OP(KAT) Nos. 434 & 511 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** **OP(KAT) NO. 434 OF 2019** **AGAINST THE ORDER DATED 12-3-2019 IN OA 1177/2017 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** ## **PETITIONERS/RESPONDENTS 1 & 2 IN O.A :** - **1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695001.** - **2 PRINCIPAL SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001.** - **BY SR.GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY** ## **RESPONDENTS/APPLICANT & RESPONDENTS 3 TO 5 IN O.A :** - **1 AGIMON K.P., KAIPPANAL HOUSE, PAINGOTTOOR P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT, KERALA - 686 671.** - **2 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, KERALA - 695 004.** - **3 SALI RAJ S., AGED 35 YEARS, S/O.M.SHAJAHAN, RESIDENT OF SHAJI MANZIL, VALACODE P.O., PUNALUR, KOLLAM - 691 331, PH 994778770,** - **(ADDL. R4 IS IMPLEADED AS PER ORDER DATED** - **25/7/2017 IN M.A.2122/2017), KERALA.** O.P (KAT) Nos. 434 & 511 of 2019 2 **4 AMBILY K.RAJU, AGED 39 YEARS, D/O.M.C.RAJAPPAN, AMBADY, VALIYA PARAMBATH, CHEVAYOOR P.O., KOZHIKODE - 17, PIN - 673 017, (ADDL. 5TH RESPONDENT IS IMPLEADED AS ORDER 4/10/18 IN M.A.1265/2018 IN O.A.1077/2017), KERALA.** **BY ADVS. SRI.B.RAGHUNATHAN FOR R1 SHRI.P.C.SASIDHARAN, SC, KPSC FOR R2 SRI.C.UNNIKRISHNAN (KOLLAM) FOR R3 SRI.P.SATHEESH KUMAR (S-3441) FOR R4 SRI.M.SALIM SRI.SANJAY JOHNSON FOR R3 SRI.K.JALADHARAN SRI.V.M.JACOB DR.STANLY CHAZHOOR** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31.01.2022, ALONG WITH OP(KAT).511/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) Nos. 434 & 511 of 2019 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943** **OP(KAT) NO. 511 OF 2019** **AGAINST THE ORDER DATED 12-3-2019 IN OA 1177/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** ## **PETITIONER/3RD RESPONDENT :** **KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN-695004, KERALA.** **BY ADV SRI.P.C.SASIDHARAN, SC, KPSC** ## **RESPONDENTS/APPLICANT & RESPONDENTS 1, 2, 4 & 5 :** - **1 AGIMON K.P., KAIPPANAL HOUSE, PAINGOTTOOR.P.O., KOTHAMANGALAM, ERNAKULAM, KERALA-686671.** - **2 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-685001.** - **3 PRINCIPAL SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** O.P (KAT) Nos. 434 & 511 of 2019 4 **4 SALI RAJ.S., AGED 35 YEARS, S/O.M.SHAJAHAN, RESIDENT OF SHAJI MANZIL, VALACODE.P.O., PUNALUR, KOLLAM-691331, PH.994778770, KERALA.** **5 AMBILY.K.RAJU, AGED 39 YEARS, D/O.M.C.RAJAPPAN, AMBADY, VALIYA PARAMBATH, CHEVAYOOR.P.O., KOZHIKODE, PIN-673017.** **BY ADVS. SRI.B.RAGHUNATHAN FOR R1 SRI.M.SALIM SRI.P.SATHEESH KUMAR (S-3441) FOR R5 SHRI.ADARSH S.FOR R5 SRI.K.JALADHARAN FOR R1 SRI.V.M.JACOB FOR R1 DR.STANLY CHAZHOOR FOR R1 R2 & R3 BY SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31.01.2022, ALONG WITH OP(KAT).434/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) Nos. 434 & 511 of 2019 5 # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **============================= O.P(KAT) No.434 of 2019** ## _&_ ## _**O.P(KAT) No.511 of 2019**_ _(Arising out of the impugned final order dated 12-03-2019 in O.A No.1177 of 2017 on the file of the KAT, Tvm.)_ _**=============================**_ Dated this the 31[st] day of January, 2022 ## **JUDGMENT** ## **ALEXANDER THOMAS, J** The Kerala Administrative Tribunal as per the impugned final order dated 12.03.2019 in O.A No.1177/2017 filed by the 1[st] respondent in these O.Ps, has held that the non-advising of the original applicant as against one among the six vacancies reported by the appointing authority to the Kerala Public Service Commission on 29.06.2017, is illegal and that therefore, since all the vacancies have already been utilized for advice of other candidates, the appointing authority was directed to report two more substantive vacancies to the PSC for effectuating proper compliance of the interim order dated 27.06.2017 issued by the Tribunal, by showing the date of occurrence of the vacancies as 29.06.2017 and that the PSC shall advise the remaining physically handicapped candidates from Annexure-A6 revised ranked O.P (KAT) Nos. 434 & 511 of 2019 6 list, within six weeks, etc. 2. Aggrieved by the abovesaid final verdict rendered by the Tribunal disposing of the above O.A as above, the Kerala Public Service Commission has filed the aforementioned O.P(KAT) No.511 of 2019 and the State of Kerala and the Departmental Officers concerned have filed the abovesaid O.P(KAT) No.434 of 2019. 