Dejo Jacob Charuvilaputhan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** **WP(C) NO. 20861 OF 2020** ## **PETITIONER/S:** DEJO JACOB CHARUVILAPUTHAN VEEDU, H NO.120, MUSEUM NAGAR, EDAPPALLY, ERNAKULAM-682024. BY ADV M.P.PRAKASH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, AGRICULTURE (DIARY) DEPARTMENT, SECRETARIAT, THIRUVANANATHAPURAM-695001. 2 SECRETARY SOCIAL JUSTICE DEPARTMENT, SECRETARIAT, THIRUVANANATHAPURAM-695001. 3 ERNAKULAM REGIONAL CO OPERATIVE MIL PRODUCERS UNIION LTD NO. E-150 (D), REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, EDAPPALLY, COCHIN-682024. 4 RECRUITMENT COMMITTEE REPRESENTED BU ITS CONVENOR AND MANAGING DIRECTOR, KERALA CO-OPERATIVE MILK MARKETING FEDERATION, PATTOM, THIRUVANANTHAPURAM-695024. 5 AKHIL RAJ.S, MANNATHU PUTHAN VEEDU, PALLIKANAKKU P.O.,KAYAMKULAM, ALAPPUZHA-690 537. 6 RAJEEVIAL.R., RAREEAM T C 18 556 3, PUNNAKKAMUGHAL, ARAMADA P.O., THIRUVANANTHAPURAM-695 032. **WP(C) NO. 20861 OF 2020** **2** 7 BINU.G., VARAVUVILA PUTHEN VEEDU, KULATHOOR UCHAKKADA, P.O. THIRUVANANTHAPURAM-695 506. ADDL.R5 TO R7 IMPLEADED AS PER ORDER DATED 19-012021 IN IA 1/21. SMT.LATHA ANAND SRI.V.M.KRISHNAKUMAR RINNY STEPHEN CHAMAPARAMPIL SRI.RENJITH THAMPAN (SR.) ASHA ELIZABETH MATHEW ## **OTHER PRESENT:** GP SRI B HARISH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON 3.8.2021 DELIVERED THE FOLLOWING: **WP(C) NO. 20861 OF 2020** **3** ## **JUDGMENT** The petitioner is suffering from mild mental retardation as per the certificate Ext.P1. Pursuant to the notification dated 2.3.2016 Ext.P6, 25 (twenty five) posts of Technician Grade II in different trades were notified, and applied. However, do to various complaints, the aforementioned notification was interdicted by the Director of Diary Development. During the interregnum 1[st] respondent vide Government order dated 21.11.2018 constituted a recruitment committee for selection and appointment to various posts in three Regional Milk Producers Unions, Ext.P7. Pursuant to the order of this Court, the Government quashed Ext.P6 Notification and directed to conduct a new recruitment by the Committee, Ext.P8. Pursuant to Ext.P8, a fresh notification dated 25.10.2019, Ext.P9 was promulgated inviting the application for filling up the posts. 2. W.P.(C) No.30323/2019 was filed, for modification of the notification, ibid for the purpose of providing reservation, **WP(C) NO. 20861 OF 2020** **4** age and qualification. Pursuant to the aforementioned notification, the petitioner submitted separate application to the post of Technician (General) Grade II and Plant Attender Grade III and in the present writ petition restricting the claim for the post of Technician (General) Grade II, referred to application Ext.P10. 3. Learned counsel appearing on behalf of the petitioner submitted that as per Section 34 of the Rights of Persons with Disabilities Act, 2016 (herein after called 'the 2016 Act', there was no reservation for the said post, except, that reservation for certain posts, as per the provisions of Section 80(5) of Kerala Co-operative Societies Act (KCS Act) which was not in existence at the time when the notification Ext.P6 was issued. In fact, vide Ext.P7 the Government having deep and pervasive control, constituted a Recruitment Committee therefore, the writ under Article 12 of the constitution of India would lie. The Government of Kerala vide order dated 27.4.2013, Ext.P12 while considering the case of one Sri.Dias Davis, who also was a physically handicapped, noticed that **WP(C) NO. 20861 OF 2020** **5** Co-operative Society, while undergoing the process of recruitment, ought to have applied the provisions of Section 34 of the 2016 Act or even Section 80(5) of the KCS Act where at least 3% of the total post of employees of every society are required to be reserved for physically handicapped candidates ie., the disability of 40% or above. It is in that background, the notification Ext.P9 was promulgated but again there was no reservation for twenty two (22) posts. Reservation was kept only for Plant Attender. The order Ext.P12 dated 27.4.2013 was challenged in this Court vide WP(C) No.13308/2013 which was upheld by this Court, resulted into writ appeal reported in _**2016(2) KLT 894 (Ernakulam Regional Cooperative Milk Producers Union Ltd. v. State of Kerala)**_ whereby the judgment of the Single Bench was upheld. Considering the aforementioned directions a