Lijo A Anil v. Principal Secretary, Department of Tourism, Government of Kerala, KTDC Ltd. and Managing Director, Kerala Tourism Development Corporation Ltd.

W.P.(C).No.29087/21 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 WP(C) NO. 29087 OF 2021** ## **PETITIONER:** LIJO A ANIL AGED 19 YEARS S/O. ANILKUMAR, ABHIN NIVAS 348, UZHUNUVILA, VENGANOOR P. O., THIRUVANANTHAPURAM - 695523. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH ## **RESPONDENTS:** 1 PRINCIPAL SECRETARY DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 KERALA TOURISM DEVELOPMENT CORPORATION LTD. REPRESENTED BY ITS MANAGING DIRECTOR, K.T.D.C.LTD., MASCOT SQUARE, VIKAS BHAVAN P. O., THIRUVANANTHAPURAM - 695033. 3 MANAGING DIRECTOR KERALA TOURISM DEVELOPMENT CORPORATION LTD., K.T.D.C.LTD., MASCOT SQUARE, VIKAS BHAVAN P. O., THIRUVANANTHAPURAM - 695033. 2 W.P.(C).No.29087/21 BY ADVS. P.A.AHAMMED THOUFEEK AHAMED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON 15.11.2022 DELIVERED THE FOLLOWING: W.P.(C).No.29087/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(C).No.29087 of 2021** **= = = = = = = = = = = = = = = = Dated this the 15[th] day of November, 2022** ## **JUDGMENT** ## 1. This writ petition is filed with the following prayers:- “1.To issue a writ of certiorari or any other appropriate writ order or direction to quash Exhibits-P7 and P8 on account of non-observation of reservation under Section 34(1) of the Rights of Persons With Disabilities Act, 2016. 2.To issue a writ of mandamus or any other appropriate writ order or direction to respondents to provide reservation for persons with disability for appointment to the post of Assistant Cook in the establishments of 2[nd] respondent dehors Exhibits-P7 and P8.” 2. Heard the learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for respondents 2 and 3. 3. It is submitted that the petitioner is a person suffering from benchmark intellectual disability to a degree of 58%. In spite of his disability, he had passed SSLC with high marks having been permitted to write the examination with a scribe. He had applied W.P.(C).No.29087/21 4 for Food Production course run by the Food Craft Institute. When he was denied admission, he had approached this Court and by order dated 30.9.2020, the respondents were directed to provisionally admit the petitioner to the course for the academic year, 2021. The petitioner completed the course and is working as Cook-trainee in the “Hotel Grand Chaitram” under the respondent. While so, the KTDC invited applications for the post of Assistant Cook in its hotels and resorts. Having the qualifications prescribed, the petitioner applied. It is contended that there is no reservation provided for physically handicapped persons and that the petitioner being the only physically handicapped applicant would be entitled to appointment as Assistant Cook, since he is fully eligible and qualified. He, therefore, seeks quashing of Exhibits P7 and P8 on account of non-observation of reservation under Section 34(1) of the Rights of Persons with Disabilities Act, 2016 and in the alternative seeks appointment to the post of Assistant Cook in pursuance to Exhibits P7 and P8. 4. A counter affidavit has been placed on record by respondents 2 and 3 stating that the 2[nd] respondent is a company registered W.P.(C).No.29087/21 5 under the Companies Act and is focused in the hospitality sector. It is stated that the income of the company is on the basis of business from hotels and resorts and Assistant Cook is a crucial post in view of the activities of the company. It is submitted that since the petitioner has 58% disability, he will not be able to carry out the duties of Assistant Cook. It is submitted that though the petitioner has been working as Cook-trainee at the Grand Chaithram Hotel, Thiruvananthapuram, trainees are not directly interacting with the food production process and that the fact that the petitioner was working as Cook-trainee would not by itself go to show that he is able to carry out the work of Assistant Cook in the KTDC. It is contended that the key duties and responsibilities of Assistant Cook involve various functions, which cannot be effectively carried out by the petitioner, who is a physically challenged person. 