 3% reservation category to the post of Legal Assistant Grade-II. They rely on the decision of this court in Lali v. Mahatma Gandhi University [2010 (3) KLT 539] as also the decision of this court in W.P. (C) No.15485/2009 in support of their contention. The counsel for the respondents 4, 5, 6, 11, 12, 16 and 20 to 22 would contend that, insofar as the Government has not identified this post as one suitable for accommodating the W.P.(C)No. 28824 of 2010 **-3-** appointment of physically handicapped persons the question of application of reservation as per the Act to this post does not arise. 3. I have considered the rival contentions in detail. 4. Sections 32, 33 and 36 of the Act read thus: ## “ **32. Identification of posts which can be reserved for persons with disabilities** .- Appropriate Government shall- - (a) identify posts, in the establishments, which can be reserved for the persons with disability; - (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. **33. Reservation of posts** .- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- - (i) blindness or low vision; - (ii) hearing impairment; - (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. **36. Vacancies not filled up to be carried forward** .- Wherein in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy W.P.(C)No. 28824 of 2010 **-4-** shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with 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 disability. Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the three categories with the prior approval of the appropriate Government.” 5. I am of opinion that, in view of the said provisions of the Act, it is mandatory for the State to identify all the posts which can be suitably manned by physically handicapped persons of any particular category with their disability, mentioned in the Act. The Government cannot arbitrarily hold that they have decided not to identify a particular post as one in which 3% reservation has to be made for physically handicapped persons even though the duties of the post can be discharged by physically handicapped persons with their disability. It is the cardinal duty of the State to identify all the posts which can be manned by physically handicapped persons as those coming within Section 32 of the Act in view of the mandatory W.P.(C)No. 28824 of 2010 **-5-** provisions of the Act. The State cannot insist that for this purpose they have identified only certain posts. If the duties of a particular post can be performed by a physically handicapped person of any of the categories, the State is bound to identify that post under Section 32 unless the establishment is exempted under the proviso to Section 33 of the Act. I am supported in this view by a decision of the **Supreme Court in Government of India through Secretary and another v. Ravi Prakash Gupta [(2010) 7 SCC 626]** , in paragraphs 24 to 29 of which it is stated thus: “24. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories , as has been sought to be contended on behalf of the Government of India in the instant case. 25. Although the Delhi High Court has dealt with the aforesaid questions, we wish to add a few observations of our own in regard to the objects which the legislature intended to achieve by enacting the aforesaid Act. The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by W.P.(C)No. 28824 of 2010 **-6-** bureaucratic inaction. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Groups A and B posts in the IAS was undertaken after the year 2005 is not of much substance. 26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners. 27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.” 28. For the sake of reference, Section 32 and 33 of the Disabilities Act, 1995 are reproduced hereinbelow: “32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Government shall - (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and update the list taking into consideration the developments in technology. 33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such W.P.(C)No. 28824 of 2010 **-7-** percentage of vacancies not less than three per cent for persons or class or persons with disability of which one per cent each shall be reserved for persons suffering from- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment form the provisions of this section.” 29. While it cannot be denied that unless posts are identified for the purpose of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation . In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.” 6. Admittedly, the petitioner has been working in this particular post on temporary basis for quite sometime, namely 1½ years. The State has no case that, the petitioner ## W.P.(C)No. 28824 of 2010 **-8-** has not been able to discharge the duties of that post satisfactorily. It is also clear that, the Government has not issued any order exempting the establishment from the purview of the Act by virtue of their powers under the Proviso to Section 33 of the Act. That being so, there is no reason why the Government should not have identified this post as coming within the purview of Sections 32, 33 & 36 of the Act. In the above circumstances, I am inclined to allow the writ petition. Accordingly this writ petition is allowed on the following terms: The 1[st] respondent shall reconsider the question of identification of this post as one suitable to be manned by physically handicapped person, in accordance with Sections 32, 33 and 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in the light of the observations in this judgment and pass appropriate orders within two months from the ## W.P.(C)No. 28824 of 2010 **-9-** date of receipt of a copy of this judgment and forward their decision to the P.S.C. immediately thereafter. On receipt of the same, the P.S.C. shall consider all the physically disabled candidates who have applied pursuant to the notification and prepare a separate list of physically disabled persons for satisfying the 3% reservation under the Act. Thereafter the P.S.C. shall advice candidates from that list to the vacancies already reported in accordance with law. While doing so the P.S.C. shall calculate the roster point taking into account all vacancies reported in the said post with effect from the date of coming into force of the said Act. S. SIRI JAGAN JUDGE shg/