## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_
## _`PRESENT`_
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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
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&
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THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
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TUESDAY, THE 25[TH] DAY OF JULY 2023 / 3RD SRAVANA, 1945
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## _`OP(KAT) NO. 99 OF 2023`_
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OA 237/2023 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
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## _`PETITIONER/APPLICANT`_
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SWAPNA GOPINATHAN,
AGED 40 YEARS
W/O MANOJ. P.D, PUTHENPURAYIL PADEETTATHIL,
OLAKETTIYAMBALAM P.O., MAVELIKKARA, ALAPPUZHA ., PIN -
690510
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BY ADVS.
KALEESWARAM RAJ
THULASI K. RAJ
CHINNU MARIA ANTONY
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## _`RESPONDENTS/RESPONDENTS`_
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1STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT
OF LOCAL SELF GOVERNMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3DIRECTOR OF URBAN AFFAIRS,
DIRECTORATE OF URBAN AFFAIRS, SWARAJ BHAVAN,
NANTHANCODE, KAWDIAR P. O, THIRUVANANTHAPURAM, PIN -
695003
4KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE
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OP(KAT).99/2023
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COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN - 695004
5DISTRICT OFFICER,
KERALA PUBLIC SERVICE COMMISSION, RING ROAD,
THAZHEVETTIPRAM, PATHANAMTHITTA, PIN - 689645
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## _`OTHER PRESENT:`_
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SRI. P.C.SASIDHARAN-SC
SRI. SAIGI JACOB PALATTY-SR. GP
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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME
UP FOR ADMISSION ON 25.07.2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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OP(KAT).99/2023
..1..
## ALEXANDER THOMAS & C.JAYACHANDRAN, JJ.
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## O.P.(KAT).No.99 of 2023
(arising out of the impugned final order dated 15.2.2023 in O.A.No.237/2023 on the file of the KAT, Tvm Bench)
------------------------------------------------------------------------Dated this the 25[th] day of July, 2023
## JUDGMENT
## A lexander Thomas, J.
The aforecaptioned Original Petition is directed against the impugned Ext.P2 final order rendered on 15.02.2023 by the Kerala Administrative Tribunal, Thiruvananthapuram Bench, dismissing the instant Original Application, O.A.No.237 of 2023. The petitioner herein is the applicant in the O.A and the respondents herein are the respondents in the O.A.
2. Heard Smt.Thulasi K.Raj, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1 to 3 and Sri.P.C.Sasidharan, learned Standing Counsel appearing for the Kerala Public Service Commission, appearing for R4 and R5.
3. The prayers in the instant Ext.P1/Original Application, O.A.237 of 2023 are as follows:-
“i. To declare that the 1[st] respondent to pass order stating that one
OP(KAT).99/2023
..2..
vacancy in the post of Junior Health Inspector, Grade-II in the Municipal Common Service Department is not liable to be set apart for the physically handicapped candidate and the applicant is entitled to be advised and appointed to the said vacancy.
ii. To declare that the applicant is entitled to be advised as an open candidate against the vacancy now set apart for Differently Abled Candidates.
iii. To direct the respondents to pass orders stating that one vacancy in the post of Junior Health Inspector Grade-II in the Municipal Common Service Department is not liable to be set apart for the physically handicapped candidates as done in Annexure-A4 and as requested for in Annexure-A6.
iv. To direct the 4[th] respondent to advise the applicant to the post of Junior Health Inspector Grade-II in the Municipal Common Service Department and to direct the 2[nd] respondent to appoint the applicant to the said post.
v. To direct the 1[st] respondent to consider and pass orders on Annexure-A6 representation, within a time frame to be fixed by this Hon’ble Tribunal after hearing the applicant.”
4. As mentioned herein above, the Tribunal, after hearing both
sides, rendered Ext.P2 final order dated 15.02.2023, dismissing the above O.A. A brief reference to the facts of the case will be pertinent. The petitioner had responded to the selection notification issued by the
OP(KAT).99/2023
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Kerala Public Service Commission for selection and appointment to the post of Junior Health Inspector (Gr.II) in the Municipal Common Service Department. According to her, she came out successful in the selection process and is duly included in Annexure-A2 rank list dated 18.12.2019, finalized by the PSC, the validity of which has expired on 17.12.2022. The specific case of the petitioner is that one vacancy in Differently Abled (DA) quota was reported during the currency of the list and that no eligible candidate was available and the said vacancy has not been utilized and has been carried forward for next recruitment of eligible DA candidates. Further that, the competent authority of the State Government in the Social Justice Department, had earlier issued G.O.(P).No.101/2014/SJD dated 20.12.2014, under Section 32 of the Rights of Persons with Disabilities Act, 1996 and has identified the above said post of Junior Health Inspector (Gr.II), as suitable for lateral reservation of candidates in the disabled quota and that loco-motor disability/Cerebral Palsy and hearing impaired candidates are eligible for the said lateral reservation. But further that, the Government has subsequently taken the stand in Annexure-A4/Government Letter No. 342/C2/2017/H&FWD dated 22.2.2018 that the DA candidates are not eligible to attend the Diploma in Health Inspectors Course, which is to be undergone by candidates who are selected as Junior Health Inspector.