3. Heard Sri.P.C.Sasidharan, learned Standing counsel for the Kerala Public Service Commission appearing for the petitioner in O.P(KAT) No.511 of 2019/R3 in the O.A as well as respondent No.2 in O.P(KAT) No.434 of 2019, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in O.P(KAT) No.434 of 2019 and official respondent Nos.2 & 3 in O.P(KAT) No.511 of 2019, Sri.B.Regunathan, learned Advocate appearing for R1 in these O.Ps (original applicant) and Sri.P.Satheesh Kumar, learned counsel appearing for contesting respondent No.5 in O.P(KAT) No.511 of 2019. In the nature of the orders proposed to be passed by this Court in these cases, notice to contesting respondent No.4 in O.P(KAT) No.511 of 2019 will stand dispensed with. 4. The original applicant is a Graduate in Law and is an enrolled practicing Advocate and suffers from physical disability having permanent orthopaedic disability of 85%, as evident from O.P (KAT) Nos. 434 & 511 of 2019 7 Annexure A1. He had responded by submitting an application for selection and appointment to the post of Assistant Public Prosecutor Grade - II (“APP Grade - II” for short) (Category No. 266/2011), in pursuance of the selection notification issued in that regard by the Kerala Public Service Commission and he was also duly included in the ranked list published by the P.S.C on 20-03-2014. It appears that the abovesaid post of APP Grade II, was not initially identified by the competent authority of the State Government in terms of the provisions contained in the Central enactment as suitable for appointment of disabled candidates and the said process was completed by the State Government only after the issuance of the selection notification vide G.O(P) No.74/2013/SJD dated 09-09-2013. At that time, the P.S.C had taken the stand that, since the abovesaid post was not identified as suitable for the appointment of disabled candidates at the time of issuance of the selection notification dated 29-07-2011, advice and appointment on the basis of such lateral reservation, as per the said Central enactment is not legally feasible. Further, it appears that prior to the abovesaid selection on the basis of the selection notification dated 29-07-2011 issued by the PSC, the selection and appointment to the post of APP Grade - II was entrusted exclusively to the competent authority of the State Government in the O.P (KAT) Nos. 434 & 511 of 2019 8 Home Department and the Selection process was entrusted to the PSC only subsequently, on the basis of which the abovesaid selection notification dated 29-07-2011 was issued. 5. Aggrieved by the non-consideration of disabled candidates for appointment in the lateral reservation quota from amongst candidates included in the above selection process, the applicant herein had earlier filed an Original Application as O.A No.1507 of 2014 before the Tribunal, in which the Tribunal allowed the main plea by declaring that the PSC is bound to implement the provisions contained in GO(P) No.74/2013/SJD dated 09-09-2013 for appointment to the post of APP Grade - II. Accordingly, there is no dispute that a separate ranked list was published by the PSC by including the eligible disabled candidates. The Tribunal in para No.17 of the previous verdict in O.A No.1507 of 2014 had held that, in view of the declaration of law made by the Apex Court in the decisions as in _**Govt. of India & Anr. v. Ravi Prakash Gupta & Anr., [(2010) 7 SCC 626],**_ once a post is even subsequently identified as suitable for appointment of disabled candidates as per the provisions of the abovesaid Central Act, then it would relate back to the date of coming into force of the said Act, viz., 07-02-1996, etc. Thereafter, the applicant had yet another grievance that the percentage of his disability was not duly and properly O.P (KAT) Nos. 434 & 511 of 2019 9 assessed, which led to his instituting yet another Original Application as O.A No.1718 of 2016 before the Tribunal, which was disposed of as per Annexure - A2 final order dated 12-04-2017 in that O.A, whereby R3 therein was directed to consider the disability certificate produced by the applicant as Annexure - A1 therein and to allot due marks to him based on the said certificate and include his name at the proper place in the ranked list without affecting the advice already effected. It is a common ground that the PSC had thereafter published a revised ranked list as per Annexure- A6 dated 23-06-2017, wherein the applicant has been duly included as rank No.4A in the said special ranked list for disabled candidates. 6. In the present O.A, it appears that the stand taken by the appointing authority was that there cannot be any further vacancies to be reported to the PSC, for appointment of candidates included in the ranked list in question, etc. The applicant contended that going by the backlog vacancies, it should have been utilized for lateral reservation of disabled candidates, inasmuch as more than 218 vacancies have already been filled up from the commencement of the appointment process to the post of APP Grade II. At least 6 vacancies will be available in the disability quota and that the Tribunal may issue directions to the appointing authority to report such 6 vacancies to the O.P (KAT) Nos. 434 & 511 of 2019 10 PSC well before the expiry of the ranked list on 29-06-2017, etc. The