resolution dated 14.12.2019 was passed whereby reservation was provided only under one category ie., Plant Attender Grade III and not for Technicians, as evidenced from letter dated 18.12.2019, Ext.P18. **WP(C) NO. 20861 OF 2020** **6** 4. In order to buttress the argument, learned counsel for the petitioner submitted that the objection of the respondents of non maintainability of the writ petition on account of the alternative/efficacious remedy would not have any substance as the petitioner as per the provisions of Section 69(2) (d) of the Kerala Co-operative Societies Act is not the employee of any of the Society. Division Bench of this Court by noticing all the provisions ie., Section 80(5) of the KCS Act and 2016 Act, found that the vacancies earmarked for physically handicapped under PWD Act were to be reckoned from the date of commencement of the 2016 Act to the extent of three percent (3%). 5. On the other hand, learned counsel appearing on behalf of the respondent No.3 submitted that the writ petition would not lie as Co-operative Societies would not fall within the definition of Section Section 2 (k) of the 2016 Act as it applicable to only Corpoation and Companies. Co-operative Societies are governed by Co-operative Societies Act and in this case Section 80(5) would be applicable, where only 3% **WP(C) NO. 20861 OF 2020** **7** reservation is prescribed for physically disabled persons. The petitioner is a mentally retarded person and would not thus fall within the 40% of physically handicapped. The duties of the Technician involved repairs and maintenance of mechanical equipment’s of plant, office and machineries, maintenance of pneumatic and mechanical filling machines, maintenance of conveyors, welding works, custodian of tools and spares for the repairs and maintenance with eight hours shift duty round the clock. Since it is a skilled post could not be identified for reservation. In this view of the matter, the Director Board of the third respondent decided to limit the reservation to non-technical post ie., Plant Attender Gr.III. Against the notified 50 (fifty) vacancies for the post of Plant Attender Gr.III, candidates who secured 50% marks in the written test qualified for the skill assessment test and there were only three(3) candidates who applied in the category of physically challenged and qualified for skill assessment tests as they secured more than 50 percent marks in the written test ,i.e.cut off marks. Out of the 3 candidates only two(2) **WP(C) NO. 20861 OF 2020** **8** candidates appeared for the skill assessment test and both ranked as (Rank No.48 and Rank No.49) and selected as Plant Attenders Gr.III. There was no interview for the lower posts including the post of Technician Gr.II for which the petitioner had submitted an application. 6. The reservation is required to be maintained for total post and not for each category. There is no such direction in the Government order or circulars of the Registrar to treat the post of Technician reserved for physically handicapped persons. As regards the certificate to which the petitioner banked upon, through an interim application, Ext.P14 of 2013, it was made available only after the interview thus cannot be looked into at this stage, as Ext.P1 had a validity of three years, which expired in 2016 whereas the date of application was of October 2019. In support of the aforementioned contentions, the judgment reported in _**2013 KHC 783 (Saji K.A v. Sree Sankaracharya University of Sanskrit, Kalady and Others** was cited_ whereby the action of the appointing authority fixing of cut off marks for the written test **WP(C) NO. 20861 OF 2020** **9** as well as interview was held to be met unconstitutional or illegal. 7. W.P.(C) No.9981 of 2010 titled as _**Association of Milma Officers' Ksheera Bhavan v. State of Kerala and others**_ decided on 17.12.2014 wherein, while dealing with the objection of maintainability of the writ petition under Article 226 of the constitution of India in a matter pertaining to Cooperative Society was held to be maintainable, if the action is violative of statutory provisions. None of the statutory provisions were violated and therefore the writ petition would not lie. Ext.P12 cannot come to the rescue of the petitioner, for, at the relevant point of time for the purpose of making appointments in Co-operative Society as there was no vacancy for physically handicapped persons, in view of the provisions of Section 80(5) of the KCS Act. It was followed as evident from Exts.P17 and P18 dated 14.12.2019 and 18.12.2019. The judgment of Single Bench of this Court would not be applicable as it was a stage where no steps were taken by the organization for designating any specified post for physically **WP(C) NO. 20861 OF 2020** **10** disable persons. The appointments were made prior to the filing of the writ petition whereas in the instant case the appointment was in favour of 5 to 7. 