Dejo Jacob v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA,** ## **1944** **WA NO. 1130 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 20861/2020 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** DEJO JACOB, AGED 26 YEARS S/O. C. K. JACOB, CHARUVILAPUTHAN VEEDU, H. NO.120, MUSEUM NAGAR, EDAPPALLY, ERNAKULAM-682024. BY ADV M.P.PRAKASH ## **RESPONDENTS:** 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 MILK PRODUCERS' UNIION LTD. NO. E-150 (D), REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, EDAPPALLY, COCHIN-682024. 4 RECRUITMENT COMMITTEE REPRESENTED BY ITS CONVENOR AND MANAGING DIRECTOR, KERALA CO-OPERATIVE MILK MARKETING FEDERATION, PATTOM, THIRUVANANTHAPURAM-695024. 5 AKHIL RAJ S. MANNATHU PUTHAN VEEDU, PALLIKANAKKU WA No.1130 of 2021 2 P.O.,KAYAMKULAM, ALAPPUZHA-690 537. 6 RAJEEVIAL R. RAREERAM T C 18 556 3, PUNNAKKAMUGHAL, ARAMADA P.O., THIRUVANANTHAPURAM-695 032. 7 BINU G. VARAVUVILA PUTHEN VEEDU, KULATHOOR UCHAKKADA P.O., THIRUVANANTHAPURAM-695 506. BY SR.ADV. ANAND SMT. LATHA ANAND BY SRI.RINNY STEPHEN.C THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA No.1130 of 2021 3 **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ------------------------------------------------------------------** WA No.1130 of 2021 -------------------------------------------Dated this the 17[th] day of August, 2022 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J. The petitioner in WP(C)No.20861 of 2020 is the appellant herein, aggrieved by the judgment dated 3.8.2021 of the learned single Judge in the writ petition. 2. The brief facts necessary for the disposal of the writ appeal are as follows:- The appellant-writ petitioner had responded to Ext.P6 notification dated 2.3.2016 issued by the respondent-society calling for applications, _inter alia_ , for the post of Technician (General) Grade II and Plant Attender Grade III. Although, the appellant had preferred the application pursuant to the said notification, no selection process was carried on pursuant thereto. On the contrary, the respondents cancelled the said notification and issued a fresh notification (Ext.P9) dated 25.10.2019, calling for applications, inter alia, for the same posts as were notified in the earlier notification WA No.1130 of 2021 4 and making it clear that those who had responded to the earlier notification did not need to apply afresh. It would appear that the appellant-writ petitioner's application was processed in terms of the new notification and he was issued Ext.P11 admit card pursuant to which he appeared for a written test. When he was not thereafter called for an interview by the respondents, he preferred the writ petition. Through the statement of the respondents in the writ petition, the appellant came to know that the respondents had adopted a cut off criterion of 50 marks for calling the candidates for the interview and that it was because he did not secure the cut off mark that he was not called for the interview. The appellant also came to know that the post of Technician (General) Grade II was not identified by the respondents as one suitable for persons with disabilities but that the post of Plant Attender Grade III was identified as suitable for persons with disabilities. The appellant therefore amended the writ petition to challenge the resolution of the respondents that had identified the post of Plant Attender Grade III as one suitable for disabled candidates and not the post of Technician (General) Grade II. In the writ petition, the case of the appellant was premised on two contentions, namely, (1) that it was not open to the respondents to change the category of posts which had earlier been identified as suitable for persons with disabilities and (2) that taking note of Ext.P12 Government Order and Ext.P13 judgment as affirmed by a Division Bench in **Ernakulam Regional** WA No.1130 of 2021 5 ## **Co-operative Milk Producers Union Ltd., Idappalli v. State of** **Kerala** [2016 (3) KHC 350=2016(2) KLT 894], it was not open to the respondent-society to treat the post of Technician (General) Grade II as not suitable for persons with disabilities. 3.In the statement that was filed on behalf of the respondents it was pointed out that the identification of posts suitable for persons with disabilities had been done based on a circular No.54/2011 dated 14.7.2011, (Ext.R3(c)) of the Registrar of Co-operative Societies. It was further pointed out that the criteria for identification of the posts in the said circular was in turn based on the Government Order dated 4.6.2011 that was referred to in the said circular and it was thus that in the society the post of Plant Attender Grade III was identified as a post that was suitable for persons with disabilities, whereas the post of Technician (General) Grade II, was found to be unsuitable for persons with disabilities. The Government decision in Ext.P12 order dated 27.4.2013, Ext.P13 judgment that upheld the said Government Order, as also the Division Bench decision referred above were sought to be explained as having been rendered in the context of a selection proceeding that had been initiated prior