Tribunal had then issued an interim order dated 27-06-2017 directing that 6 vacancies in the post of APP Grade II shall be reported by the appointing authority to the PSC, so that the requisition report in respect of the said 6 vacancies for disabled candidates would reach the PSC office before the expiry of the ranked list on 29-06-2017. It is also relevant to note that, at that time, the Government had also issued GO(P) No.8/2017/SJD dated 06-05-2017 ordering that the turn of the physically disabled candidates for advice and appointment from the PSC ranked list, which was hither to as against the turn Nos.33, 66 and 99, will thereafter be made as against turn Nos.1, 34 and 67. It appears that the competent authority of the State Government had then taken a decision to sanction and create 10 more posts of APP Grade II and accordingly, GO(Ms) No.137/2017/Home dated 29-06-2017 was issued ordering the creation of 10 posts of APP Grade II. It so happened that the appointing authority, viz., the State Government, had then submitted a vacancy requisition report, reporting the said 10 vacancies to the PSC on 29-06-2017. From the pleadings and materials on record, it appears that the Government had not then taken note of the interim order dated 27-06-2017, issued by the Tribunal, directing that 6 vacancies should be reported O.P (KAT) Nos. 434 & 511 of 2019 11 provisionally to the PSC so that the vacancy requisition report in that regard would reach the PSC office before the expiry of the rank list on 29-06-2017. Since the abovesaid vacancy requisition report made by the State Government on 29-06-2017 in regard to the abovesaid 10 vacancies created by G.O(Ms) No.137/2017/Home dated 29-6-2017 had not specifically mentioned that the said vacancy requisition report is made for compliance of the directions issued by the Tribunal, as per interim order dated 27-06-2017, the competent authority of the Public Service Commission had utilized all the abovesaid 10 vacancies so reported on 29-06-2017, for advising candidates from the general ranked list. 7. The Tribunal, after hearing both sides, has held that the abovesaid action on the part of the State Government in not adhering to the abovesaid interim order passed by the Tribunal on 27-06-2017 is illegal and that the Government should have made it clear that 6 out of the abovesaid 10 vacancies created as per GO(Ms) No.137/2017/Home dated 29-06-2017 would form part of the 6 vacancies covered by the interim order dated 27-06-2017, which was meant for the protection of the rights and interests of the disabled candidates included in the special ranked list. The Public Service Commission had also taken the stand that since the validity of the O.P (KAT) Nos. 434 & 511 of 2019 12 ranked list has already expired on 29-06-2017 and all the pending vacancies have already been utilized for advice and appointment of candidates included in the general ranked list, no further relief could be claimed by the applicant. Based on the materials, the Tribunal noted that at least 218 vacancies should have been utilized for appointment ever since the commencement of the appointment process to the post of APP Grade II, presumably taking into account the facts and figures prior to the entrustment of the selection process to the PSC, and at a time when the selection processes were being done directly by the State Government, and that therefore, going by the 3% reservation mandated in the Central enactment, at least 6 vacancies should have been utilized as backlog vacancies, for advising and appointing physically disabled candidates. The Tribunal has also noted that the first candidate included in the special ranked list for disabled candidates as Annexure - A3 was already appointed in the open competition turn and rank No.2, Smt.Rajin Baby and rank No.3, Smt.V.S.Resmi were already advised and appointed and that rank No.4, Smt.P.Seema, though was advised, had not joined duty. Hence, the Tribunal noted that only two disabled candidates included in the abovesaid ranked list alone have been advised and appointed. Since the original applicant was duly included in the revised Annexure - A6 O.P (KAT) Nos. 434 & 511 of 2019 13 special ranked list as rank No.4A, the Tribunal found that the next eligible candidate to be advised in the disabled turn is the original applicant. It also appears that contesting respondent No.5 in O.P(KAT) No.511 of 2019 had got herself impleaded as an additional respondent in the instant O.A No.1177 of 2017 and she was arrayed as contesting respondent No.5 in O.A No.1177 of 2017 and that she has been ranked immediately below the original applicant, in the revised special ranked list as per Annexure - A4 and that since at least 6 vacancies have been duly reported and taking into account the backlog vacancies, not only the original applicant but also the contesting respondent No.5, should be advised for appointment as APP Grade II in the disability quota since their rank numbers are rank No.4A and rank No.5 respectively in Annexure - A6 revised special ranked list, etc. 8. Presumably, to accommodate the claim of not only the original applicant, but also contesting respondent No.5, the Tribunal has directed that since all the 10 vacancies reported by the Government notification have already been utilized, the Government should report 2 more substantive vacancies to the PSC so that candidates included in Annexure - A6 revised ranked list could be duly advised and appointed in the disability quota. It is the abovesaid O.P (KAT) Nos. 434 & 511 of 2019 14 verdict of the Tribunal that is under challenge in these Original Petitions. 