8. Learned counsel appearing on behalf of respondents 5 to 7 submitted that writ petition has been filed after the selection process is over. There is no allegation against the recruitment authority or the fact that the private respondents are not qualified. As per Ext.P2, it was the Managing Director of the Society, who was directed to identify the categories which has been done. There was no such directions to keep reservation for all categories in the stream of Technician. The post of technician is more arduous than that of Plant Attender. 9. In rebuttal, learned counsel for the petitioner submitted that there is a categoric averment in the reply affidavit that the first respondent ie., the Government has a deep and pervasive control over the Society by constituting the recruitment committee, which fact is evident from Ext.P7. Thus writ petition would be maintainable. Ext.P5 are series of certificates issued by the various authorities where the **WP(C) NO. 20861 OF 2020** **11** petitioner had discharged the technical duties despite handicapness. 10. I have heard the learned counsel for the parties and appraised the paper book. It would be expedient to extract Section 34 of 2016 Act and Section 80(5) of the Kerala Cooperative Societies Act. The same reads as under: 34. _**Reservation** .—(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—_ _(a) blindness and low vision;_ - _(b) deaf and hard of hearing;_ _(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;_ - _(d) autism, intellectual disability, specific learning disability and mental illness;_ _(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities: Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:_ _Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section._ _(2) Where in any recruitment year any vacancy cannot be_ **WP(C) NO. 20861 OF 2020** **12** _filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five 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 five categories with the prior approval of the appropriate Government. 17 (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit._ **Section 80.Officers, etc., of co-operative societies.- xxxxx** _[(5)Notwithstanding anything contained in sub-section (1) or (2) three percent of the total posts of employees of every society shall be reserved for physically handicapped persons having disability of forty percent or above, as certified by the medical board and the procedure of appointment shall be such as may be prescribed: Provided that in societies where there are more than ten and less than thirty three employees including cadre and sanctioned posts, there shall be reserved a minimum of one employee belonging to physically handicapped persons._ 11. The foundation of the present writ petition is based upon the orders Exts.P7 and P12 whereby the Government appointed a recruitment committee consisting of Secretory to Government, in charge of Dairy Development Department, Chairman of Kerala Co-operative Milk Marketing Federation, Registrar of Dairy Co-operative Societies, and Managing Director of the respective Regional Co-operative Milk **WP(C) NO. 20861 OF 2020** **13** producers Union, Committee member etc.. Section 69(2)(d) of the KCS Act, reads as follows: _69.Disputes to be decided by Co-operative Arbitration Court and Registrar.- xxxxxx 2(d) any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of section 80, including their promotion and inter se seniority._ 12. On perusal of the aforementioned, I am of the view that the provisions of Section 69(2)(d) would not be applicable as the petitioner is not the employee of the Society and therefore the objection qua maintainability of the writ petition in the absence of availment of alternative remedy is over ruled. 