K. Somadas v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** **WP(C).No. 32598 of 2016 (Y) ----------------------------** **PETITIONER(S): -------------** **K.SOMADAS S/O. KRISHNAN, AGED 56, KATTUNGAL HOUSE, VANDANAM P.O., ALAPPUZHA VIA, ALAPPUZHA-688005.** **BY ADV. SRI.T.R.RAJESH** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT. HEALTH AND FAMILY WELFARE (M) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.** **2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL JUSTICE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.** **3. THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, KERALA-695001.** **4. DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA, KERALA-688001.** **5. THE PRINCIPAL,** - **GOVERNMENT T.D.MEDICAL COLLEGE, VANDANAM, ALAPPUZHA DISTRICT, KERALA-688005.** **6. THE SUPERINTENDENT, GOVERNMENT T.D.MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA, KERALA-688005.** **7. THE HOSPITAL DEVELOPMENT COMMITTEE REPRESENTED BY ITS CHAIRMAN, GOVERNMENT T.D.MEDICAL COLLEGE, VANDANAM, ALAPPUZHA, KERALA-688005.** **BY SR. GOVERNMENT PLEADER SRI.T.K.ARAVINDA KUMAR BABU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 5/12/2016 ALONG WITH WPC. 32957/2016 & WPC. 33021/2016, THE COURT ON 21-12-2016, DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 32598 of 2016 (Y)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED BY THE MEDICAL BOARD DATED 7-3-2007. EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE GOVT. OF KERALA DATED 5-10-2010. EXHIBIT P3 TRUE COPY OF THE GOVT. ORDER ISSUED BY THE 2ND RESPONDENT DATED 29-10-2005.** - **EXHIBIT P4 TRUE COPY OF THE REPORT SUBMITTED BY THE MEDICAL BOARD DATED 27-02-2014.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 10-11-2014 IN WPC 28299/2012 OF THIS HONOURABLE COURT.** - **EXHIBIT P6 TRUE COPY OF THE ACTION TAKEN REPORT PASSED BY THE 6TH RESPONDENT DATED 7-1-2015.** - **EXHIBIT P7 TRUE COPY OF THE GOVT.ORDER DATED 16-6-2012 PERMITTING THE COMMENCEMENT OF A COFFEE VENDING MACHINE IN VANDANAM MEDICAL COLLEGE PREMISES.** - **EXHIBIT P8 TRUE COPY OF THE GOVT. ORDER DATED 8-6-2015. EXHIBIT P9 TRUE COPY OF THE ORDER DATED 17-6-2015 ISSUED BY THE 6TH RESPONDENT.** - **EXHIBIT P10 TRUE COPY OF THE APPROVED PLAN ISSUED BY THE DEPARTMENT OF URBAN AFFAIRS FOR PUTTING UP THE COFFEE VENDING SHOP.** - **EXHIBIT P11 TRUE COPY OF THE AGREEMENT DATED 23-10-2015 ENTERED BY THE PETITIONER.** - **EXHIBIT P12 TRUE COPY OF THE ONE SUCH RECEIPT EVIDENCING PAYMENT OF THE RENTAL CHARGES FOR THE MONTH OF JULY, 2016 DATED 26-8-2016.** - **EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 22-9-2015 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P14 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 28-9-2016.** - **EXHIBIT P15 TRUE COPY OF THE CIRCULAR ISSUED BY THE 1ST RESPONDENT DATED 3-6-2009.** - **EXHIBIT P16 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 16-12-2014 IN WPC 4429/2013.** - **EXHIBIT P17 TRUE COPY OF THE GOVT. ORDER DATED 12-02-2016.** - **EXHIBIT P18 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 6TH RESPONDENT DATED 05-10-2016.** **PJ** **....2/-** **..2..** **WP(C).No. 32598 of 2016 (Y) ----------------------------** **RESPONDENT(S)' EXHIBITS -----------------------** **ANNEXURE R4(A) TRUE COPY OF THE GOVERNMENT ORDER REVISING THE ALLOTMENT OF MILMA BOOTH/CANTEEN OF MEDICAL COLLEGE.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** ----------------------------------------------- **W.P.(C). Nos.32598, 32957 & 33021of 2016 ----------------------------------------------Dated this the 21[st] day of December, 2016** ## **JUDGMENT** Captioned writ petitions are filed by the petitioners in respect of the action initiated by the 4[th] respondent to invite public tender for running the coffee vending shops in the Medical College Hospital premises, thereby depriving the right of the petitioners to conduct coffee vending shop as per the orders of the Government, and for other related reliefs. 2. The subject issue raised in these writ petitions are materially connected. Therefore, I heard them together and propose to pass a common judgment. Facts and documents discernible from W.P(C) No.32598/2016 are relied upon for disposal of the writ petitions. 3. Material facts are as this; petitioner is a mentally impaired person aged 56 years. He belongs to BPL category. He along with his unmarried sister, who is also suffering from mental illness, is residing in a makeshift house at Vandanam, W.P.