to the Government Order and circular referred above. It was also pointed out that the said Government Order and judgment pertained to a candidate with a disability who had actually worked in the society as a Technician in the past and it WA No.1130 of 2021 6 was under those circumstances that the said disabled candidate was accommodated in the post of Technician (General) Grade II. 4. The learned single Judge, who considered the matter found force in the contention of the respondents that the petitioner who was a disabled candidate with mental disability could not claim the benefit of Ext.P12 order and the judgments referred above that were rendered in entirely different circumstances and dismissed the writ petition finding the appellant-petitioner disentitled to the reliefs prayed for in the writ petition. 5.In the appeal before us, it is the contention of Sri.M.P.Prakash, the learned counsel for the appellant relying on the following judgments in **Secretary to Government of Kerala, Irrigation Department v. James Varghese** [2022 (3) KLT 250 (SC)], **Vikash Kumar v. Union Public Service Commission and others** [(2021) 5 SCC 370], **Ashok Kumar Giri v. Government of India and others** [(2016)6 SCC 511], **Association of Milma Officers v. State of Kerala** [2015 (1) KLT 849 (LB), **Kavitha Balakrishnan v. Prasanna Kumari** [2015(4) KLT 700] and **State of U.P. and another v. Dr.M.J.Siddiqui and Ors.** [(1980) 3 SCC 174] that in view of the categorical pronouncement of the Supreme Court interpreting the provisions of the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) WA No.1130 of 2021 7 Act, 1995, an employer who answers to the description of establishment under the Act is obliged to reserve 3% / 4% of the total vacancies in the cadre strength of the identified posts in the said establishment for recruitment by persons with disabilities. It is his case that while the appellant had responded to the notification issued by the respondents and applied for both the Technician (General) Grade II post, as also the Plaint Attender Grade III post, he was not called for the interview for either of the posts and it was therefore that he chose to file the writ petition pursuing his case for appointment to the post of Technician (General) Grade II. It is his case that in as much as by the judgment of the Division Bench in ## **Ernakulam Regional Co-operative Milk Producers Union Ltd.** (supra), this Court had found that the respondent-society was obliged to comply with the provisions of the Persons with Disabilities Act , it was not open to the respondents to now contend that they were not an establishment for the purposes of the Act. It is his further contention that at any rate, since the respondents had admitted that they were bound by the provisions of the Co-operative Societies Act, that contemplate a reservation of posts for persons with disabilities, in a like manner as is contemplated under the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995 / 2016, it was not open to them to unilaterally exclude the post of Technician (General) Grade II from the category of posts that could have been reserved for appointment WA No.1130 of 2021 8 by persons with disabilities. 6.Per contra, it is the submission of the learned Senior counsel Sri.Anand assisted by Sri.Vishnu on behalf of the respondent-society that the identification of posts suitable for recruitment with persons with disabilities was done pursuant to the Government Order dated 27.04.2013 referred to in the Circular No. 54/2011 dated 14.07.2011. A reference is made to the circular to show that the identification of posts done by the respondents in Annexure R3(e) was based on Annexure R3(c) circular, and hence the appellant cannot be heard to contend that it was not at the instance of the State Government that an identification of suitable posts had been done by the respondents. The argument, in otherwords is that the Division Bench judgment relied upon by the learned counsel for the appellant had only made it clear that the appropriate authority for identification of posts was the State Government and in the instant case it cannot be said that it is not pursuant to the identification of the post by the State Government that the respondent-society had identified posts other than Technician (General) Grade II as suitable for appointment with persons with disabilities. It is also submitted by the learned senior counsel that to the post of Plant Attender Grade III which was the post identified for recruitment with persons with disabilities , three candidates had been identified for appointment of which only two WA No.1130 of 2021 9 eventually joined and there is one vacancy subsisting (due to the non availability of eligible candidates) and the respondents now plan to fill the said vacancy after re-notifying the same. 7. On a consideration of the rival submissions, we find force in the contention of the learned senior counsel for the respondent-society that in view of the identification of posts suitable for persons with disabilities having been done pursuant to a Government Order and a circular issued by the Registrar