9. After hearing both sides, we are of the view that the main conclusion arrived at by the Tribunal that the original applicant is legally deserved to be advised and appointed on account of the inclusion in Annexure - A6 revised ranked list, cannot be seriously found fault with. However, procedurally, there cannot be any necessity for the Tribunal to direct the State Government to report 2 more substantive vacancies to the PSC. For effectuating proper reliefs to the original applicant and contesting respondent No.5, it has to be borne in mind that the ranked list had already expired on 29-06-2017 and it is an elementary position of law, that if subsequent vacancies are reported after the expiry of the said ranked list, then, ordinarily, candidates included in the said time expired ranked list cannot be considered for advice and appointment on account of the inclusion in such ranked list. However, we are of the strong view that the main conclusion arrived at by the Tribunal, for upholding the right of the original applicant, is not liable for any inference at the hands of this Court. The only issue to be resolved by this Court is as to the procedural modality for effectuating the said right crystallized in favour of the original applicant. There is no dispute, that consequent O.P (KAT) Nos. 434 & 511 of 2019 15 to the revision of the special ranked list, the applicant has been duly included as rank No.4A in Annexure - A6 revised ranked list. In view of the factual aspects found by the Tribunal and mentioned hereinabove, all the other 4 candidates above the original applicant need not be considered for advice and appointment, for the reasons already stated herein above. The Tribunal, has found that at least 218 vacancies could have been utilized for the appointment process and therefore for ordering the 3% lateral reservation quota meant for disabled candidates as mandated by the Act of the Parliament, at least 7 vacancies could have been utilized as backlog vacancies. True, that the abovesaid post of APP Grade II was not formally found to be suitable for appointment of disabled candidates at the time of issuance of the instant notification dated 29-07-2011. However, it is common ground that later, none other than the competent authority of the State Government in the Social Justice Department has issued GO(P) No.74/2013/SJD dated 09-09-2013 ordering that the abovesaid post of APP Grade II is found suitable for the appointment of disabled candidates for the categories mentioned therein, but only for the sub category of orthopedically disabled candidates. There is no dispute that the original applicant is suffering from orthopedic permanent disability to the tune of 85%, as can be seen from Annexure - A1, etc. O.P (KAT) Nos. 434 & 511 of 2019 16 The contention of the official respondents in the O.A that the benefit of GO(P) No.74/2013/SJD dated 09-09-2013, will only be prospective and can be made effective only for selection notifications issued on or after 09-09-2013, is not tenable and sustainable in law. The law in that regard is no longer _res integra_ and is fully covered in favour of the petitioner. The Apex Court in the decision in _**Government of India & Anr. v. Ravi Prakash Gupta & Anr.[(2010) 7 SCC 626]**_ has held that it is the legal duty of the competent authority of the respondent State Government to take a decision on the issue of deciding as to whether the various posts in question are suitable for the appointment of disabled candidates and if so, for which all sub categories. Merely because there may be bureaucratic administrative delay on the part of the appropriate Government to finalize the abovesaid process of identification of suitability, for suitability posts of disabled candidates, it does not mean that the right conferred to them as per the Act of the Parliament can be deprived. The Parliament had initially enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 [Central Act 1 of 1996] which came into force on 07-02-1996. Hence, it has been held in the abovesaid decisions, that once a post is found as suitable for the appointment of disabled candidates, then the benefit thereof would