(C). No.32598, 32957 & 33021of 2016 of 2 Alappuzha District. Petitioner is also suffering from mental illness to the extent of 50% as certified by the Medical Board, evident from Ext.P1. By virtue of Ext.P3 Government Order, permitting disabled persons to obtain permission for establishing and running coffee vending shops in the premises of the Government offices, institutions and Medical Colleges, petitioner was granted permission for establishing and operating the coffee vending shop in the premises of the Medical College Hospital, Vandanam as per Ext.P8 order. The permission was granted only for a period of one year ending on 23.10.2016. According to the petitioner, petitioner spent nearly Rs.2,00,000/- for establishing the coffee vending shop, borrowing from private money lenders, relatives and friends. However, petitioner could not recoup even a portion of the establishment cost incurred for the coffee shop. 4. Going by the contents of Ext.P3 order, there is no justification for granting permission to the petitioner to conduct the coffee vending machine only for one year. The W.P.(C). No.32598, 32957 & 33021of 2016 of 3 Government of India have passed “The persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter called “the Act”, with avowed objective of bringing the disabled persons to the main stream of the society. But, the State Government is not formulating schemes for implementation of the objective of the Act as envisaged under Section 43 of the said Act. In such circumstances, petitioner approached the respondents seeking permission to start a coffee vending shop in the Vandanam Medical College premises. The request of the petitioner was rejected by the respondents, which was challenged in W.P.(C) No.28299/2012, in which an interim order was passed on 7.2.2014 directing 6[th] respondent to constitute a Medical Board consisting of a Psychiatrist to ascertain the mental condition of the petitioner and also whether petitioner is fit and capable to conduct a food vending outlet/coffee vending service centre in the Medical College premises. In pursuance of the above direction issued W.P.(C). No.32598, 32957 & 33021of 2016 of 4 by this court, 6[th] respondent furnished a medical report suggesting that, petitioner is unfit and incapable of conducting a small business like food vending. Thereafter, the writ petition was disposed of by a judgment dated 10.11.2014, directing the 6[th] respondent to consider the petitioner's request to start a coffee vending shop within the Medical College Premises, Vandanam for a period of six weeks from the date of receipt of a copy of the judgment. But the 6[th] respondent by way of an action taken report rejected the above request of the petitioner stating the reason that, there are already three coffee vending shops, one Milma Bar and two other canteens including one run by the Indian Coffee House in the hospital premises, which is sufficient to cater the needs of the people approaching the hospital. 5. In the meantime, the association of handicapped persons has approached this court by filing W.P.(C) No.4429/2013, praying for a direction, commanding respondents to issue necessary directions to the Principals of W.P.(C). No.32598, 32957 & 33021of 2016 of 5 the Government Medical College Hospitals to allot necessary space for starting Milma booth/refreshment stall/ coffee vending shop on the basis of Ext.P3 Government Order. Above writ petition was disposed of by this court as per Ext.P16 judgment dated 16.12.2014 directing 1[st] respondent to issue directions to all the Medical Colleges in the State to set apart a certain percentage of milma booth/canteens etc. for persons with disability. That apart it is stated that, a direction was also issued clarifying that, any regulation in allotment in respect of the period or otherwise issued for general category shall not bind the reserved category of persons with disability and this has to be considered separately by separate regulation. According to the petitioner, the respondents have not implemented the directions in the judgment in toto. It is also stated that, confining of grant of permission to conduct the coffee vending shop only for one year is discriminatory in the light of Exts.P3 and P7 orders granting permission for establishing and running coffee W.P.