of Cooperative Societies, the non-identification of the post of Technician (General) Grade II as a post suitable for persons with disabilities cannot be seen as illegal or irregular. That being the case, we cannot accept the contention of the learned counsel for the appellant that he must nevertheless be accommodated to the said post taking note of his position in the merit list that was drawn up by the respondents in the selection process. We are of the view that the identification of posts that are suitable for persons with disabilities is the preliminary step for consideration of the claim of a disabled candidate for appointment to the said post, and is in tune with the purpose and object of the Persons with Disabilities (Equal Opportunities, protection of Rights and Full Participation) Act. The appeal to that extent must necessarily fail. 8. That being said, we find it rather fortuitous as far as WA No.1130 of 2021 10 the appellant is concerned that there is a vacancy in the post of Plant Attender Grade III for which the appellant had applied pursuant to the notifications aforementioned. While it is a fact that the appellant did not pursue the claim for the said post in view of the pendency of these proceedings before us, at the instance of the appellant, we feel that in the absence of any other candidate for the post, and in the light of the submission of learned senior counsel for the respondents that the respondent-society is proposing to re-notify the vacancy, it would be in the interests of justice, and in furtherance of the objects of the Act, as also in the spirit of reasonable accommodation flagged by the Supreme Court in the recent judgment in **Vikash Kumar v. Union Public Service Commission** (AIR 2021 SC 2447), to consider the case of the appellant herein for an appointment to the said post. While taking the said view, we are persuaded by the fact that the experience certificates produced by the appellant, as Ext.P5 series in the writ petition, clearly reveal that despite being a person with 40% intellectual disability, he has rendered service as a Fitter and is therefore, eminently qualified for the non-technical post of Plant Attender Grade III notified by the respondent-society. No doubt, while considering the case of the appellant, the respondent-society would be within its right to consider his suitability, just as they would have consider the suitability of any other disabled candidate who had qualified in the selection process pursuant to the WA No.1130 of 2021 11 notification in question. Thus, while we dismiss the writ appeal to the extent it relates to the claim of the appellant for the post of Technician (General) Grade II, we direct the respondent-society to consider the claim of the appellant to the post of Plant Attender Grade III in the vacancy that now exists in the society within two months from the date of receipt of a copy of this judgment. The writ appeal is disposed as above. Sd/- **A.K.JAYASANKARAN NAMBIAR, JUDGE** Sd/- **MOHAMMED NIAS C.P., JUDGE** dlk 19.8.2022 WA No.1130 of 2021 12 ## **APPENDIX OF WA 1130/2021** |PETITIONERS EXHIBITS|PETITIONERS 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 P5(3)|TRUE COPY OF THE CERTIFICATE DATED| ||10.07.2017 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| ||10.02.2020 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.| |Exhibit P10|TRUE COPY OF THE APPLICATION OF THE| ||PETITIONER.| WA No.1130 of 2021 13 - Exhibit P11 TRUE COPY OF THE HALL TICKET ISSUED TO THE PETITIONER. - Exhibit P12 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 P16 TRUE COPY OF THE RANK LIST DATED 07.09.2020 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. - ANNEXURE R4(a) TRUE COPY OF THE RELEVANT PAGES OF THE BYE-LAW OF ERNAKULAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LIMITED. - ANNEXURE R4(b) TRUE COPY OF THE JUDGMENT DATED 17.09.2020 IN W.P.(C) NO.15529/2020. - Exhibit P14 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE ISSUING MEDICAL AUTHORITY, GOVERNMENT OF INDIA. - Exhibit P15 TRUE COPY OF THE UNIQUE DISABILITY ID ISSUED TO THE PETITIONER BY THE GOVERNMENT OF INDIA. - ANNEXURE R3(a) TRUE COPY OF THE BYE-LAW OF THE 3RD RESPONDENT MILMA. - ANNEXURE R3(b) TRUE COPY OF THE JUDGMENT DATED 17.09.2020 IN W.P.(C) NO.15529/2020. - ANNEXURE R3(c) TRUE COPY OF THE CIRCULAR NO.54/2011 DATED 14.07.2011 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES. - ANNEXURE R3(d) TRUE COPY OF THE CIRCULAR NO.11/2013 DATED 28.02.2013 ISSUED BY THE REGISTRAR OF CO-OPERATIVE SOCIETIES. - ANNEXURE R3(e) TRUE COPY OF THE BOARD RESOLUTION WA No.1130 of 2021 14 NO.9/1335 DATED 14.12.2019. ANNEXURE R3(f) TRUE COPY OF THE RANK LIST FOR THE POST OF PLANT ATTENDER GRADE III. ANNEXURE R3(g) TRUE COPY OF THE RANK LIST FOR THE POST OF TECHNICIAN GR.II (GENERAL) PUBLISHED ON 07.09.2020. Exhibit R4(a) TRUE COPY OF THE JUDGMENT DATED 17.09.2020 IN W.P.(C) NO.15529/2020. Exhibit R4(b) TRUE COPY OF THE RANK LIST FOR THE POST OF TECHNICIAN GR.II (GENERAL) PUBLISHED ON 07.09.2020. Exhibit R4(c) TRUE COPY OF THE LETTER DATED 18.12.2019 ISSUED BY THE 3RD RESPONDENT TO THE CONVENOR OF THE 4TH RESPONDENT.