OP(KAT).99/2023
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Further, Government has taken the stand in Annexure-A4 letter dated 22.02.2018 that the Government will take steps to apprise the PSC that the DA candidates need not be appointed to the post of Junior Health Inspector (Gr.II). It is on the basis of Annexure-A4 Government letter that the petitioner would contend that the pending vacancy now said to be reported in the DA quota, should not be utilized for lateral reservation of DA candidates and should be utilized for General Recruitment. Further that since the said vacancy has been reported before the expiry of the rank list on 17.12.2022, the same is to be utilized for advising the next eligible candidates in Annexure-A2 rank list dated 18.12.2019 and that the petitioner claims that she is the next eligible candidate for advice from Annexure-A2 rank list. That it is well settled in the light of Rule 14 of the Kerala Public Service Commission Rules of Procedure that, so long as a vacancy is reported during the currency of the rank list, then notwithstanding the expiry of the rank list, the said vacancy can be utilized for advice of candidates included in the said rank list. It is on this basis that the petitioner would contend that directions may be issued to the respondent/PSC to ensure that the said vacancy, which was initially reported in the DA quota, is utilized for advice and appointment of candidates in Annexure-A2 rank list, in the General Recruitment process.
OP(KAT).99/2023
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5. Earlier the petitioner had preferred another Original Application before the Tribunal which was disposed of as per AnnexureA5 order dated 14.12.2022 in O.A.No.2093 of 2022, holding that the post of Junior Health Inspector (Gr.II) has already been identified as suitable for appointment of DA candidates, in terms of the above said Act, as per the above referred Government order, G.O.(P).No.101/2014/SJD dated 20.12.2014, and so long as the said G.O is not withdrawn by the State Government on the basis of the recommendations of the Expert Committee as envisaged in the above said Act, there is no question of utilizing that vacancy for any purpose other than for advising and appointing a candidate in the DA quota. It is thereafter, that the petitioner has preferred the instant Ext.P1/O.A.No.237 of 2022 with the aforesaid prayers.
6. Based on the directions issued by this Court, the respondent/Government has filed affidavit dated 4.7.2023 in which it has been stated in para No.4 thereof, as to the factual situation on the basis of which the Government had issued Annexure-A4 Government letter dated 22.02.2018. In para No.5 of the said affidavit, the Government has stated that the above said act of the Health Department in issuing Annexure-A4 Government letter is quite inadvertent and regretted for the adverse effect on the DA candidates and that
OP(KAT).99/2023
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Government has taken steps to amend the prospectus for Diploma in Health Inspector Course for the academic year 2023-2024 in accordance with the provisions contained in G.O.(P).No.101/2014/SJD dated 20.12.2014. In other words, it can be seen that the sheet anchor of the case of the petitioner is on the basis of Annexure-A4 Government letter dated 22.02.2018 in which, Government has stated that the DA candidates are not eligible for admission to the above said qualifying course, and that the Government will take steps to inform the PSC that the DA candidates need not be advised and need not be appointed to the post of Junior Health Inspector (Gr.II) etc. Now, the very substantial foundation of the case is affected, inasmuch as the Government has taken the stand in terms of para No.5 of the affidavit (supra) that their previous action in issuing Annexure-A4 Government letter was inadvertent and that it has caused adverse consequences to the DA candidates and that they have taken steps to amend the prospectus for the Diploma in Health Inspectors course for the academic year 20232024, in accordance with the provisions contained in G.O. (P).No.101/2014/SJD dated 20.12.2014. Hence, there is no question of this Court issuing any direction to the authorities to utilize the above said vacancy in question reported in the DA quota to advice candidates from Annexure-A2 rank list in the General Recruitment process.
OP(KAT).99/2023
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7. True, the learned counsel for the petitioner raised certain contentions regarding the reasonings given by the Tribunal in Ext.P2 verdict. We make it clear that, we do not fully agree with the reasonings given by the Tribunal in Ext.P2 verdict, but we are in full concurrence with the conclusion drawn by the Tribunal in the said verdict. In other words, petitioner has not made out a case that she has a legal right to demand that the above said vacancy in question, reported in the DA quota, should be utilized for advising candidates in Annexure-A2 rank list in the General recruitment process.
With these observations and directions, the OP(KAT) will stand dismissed.
Sd/-
## ALEXANDER THOMAS
JUDGE
Sd/-
C.JAYACHANDRAN JUDGE
Mrcs
OP(KAT).99/2023
..8..
## _`APPENDIX OF OP(KAT) 99/2023`_
- _`PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE NOTIFICATION DATED 26.12.2014 IN CATEGORY NO. 571/2014 IN THE POST OF JUNIOR HEALTH INSPECTOR GRADE II IN THE MUNICIPAL COMMON SERVICE DEPARTMENT.`_
- _`Annexure A2 TRUE COPY OF THE RANKED LIST NO. 629/19/SS ILL FOR THE POST OF JUNIOR HEALTH INSPECTOR GRADE II IN THE MUNICIPAL COMMON SERVICE DEPARTMENT, PATHANAMTHITTA DISTRICT.`_
- _`Annexure A3 TRUE COPY OF THE APPOINTMENT CHART RANKLIST NO.629/19/III DATED 18.12.2019`_
- _`Annexure A4 TRUE COPY OF LETTER NO. 342/C2/2017 /DHS DATED 22.02.2018 ISSUED BY THE 1ST RESPONDENT.`_
- _`Annexure A5 TRUE COPY OF THE ORDER DATED 14.12.2022 IN OA 2093/2022 BEFORE THE HON'BLE TRIBUNAL,THIRUVANANTHAPURAM`_
- _`Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 07.01.2023 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE APPLICANT.`_
- _`Exhibit P1 TRUE COPY OF THE MEMORANDUM OF THE OA NO.237/2022 ALONG WITH ITS ANNEXURES`_
- _`Exhibit P2 TRUE COPY OF THE ORDER DATED 15.02.2023 IN 0.A.NO.237 OF 2023.`_