(C). No.32598, 32957 & 33021of 2016 of 6 vending shops without assigning any time limit. Petitioner has been issued with a communication dated 5.10.2016 informing that the Hospital Development Committee as well as the Canteen Committee of the Medical College in question has decided to auction the right to conduct the milma booth and coffee vending shops for a period of one year. It was further informed by the 6[th] respondent in the above communication that, the petitioner can also take part in the above auction in accordance with the tender notification. According to the petitioner, Ext.P8 communication issued by the 6[th] respondent is beyond his jurisdiction in the light of Ext.P16 judgment, by which this court directed formulation of a separate regulation in respect of the conduct of the coffee vending shops and milma booths by the disabled persons. It is thus challenging Ext.P8 and for other related reliefs, this writ petition is filed. 6. **W.P.(C) No.32957/2016** Petitioner is a person having disability of 80%, certified by the District Medical Board, T.D. Medical College, W.P.(C). No.32598, 32957 & 33021of 2016 of 7 Alappuzha. By virtue of the privilege of a physically disabled person, 1[st] respondent allotted a coffee vending machine to the petitioner at the hospital campus as per order dated 16.6.2012. Accordingly, the Medical College allotted stall No.482F to the petitioner at a monthly rent of Rs.5,000/-. The income from the coffee booth is the only source for the livelihood of himself and his family, consisting his wife and a son. According to the petitioner, petitioner is unable to find out any other means of livelihood on account of his grave physical disability. Even though, the Government have not fixed any rent for the vending machine, petitioner used to pay the rent fixed by the 3[rd] respondent regularly. The 4[th] respondent Superintendent invited quotations for running four coffee vending shops including that of the petitioner in the Medical College premises for a period of one year. Out of the above said four coffee vending shops, three shops are reserved for differently abled persons. According to the petitioner, by inviting quotation, respondents have left the W.P.(C). No.32598, 32957 & 33021of 2016 of 8 physically handicapped class of persons for inter se open competition, which is per se arbitrary, illegal and unconstitutional in the light of the provisions of the Act referred to above. Claims are made in respect of Sections 42 and 43 of Chapter VII of the Act. It is also submitted that the Act compels the Government to take appropriate action for framing a scheme for providing avocation to differently abled persons. But the State Government have not taken any concrete action in respect of the provisions of the Act. ## 7. **W.P.(C) No.33021/2016** Petitioner is a handicapped person with 50% disability. He was allowed to conduct a coffee vending shop as per the Government Order dated 13.4.2012. According to the petitioner, petitioner raised funds by availing a loan of Rs.50,000/- from a bank to purchase coffee vending machine and other accessories. The income from the coffee shop is the sole source of income to the petitioner and his family. Fifth respondent published a notification inviting open tenders to W.P.(C). No.32598, 32957 & 33021of 2016 of 9 four coffee vending machines installed in the hospital premises, out of which, three are earmarked for differently abled persons. According to the petitioner, the said action on the part of the 5[th] respondent by inviting tenders cannot be sustained under law in view of the specific provisions contained under the Act, 1995 and the appended Rules. 8. A statement is filed by the 4[th] respondent in W.P(C) No.32957/2016 with an adoption memo seeking to adopt the contentions raised therein to all the writ petitions. It is submitted that, 4[th] respondent issued Ext.P4 inviting quotation for running coffee vending machines in the Medical College Hospital at Alappuzha. It is also admitted that, coffee vending shop was allotted to handicapped persons as per Ext.P2 Government Order, but that does not confer any perpetual right on the said persons to continue with the same. As per the directions issued by this court in Ext.P16 judgment, Government revised the existing policy of allotment of milma booth, canteen etc. in the premises of the Medical W.P.