O.P (KAT) Nos. 434 & 511 of 2019 17 relate back to the date of enforcement of the Act and therefore it is the obligation of the appointing authority to ensure that backlog vacancies are also duly honoured for such lateral reservation process. A Division Bench of this Court in the judgment dated 06-01-2016 in W.A No.362 of 2015 has held as follows in para 13 thereof : _“ 13. Going by the ratio of the decision of the Apex Court in Ravi Prakash Gupta's case (supra), the vacancies which were in existence in the case of the recruitment in question in W.A.No.362 of 2015 would have to be considered as existing vacancies as on the date of the notification issued by the KPSC. In that view of the matter, no question of backlog vacancies or filling up of the same by resorting to a special recruitment would arise in the instant case. Therefore, in view of the unassailed factual findings that the contesting respondent would be entitled to appointment, if the 3% of vacancies from 1.1.2004 to 31.12.2007, which were liable to be kept apart for physically handicapped persons, were filled up from the supplementary list, the contention that a special recruitment has to be made in respect of those vacancies fails, since such vacancies can be considered as current vacancies. Since the filling up of the vacancies could have been taken up only after the identification of the posts by the Government, the vacancies could be deemed to have arisen after such identification. Therefore, they can be considered as having arisen during the currency of Exhibit P3 list and therefore liable to be filled up therefrom. Even otherwise, since after the identification of the posts a process of selection having been carried out by the KPSC for the purpose of publishing Exhibit P3 list, Exhibit P3 list, which was intended only to fill up the vacancies of physically handicapped candidates, can be reckoned as being a list published pursuant to a special recruitment for the purpose of the persons with disabilities Act. We also find that the provisions of Rule 15(a) and Rule 17A of Part II KS&SSR have no strict application to the case on hand in view of the fact that specific provisions contained in the 1995 Central enactment govern the appointments of physically disabled persons. The reservation of posts and the mode in which such reservation is to be worked out having been set forth in the Act which has been interpreted by the Apex Court by binding precedents, we are of the considered opinion that the judgments under appeal have only followed the law laid down on the point. ”_ 10. Going by the ratio of the decision of the Apex Court in _**Raviprakash Gupta’s**_ case supra, once the post is identified for lateral reservation, then it relates back and there is no necessary for special recruitment for filling the backlog vacancies and the existing ranked list in question can be utilized for that purpose. O.P (KAT) Nos. 434 & 511 of 2019 18 11. Hence, it is well settled that there is no necessity for any special recruitment for the filling up of the backlog vacancies and the same can be done by advising and appointing candidates included in the special ranked list of physically disabled candidates, finalized in pursuance of the selection notification issued for finalization of general ranked list for the post in question. It is also pertinent that the abovesaid decision has been reiterated by the Apex Court in decisions as in _**Union of India & Anr. v. National Federation of the Blind & Ors. [(2013)10 SCC 772]**_ . Hence, in the light of the abovesaid factual aspects and indisputable legal position, the Tribunal’s finding that at least 7 vacancies should have been utilized as backlog vacancies for the lateral reservation of disabled candidates, is not amenable for any interdiction at the hands of this Court. The Tribunal has issued an interim order dated 27-06-2017 in the instant O.A No.1177 of 2017, that 6 vacancies in the post of APP Grade II shall be reported by the State Government to the Kerala Public Service Commission, so that the said vacancy requisition report reaches the PSC office well before the expiry of the abovesaid ranked list on 29-06-2017. The said interim order has been passed by the Tribunal for taking care of the rights and interests of disabled candidates like the original applicant included in Annexure A6 revised special ranked O.P (KAT) Nos. 434 & 511 of 2019 19 list. It appears that by then the competent authority of the State Government in the Home Department had issued GO(Ms) No.137/2017/Home dated 29-06-2017, ordering the creation of 10 more posts of APP Grade II and without due application of mind, the vacancy requisition report was sent by the State Government to the PSC, reporting those 10 vacancies as a general requisition, which admittedly has reached the PSC’s office on 29-06-2017, which is well before the expiry of the ranked list. Since