13. Ext.P12 is dated 27.4.2013 whereby the directions were issued considering the fact that while giving employment on Board there was no adherence to the provisions of Section 80(5) of Kerala Co-operative Societies Act as well as of Section 34 of the 2016 Act. It is in that background, the resolution dated 14.12.2019 was passed by the Board of Director for providing reservation to the physically handicapped in the process of filling posts of various **WP(C) NO. 20861 OF 2020** **14** categories and vide Ext.P18 reservation of physically handicapped persons was provided against the post of Plant Attender Gr.III. Contention of the petitioner that the petitioner had discharged the technical duties as per the series of certificate Ext.P5, in my view would not help him to seek the appointment under the category of reservation for Technician Grade -II. The role of the employer in decision making while assessing the nature of the duties cannot be interdicted since it involves physical work. The petitioner is not a physically handicapped but a mentally retarded may not be able to do the same. This Court though not an expert, still can form a prima facie view, that petitioner would not be able to discharge the technical duties of technician as culled out in the affidavit ie., repairs and maintenance of mechanical equipments of the plant, office and machineries, maintenance of pneumatic and mechanical filling machines, maintenance of conveyors, welding works, custodian of tools and spares for the repairs and maintenance with eight hours shift duty round the clock. The judgment of this Court relied upon was in the ## **WP(C) NO. 20861 OF 2020** **==> picture [16 x 9] intentionally omitted <==** context of absence of any reservation for physically handicapped persons which has been taken care of vide Ext.P18. As per Section 80(5) of KCS Act, the reservation of 3% has to be kept while employing more than 10 (ten) persons. There is no statutory violation of the Government instructions enabling the petitioner to bring the case within the realm of judicial review under Article 226 of the Constitution of India. I do not find any merit in the writ petition and accordingly dismissed. **Sd/-** sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 20861 OF 2020** **16** ## **APPENDIX OF WP(C) 20861/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE DISTRICT MEDICAL BOARD. EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE SOCIAL JUSTICE DEPARTMENT. EXHIBIT P3 TRUE COPIES OF THE NATIONAL TRADE CERTIFICATE DATED 09.10.2017. EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DT 10.07.2018 ISSUED BY INDIAN RARE EARTHS LTD. EXHIBIT P5 (1) TRUE COPY OF THE CERTIFICATE DATED 22.12.2018 ISSUED BY THE SR. ENVIRONMENTAL ENGINEER KERALA PC BOARD. EXHIBIT P5(2) TRUE COPY OF THE CERTIFICATE DATED 25.03.2017 ISSUED BY TELK. EXHIBIT P 5(3) TRUE COPY OF THE CERTIFICATE DATED10.07.2017 ISSUED BY TCC LTD. EXHIBIT P5 (4) TRUE COPY OF THE CERTIFICATE DATED 09.02.2019 ISSUED BY TCC LTD. EXHIBIT P5(5) TRUE COPY OF THE CERTIFICATE DATED 09.02.2019 ISSUED BY TCC LTD. EXHIBIT P5(6) TRUE COPY OF THE CERTIFICATE DATED 10.02.20120 ISSUED BY KAMCO. EXHIBIT P6 TRUE COPY OF THE NOTIFICATION DT. 02.03.2016 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE G.O DATED 21.11.2018. EXHIBIT P8 TRUE COPY OF THE G.O DATED 24.07.2019. EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 25.10.2019 OF THE 4TH RESPONDENT. **WP(C) NO. 20861 OF 2020** **17** EXHIBIT P10 TRUE COPY OF THE APPLICATION OF THE PETITIONER. EXHIBIT P11 TRUE COPY OF THE HALL TICKET ISSUED TO THE PETITIONER. EXHIBIT P 12 TRUE COPY OF THE G.O DATED 27.04.2013. EXHIBIT P13 TRUE COPIES OF THE JUDGMENT DATED 10.12.2015 IN W.P (C) NO.13308/2013 OF THIS HON'BLE COURT. EXHIBIT P14 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE ISSUING MEDICAL AUTHORITY, GOVERNEMENT OF INDIA EXHIBIT P15 TRUE COPY OF THE UNIQUE DISABILITY ID ISSUED TO THE PETITIONER BY THE GOVERNMENT OF INDIA EXHIBIT P16 TRUE COPY OF THE RANK LIST DATED 7.9.2020 PUBLISHED BY THE 3RD RESPONDENT EXHIBIT P17 TRUE COPY OF THE RESOLUTION DATED 14.12.2019 OF THE BOARD OF DIRECTORS OF THE 3RD RESPONDENT EXHIBIT P18 TRUE COPY OF THE LETTER DATED 18.12.2019 OF THE 3RD RESPONDENT RESPONDENT EXHIBITS EXHIBIT R4(A) TRUE COPY OF THE JUDGMENT IN WPC NO 15529/2020 DATED 17.9.2020 EXHIBIT R4(B) TRUE COPY OF THE RANK LIST PUBLISHED BY THE 3RD RESPONDENT DATED 7.9.2020 EXHIBIT R4(C) TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE CONVENOR OF 4TH RESPONDENT RECRUITMENT COMMITTEE DATED 18.12.2019