5. An additional counter affidavit has also been placed on record stating that the decision with regard to fixing of cut off marks for the written test and skill test is entirely within W.P.(C).No.29087/21 6 the ambit of the management and that more than 50% of the candidates who had appeared for written test and skill test scored 40 and above marks. It is, therefore, contended that the cut off mark of 50% fixed for written test and skill test is perfectly justifiable and that the petitioner who scored only 37 marks is three marks short of the required 40 marks and therefore, he is not eligible for appointment. 6. The learned counsel for the petitioner places reliance on the decision of the Apex Court in **Union of India and another v.National Federation of the Blind and others** [2013 KHC 4816] and of this Court in **Kerala Public Service Commission and another v. E.Dineshan and others** [2016 (2) KHC 910]. 7. I have considered the contentions advanced. Section 33 of the Rights of Persons with Disabilities Act, 2016 provides for the identification of posts. Section 34 provides that 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. The second proviso to W.P.(C).No.29087/21 7 Section 34 provides 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. 8. It is not in dispute that the petitioner is a person with disability. He also has all the required qualifications prescribed for the post of Assistant Cook. He has participated in the selection process and has secured 37 marks out of 80 in the written test and skill test together. He is also presently working as Cook-trainee in one of the hotels of the KTDC. The contentions of the respondents is that the post of Cook has not been identified for appointment of physically handicapped person. It is further contended that the petitioner had secured only 37 marks in the written test and the skill test together and that the cut off marks fixed was 40. It is further contended that the post of Assistant Cook involves higher duties and responsibilities and a person like the petitioner who suffers from 58% intellectual disability will not be able to carry W.P.(C).No.29087/21 8 out the said duties. The learned counsel for the respondents also places reliance on the provision of the Act which permits an exemption for certain establishments from the rigour of the reservation. 9. Having considered the contentions advanced, I notice that the petitioner had been permitted to participate in the selection process on the basis of an interim order of this Court. One post of Assistant Cook also has been kept reserved for accommodating the petitioner if he succeeds in this writ petition. Petitioner is a person who suffers from a benchmark disability. However, in spite of the disability, he has been able to succeed in the SSLC examination as also took successfully complete the Food Production Course conducted by the Food Craft Institute. He is presently working as Cook-trainee under the KTDC itself. ## 10.This Court in **Union of India and another v. National Federation of the Blind and others** [2013 KHC 4816] has held in paragraph 27 as follows:- - “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 W.P.(C).No.29087/21 9 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.” 11.This Court as well as the Apex Court, considering the provisions of the Rights of Persons with Disabilities Act has repeatedly held that the reservation under the provisions of the Act is not dependent on the identification of the post and that the reservation is to be granted in respect of posts which are not found to be unsuitable for being filled up by persons with disabilities. It is not in dispute before me that no order has been passed by the State Government, which is the competent government exempting the 2[nd] respondent from the provisions of the Rights of Persons with Disabilities Act. If that be so, the organisation is duty bound to provide reservation for persons with disabilities. It may be true that the post of Assistant Cook has not been identified for exercise of the reservation for persons with disabilities. However, a person with a benchmark disability cannot be denied public employment only on the ground that the post is not specifically identified and that he did not secure the W.P.