(C). No.32598, 32957 & 33021of 2016 of 10 College Hospital, and 1/3[rd] of milma booths/canteens in all the Medical Colleges in the State are reserved to persons with disabilities for two years by conducting auction exclusively for them, evident from Annexure R4(a). In the light of Annexure R4(a), respondents issued Ext.P4 quotation. It is also stated that, petitioners have no vested right to say that, they cannot be displaced by issuing Annexure R4(a) order and subsequent Ext.P4 quotation notice. It is also submitted that, as per the direction of this court, principles of reservation provided under the Act, 1995 has extended to the allotment of coffee shops and thereby State Government decided to reserve 1/3[rd] of the existing booths to differently abled persons. It was accordingly that, Ext.P4 is issued by the respondents. It is also submitted that, reservation provided under the above enactment is not to an individual but to a class. Hence, the petitioner being a physically handicapped person cannot take shelter under Ext.P2 Government Order. It is within the power of the Government to revise the executive orders W.P.(C). No.32598, 32957 & 33021of 2016 of 11 contained in Annexure R4(a) on public interest. It is also stated that, petitioner also can participate in the tender proceedings. Petitioner in W.P.(C) No.33021/2016 has also filed an application seeking amendment of the writ petition, which is also taken note of by this court while disposing of the writ petition. 9. Heard learned counsel for petitioners, learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 10. The predominant contention advanced by learned counsel for petitioners is based on Section 43 of the Act, 1995. Section 43 deals with preparation of schemes for preferential allotment of land for certain purposes. Therein a duty is cast upon the appropriate Governments and local authorities to frame schemes by issuing notification in favour of persons with disabilities for the preferential allotment of land at concessional rate for; ## (a) house W.P.(C). No.32598, 32957 & 33021of 2016 of 12 ## (b) setting up business - (c) setting up of special recreation centers - (d) establishment of special schools - (e) establishment of research centers - (f) establishment of factories by entrepreneurs with disabilities. 11. According to the learned counsel for petitioners, no action is so far initiated by the Government in order to prepare a comprehensive scheme so as to comply with the provisions of Act, 1995. It is also submitted that, Chapter VI deals with employment of persons with disabilities and identification of posts in various establishments, which can be reserved for persons with disabilities. However, circumstances are also pointed out by learned counsel for petitioners to canvass the proposition that, the mandatory requirement put forth under Act, 1995 is not implemented by the State Government. That apart it is contended, the action of the State Government to compel the disabled persons to W.P.(C). No.32598, 32957 & 33021of 2016 of 13 participate in an auction is not expected of under the Act, 1995. The Act envisages a scheme to be prepared by the Government, which will be beneficial to the differently abled persons in order to eke out their livelihood permanently. Having not done so, the State Government is not entitled to cancel the permit granted to the petitioners to conduct the coffee vending machine in the Medical College hospital premises at Vandanam, Allapuzha. 12. Yet another contention advanced is that, the Superintendent of Medical College Hospital is not vested with any power to issue the order inviting tenders dated 26.9.2016, whereby, three coffee vending machine shops are set apart to persons with disability. It is also the contention of the learned counsel that, only the Government is vested with powers to issue any such orders and therefore, the order passed by the 4[th] respondent dated 26.9.2016 inviting tenders cannot be sustained under law. 13. On the other hand learned Senior Government W.P.(C). No.32598, 32957 & 33021of 2016 of 14 Pleader contended that the said order is passed by the 4[th] respondent based on Annexure R4(a) Government Order dated 12.2.2016, whereby orders were issued to all the Medical Colleges in the State of Kerala to set apart 1/3[rd] of milma booths/canteens in all the Medical Colleges in the State to the persons with disabilities for two years by conducting auction exclusively for them. In Annexure R4(a) order, it is categorically stated that, the said order is passed by the Government pursuant to the direction issued by this court in W.P.