Dr. Rupa Jinadevan 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** **WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938** **OP(KAT).No. 358 of 2014 (Z)** **----------------------------------------------AGAINST THE ORDER/JUDGMENT IN OA 2751/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 26.02.2014** **PETITIONER(S)/APPLICANT IN THE O.A:** **----------------------------------------------------------** **DR. RUPA JINADEVAN, MAYAMOHANAM, FEROKE COLLEGE P.O., KOZHIKODE - 673 632.** **BY ADVS.SRI.B.RAGUNATHAN SRI.G.GOPALAKRISHNA PILLAI SRI.M.SALIM SRI.R.SRINATH SRI.V.M.JACOB SRI.M.M.LALBIND SRI.P.PRASANTH** **RESPONDENT(S)/RESPONDENTS IN THE O.A:** **-----------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. PRINCIPAL SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 695 004.** **4. DIRECTOR,** **DIRECTORATE OF HOMEOPATHY, EAST FORT, THIRUVANANTHAPURAM - 695 023.** **5. KERALA ADMINISTRATIVE TRIBUNAL, REPRESENTED BY REGISTRAR, KERALA ADMINISTRATIVE TRIBUNAL, VANCHIYOOR, THIRUVANANTHAPURAM - 695 035.** **R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R1,R 2,R 4 BY SRI.N.MANOJ, GOVERNMENT PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DG** **OP(KAT).No. 358 of 2014 (Z)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **----------------------------------------** ## **P1 - TRUE COPY OF THE ORDER DT. 26.2.14 IN OA NO. 2751/13.** - **P2 - TRUE COPY OF THE OA ALONG WITH ANNEXURES.** - **P3 - TRUE COPY OF THE PETITION TO ACCEPT ADDITIONAL DOCUMENTS ALONG WITH ADDITIONAL DOCUMENTS.** - **P4 - TRUE COPY OF THE NOTE DT. 24.5.12 OFTHE HON'BLE CHIEF MINISTER OF KERALA.** - **P5 - TRUE COPY OF THE LETTER DT. 05.3.14 OF THE 2ND RESPONDENT (ADDITIONAL CHIEF SECRETARY TO GOVERNMENT).** - **P6 - TRUE COPY OF THE LETTER DT. 12.3.14 OF THE 2ND RESPONDENT (ADDITIONAL CHIEF SECRETARY TO GOVERNMENT).** - **P7 - TRUE COPY OF THE JUDGMENT DT. 13.12.10 IN WPC NO. 28824 OF 2010 - C OF THIS HON'BLE COURT.** - **P8 - TRUE COPY OF THE ORDER DT. 25.10.95 OF THE DIRECTOR OF INDUSTRIES AND COMMERCE.** - **P9 - TRUE COPY OF THE ADDENDUM NOTIFICATION DT. 21.10.11 OF THE KPSC.** **P10 - TRUE COPY OF GO(MS) NO. 77/2011/TRAN DT. 22.12.11.** **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------------------** **/TRUE COPY/** ## **P.A.TO JUDGE** ## **P.R. RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.** ----------------------------------------------------------- O.P.(KAT).No.358 of 2014 ---------------------------------------------------------Dated this the 7[th] day of September, 2016 ## J U D G M E N T ## **P.R.Ramachandra Menon, J.** Grievance is with regard to the denial of employment to the petitioner who is a physically challenged person and who claimed appointment in the post of Medical Officer (Homoeo) by virtue of her placement in the rank list concerned, as against 3% quota available to such category in terms of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2. With regard to sequence of events, notification was issued by the PSC for the post in question, in the year 2007 and on completion of the process of selection, rank list was published on 27.07.2009. Petitioner is a person who was enlisted at rank No.9 in the 'orthopedically handicapped' category. During the pendency of the rank list, persons upto serial No.8 were given appointment, against 3% quota under the aforesaid Act and the next turn is that of the petitioner. Since the petitioner was never appointed, she approached the Tribunal by filing _O.P.(KAT).No.358/2014_ **2** O.A.No.2751 of 2013 with following prayers: “a) direct the 4[th] respondent to report all existing vacancies of Medical Officer (Homoeo) to respondents 2 and 3 forthwith; b) direct the respondents 2 and 3 to advice the applicant to the post of Medical Officer (Homoeo) by giving benefit of reservation under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; c) direct the 4[th] respondent to appoint the applicant as Medical Officer (Homoeo) in the event of advice given by respondents 2 and 3; d) direct the 3[rd] respondent to consider Annexure A2 representation; e) grant such other reliefs as this Honourable Tribunal deems fit and proper in the circumstances of the case including costs of this Original Application.” 3. The claim was resisted from the part of the respondents; mainly contending that there was no vacancy to accommodate the petitioner. The original application came to be dismissed by the Tribunal, holding that validity of the rank list had already expired and as such, no relief could be extended to the applicant. This made the petitioner to challenge the order _O.P.(KAT).No.358/2014_ **3** passed by the Tribunal by approaching this Court with the present Original Petition. 4. Heard the learned counsel for the petitioner as well as the learned special Government Pleader who entered appearance on behalf of the State/Department, besides the learned standing counsel for the Public Service Commission. 5. The learned counsel for the petitioner points out that expiry of the rank list is not a ground to deny benefits to the persons like the petitioner; more so in view of the ruling rendered by the Supreme Court to the effect that 'backlog vacancies' if any, can be filled up from the expired rank list [in **State of U.P. v.Ram Swarup Saroj (2000(3) SCC 699)].** It is stated that the said verdict was followed by a Division Bench of this Court in W.A.No.362 of 2015 on 06.01.2016. A reference is made to the verdict passed by the Apex Court in **Union of India and Another v. National Federation of the Blind and Others [2013(10) SCC 772];** by virtue of which it is settled that the entire vacancies have to be reckoned right from the commencement of the Act, that is from 09.02.1996, so as to work out the actual extent of percentage (i.e., 3%). Taking all such _O.P.