(C).No.29087/21 10 cut off marks which are fixed for persons who do not suffer from any disability. Even according to the respondents, the cut off mark fixed is 40 and the petitioner has secured 37 marks without any exemption or relaxation being granted to him. He is also admittedly fully qualified for appointment to the post of Assistant. In the above circumstances, I am of the opinion that a public authority like the 2[nd] respondent cannot be heard to contend that a benefit which would otherwise be available to a person with a benchmark disability and who has competed with persons having no such disability and has come reasonably close to succeeding in the selection process should be denied employment only because there is a possibility that some of the functions to be carried out by him may be difficult for him. 12.From the facts and circumstances of the case and the documents produced, it appears that the petitioner has been able to function perfectly well in spite of his benchmark disability and has competed with persons with no such disability and came within close proximity to obtaining the cut off marks. Since the selection did not provide for any reservation whatsoever, the contention that the petitioner ought to have obtained the cut off marks as W.P.(C).No.29087/21 11 was fixed for persons having no disability at all, cannot be used to deny the petitioner of a benefit that he would otherwise be eligible for. 13.In the facts and circumstances of the case, I am of the opinion that the petitioner is entitled to succeed in this writ petition. The writ petition is accordingly allowed. There will be a direction to the respondents to appoint the petitioner as Assistant Cook in the vacancies set apart following interim orders of this Court. Appropriate orders shall be passed appointing the petitioner within a period of one month from the date of receipt of a copy of this judgment. ## **Anu Sivaraman, Judge** sj W.P.(C).No.29087/21 12 ## **APPENDIX OF WP(C) 29087/2021** PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE S.S.L.C. RESULTS OF PETITIONER IN THE ACADEMIC YEAR 2020. Exhibit P2 THE COPY OF THE CERTIFICATE OF DISABILITY DATED 17.05.2019 AS REGARD THE INTELLECTUAL DISABILITY OF PETITIONER. Exhibit P3 THE COPY OF THE ORDER DATED 30.09.2020 IN I.A.NO.2/2020 IN WP(C) NO.17629/2020. Exhibit P4 THE COPY OF THE CERTIFICATE DATED 10.11.2021 OF THE INDUSTRIAL TRAINING UNDERTAKEN UNDER 2ND RESPONDENT. Exhibit P5 THE COPY OF THE PROVISIONAL MARK LIST OF PETITIONER OF THE EXAMINATION CONDUCTED IN APRIL 2021. Exhibit P6 THE COPY OF THE MEMO DATED 21.11.2021 ENGAGING THE PETITIONER AS COOK TRAINEE FOR A PERIOD OF 1 YEAR AT HOTEL GRAND CHAITHARAM, THAMPANOOR. Exhibit P7 THE COPY OF THE SELECTION ADVERTISEMENT INVITING APPLICATION FOR THE POST OF ASSISTANT COOK BY 2ND RESPONDENT WHICH IS PUBLISHED IN MALAYALA MANORAMA DAILY ON 09.12.2021. Exhibit P8 THE COPY OF THE NOTIFICATION OF SELECTION TO THE POST OF ASSISTANT COOK IN KTDC HOTELS AND RESORTS BRINGING FORTH THE QUALIFICATION AND AGE. Exhibit P9 THE COPY OF THE APPLICATION DATED 25.10.2021 SEEKING INFORMATION UNDER RIGHT TO INFORMATION ACT. W.P.(C).No.29087/21 13 Exhibit P10 THE COPY OF THE INFORMATION DATED 22.11.2021 DIVULGED BY 2ND RESPONDENT. RESPONDENT EXHIBITS Exhibit R3(A) TRUE COPY OF THE LETTER NO. KTDC/PA2/AC/2021 DATED 10/12/2021 FROM THE 3RD RESPONDENT Exhibit R3(B) TRUE COPY OF THE LETTER DATED 09/03/2022 FROM THE PETITIONER TO THE 2ND RESPONDENT PETITIONER EXHIBITS Exhibit P11 TRUE COPY OF THE MEMO DATED 30.3.2022 BY THE 3RD RESPONDENT FOR THE WRITTEN TEST. Exhibit P12 TRUE COPY OF THE MEMO DATED 27.5.2022 BY THE 3RD RESPONDENT CALLING UPON THE PETITIONER FOR INTERVIEW HELD ON 10.6.2022. RESPONDENT EXHIBITS Exhibit R3(c) TRUE COPY OF THE LETTER NO.GC/ESTT/84/2022-23 DATED 4/5/2022 Exhibit R3(d) TRUE COPY OF ORDER IN WP C NO.29087/2021 DATED 4/5/2022 OF THIS HON'BLE COURT Exhibit R3(e) TRUE COPY OF RELEVANT PAGES OF DUTIES AND RESPONSIBILITIES OF AND RESPONSIBILITIES OF AN ASSISTANT COOK True copy PS to Judge