(C) No.4429/2013 dated 16/12/2014 and therefore, the order issued by the Superintendent of Medical College Hospital inviting tenders is in accordance with law and as per the orders issued by the Government. Therefore, according to the learned Senior Government Pleader, there is no manner of illegality on the part of the 4[th] respondent in inviting tenders. It is also submitted that, three coffee vending machines are set apart to persons with disabilities and the tenders are invited in order to identify the successful person. It is also W.P.(C). No.32598, 32957 & 33021of 2016 of 15 stated that, since a scheme could not be formulated by the Government even though steps are being taken, till such time unless and until an auction is conducted, other persons with disabilities will not get any opportunity to carry on small business to eke out their livelihood. 14. Learned counsel for petitioners have invited my attention to the judgments of the Apex Court in **Jeeja Ghosh and another v. Union of India and others** [(2016) 7 SCC 761], **Southern Petrochemical Industries co. Ltd. v. Electricity Inspector & Etio and others** [(2007) 5 SCC 447], and **National Federation of Blinds, U.P. Branch v. State of U.P** .[AIR 2000 Allahabad 258] to canvass the proposition that, the persons with disabilities should be treated as a different category and all such efforts shall be made to rehabilitate them in order to bring them to the main stream of the society. Taking note of the respective submissions made across the Bar and the principles laid down by the Apex Court in the aforequoted judgments, the sole W.P.(C). No.32598, 32957 & 33021of 2016 of 16 question to be considered is whether any illegality is committed by the 4[th] respondent by inviting tenders from differently abled persons to conduct the three coffee vending machines in the hospital premises of Medical College Hospital, Alappuzha. In my considered opinion, the resources of the State are to be enjoyed by all. Merely because the petitioners were permitted to occupy the space on license conditions in the premises of the Medical College Hospital, that will not in any manner provide with the petitioners a permanent licence to continue in the premises. It is true, as per the provisions of the Act, 1995 the Government shall take necessary steps to rehabilitate the differently abled persons by providing them sufficient opportunity to make out their livelihood by conducting such business. As such, the petitioners as of right is not entitled to put forth a claim to conduct the coffee vending shops in the Medical College premises at Alappuzha. However, I find from Ext.P4 in W.P. (C) No.32957/2016, the tender is invited for conducting the W.P.(C). No.32598, 32957 & 33021of 2016 of 17 coffee vending machines for a period of one year. But, from Annexure R4(a) Government Order dated 12.2.2016, direction was issued to set apart shops for a period of two years. In that view of the matter, I think it is only appropriate that, fresh tender is invited by the 4[th] respondent by issuing appropriate notification showing the period of tender as two years, in accordance with the stipulation made by the State Government as per Annexure R4(a). 15. Taking note of the entire fact situations, I do not find any illegality in the tender invitation made by the 4[th] respondent dated 26.9.2016 and setting apart three coffee vending shops to the persons with disabilities, except the tenure fixed thereunder for a period of one year. However, a fresh tender shall be invited showing the period to conduct the coffee vending machines as two years as per the stipulation contained in Annexure R4(a) Government Order. The same shall be done by the 4[th] respondent within a month from the date of receipt of a copy of this judgment. The W.P.(C). No.32598, 32957 & 33021of 2016 of 18 petitioners, who are already continuing in the premises by virtue of the interim order granted by this court are permitted to continue, till such time the tender proceedings are finalised. I also make it clear that, the petitioners are also at liberty to participate in the tender proceedings. Writ petitions are disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 16.12.2016