(KAT).No.358/2014_ **4** vacancies arising from 09.02.1996 into consideration, the total comes to 674; of which 3%, i.e., 20 vacancies shall stand earmarked to the physically challenged category. It is stated that only 15 persons have been appointed to the posts so far, ever since the commencement of the Act and as such, there is a deficit of 'five' vacancies, which has to be topped up, adding that the petitioner being the next person, she ought to have been appointed under any circumstances. 6. When the matter came up for consideration before this Court, after admitting the same on 10.12.2014, an interim order was passed on 10.02.2016. The said order reads as follows: “The learned Government Pleader on instructions submits that the claim of the petitioner would be considered in the light of the judgment in W.A.No.362/2015 and connected cases. Therefore, post this case along with the judgments in W.A.No.362/2015 and connected cases on 22.02.2016.” 7. By virtue of the said order, eligibility of the petitioner to get appointment against the '3% quota' under the Persons _O.P.(KAT).No.358/2014_ **5** with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 stands conceded, to be given effect to in the terms of the verdict passed by the Division Bench of this Court in W.A.No.362 of 2015. Subsequently, it was brought to the notice of this Court on 15.03.2016, that 'two' vacancies were available and the petitioner might be given appointment in one of the said two vacancies. Instructions were sought for by the learned Government Pleader in this regard. Pursuant to the instructions received, it was submitted before this Court on 21.03.2016 by the learned Government Pleader that the aforesaid two vacancies were filled up by appointing candidates advised by the Public Service Commission on 11.01.2016. 8. The learned counsel for the petitioner points out that, when the law was declared by the Honourable Supreme Court and also by the Division Bench of this Court particularly as per the Rules laid down in W.A.No.326 of 2015, which is reported in **Kerala Public Service Commission v.E.Dineshan and others** [ **2016(2) KHC 910];** the aforesaid two vacancies could not have been filled under any circumstance on a subsequent date, which only shows the scant regards being paid by the Government to _O.P.(KAT).No.358/2014_ **6** the orders/verdicts passed by this Court. The learned special Government Pleader however points out that, filling up of the said vacancies was pursuant to the 'Special Recruitment' notified in the year 2012, the selection conducted by the Public Service Commission and the advice of the candidates effected by the PSC. The submission made by the learned special Government Pleader that the case of the petitioner will be considered in terms of the verdict passed in W.A.No.362 of 2015 was only on 10.02.2016 and by the time, the proceedings had already been issued in this regard. It is stated that there is absolutely no malafides or any attempt to deny the chance of the petitioner, nor is there any intention to go beyond the law declared by this Court or by the honourable Supreme Court. It is added that, based on the instructions obtained, all the vacancies which are available have already been reported to the PSC and that no vacancy to the post in question is available as on date. 9. The learned counsel for the petitioner points out that, as per the information gathered from the State Public Information Officer of the PSC vide proceedings bearing No.ICDS.I(2)/4069/16, Government Notification dated Nil, three _O.P.(KAT).No.358/2014_ **7** vacancies in the post in question were to arise on 01.06.2016 and 'one' vacancy was to arise on 01.08.2016, adding that there was no NJD vacancy available. The learned special Government Pleader submits that the tenure of the Medical Officers appointed pursuant to the Special Recruitment was to be over by '31.05.2016'; but considering the organizational interest and need of the hour, the term was extended by 'six months' which will come to an end only on 30.11.2016. However, since it is stated that the existing vacancies have already been reported to the PSC and nothing is stated before this Court with regard to the vacancy which has arisen on 01.08.16 as intimated from the office of the PSC and further since the right of the petitioner to get appointed against 3% quota under the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 in terms of the verdict passed by the honourable Supreme Court and Division Bench of this Court as mentioned above even from the expired rank list stands settled, this Court does not require any second thought to hold that the petitioner is entitled to be appointed against any existing vacancy, whether it is reported to the PSC or otherwise or _O.P.(KAT).No.358/2014_ **8** against the next arising vacancy. In the above circumstance, it is made clear that the petitioner shall be given appointment to the post of Medical Officer (Homoeo) against any one of the vacancies which has already been reported to the PSC and if no such vacancy is available, for some or other reason or factual mistake, the petitioner shall be appointed against the next arising vacancy before giving appointment to any other candidate to be sponsored by the PSC. The Original petition stands allowed. No costs. Sd/- ## **(P.R. RAMACHANDRA MENON, JUDGE)** Sd/- **(ANIL K.NARENDRAN, JUDGE)** /TRUE COPY/ P.A.TO JUDGE DG