the interim order was passed by the Tribunal on 27-06-2017, there could have been some communication gap as between the law officers and the State Government. That may be understandable. However, after coming to know about the abovesaid interim order dated 27-06-2017, the competent authority of the State Government should have immediately sent a clarificatory report to the PSC intimating that the abovesaid 10 posts of APP Grade II are inclusive of the abovesaid 6 vacancies directed to be reported for disabled quota to the PSC provisionally as per interim order dated 27-06-2017. If that had been done by the Government, then the impropriety would not have arisen and necessary directions would have been issued for honouring the rights and interests of disabled candidates like the appellant. For reasons not known to us, the said simple and straight forward O.P (KAT) Nos. 434 & 511 of 2019 20 procedure was not adopted by the State Government. In view of the said legally wrong stand of the State Government, the PSC has advised candidates as against all the 10 said vacancies reported on 29-06-2017 from among the candidates included in the general ranked list. Hence, all the abovesaid 10 vacancies have been exhausted. It is indisputable that, if at least one vacancy had been available in the disability quota, then the original applicant being rank No.4A, as the next eligible candidate, would have secured advise and appointment to the post of APP Grade II. Hence, there is no doubt that the advice and appointment has been deprived to the original applicant, who is a disabled candidate suffering permanent orthopedic disability to the tune of 85%, only on account of the abovesaid illegality and impropriety committed by the State Government. That does not mean that the said right of the applicant cannot be enforced in these litigative proceedings. We are of the firm view that, in view of the legal injury suffered by the original applicant, he deserves a legal remedy in the matter. Merely because the ranked list has expired, it cannot be the end of the road for the Court to mould the relief appropriately to ensure that the rule of law is upheld and justice is duly rendered to the applicant who has suffered miscarriage of justice on account of the abovesaid illegality and impropriety. O.P (KAT) Nos. 434 & 511 of 2019 21 12. Sri.P.Satheeshkumar, learned counsel appearing for respondent No.5, would point out that his party is the next candidate, who is legally entitled to get advice and appointment on account of her inclusion as rank No.5 in Annexure A6 revised special ranked list. It has to be borne in mind that R5 in the O.A/R5 in this O.P has never initiated any litigative proceedings for indicating her rights in the present round. It appears that the counsel for R5 in the O.P would submit that his party was an original applicant before the Tribunal in one of the previous rounds of litigative proceedings initiated before the Tribunal, and that in the instant O.A proceedings she had got herself impleaded as additional respondent No.5 therein and that therefore, the direction issued by the Tribunal that two candidates included in the special rank list should be advised, etc. may not be interfered by this Court etc. In the facts and circumstances of the case, we are of the view that granting such a relief to a party, who is not an original applicant before the Tribunal, but only an additional respondent therein may not be right and proper. After hearing both sides, we are of the firm view that for a cause of action of this nature and since the rank list has already expired, a party like the contesting respondent No.5 in the original petition should have approached the Tribunal as an applicant. However since the rank list has expired and O.P (KAT) Nos. 434 & 511 of 2019 22 the abovesaid complex situation has now arisen, to excise our discretion to grant relief to an additional respondent in the O.A, in the facts and circumstances of the case, may not be the right and proper course of action. Things would have been completely different, if at least 2 vacancies out of the 6 vacancies, were reported for the disabled quota. However, we make it clear that R5 in the O.A may approach the Kerala Public Service Commission and the State Government in the Home Department for ventilating her grievances and she is also at liberty to approach the Tribunal by filing an original application, which then may be considered in accordance with law. All contentions of either side in that regard are left open to be raised and decided in such appropriate proceedings in the manner known to law. We also make it clear that the time spent by the abovesaid party in the prosecution of the O.A and this O.P may be excluded in terms of Section 14 of the Limitation Act for the purpose of reckoning the period of limitation in instituting any proceedings before the Tribunal. 13. Accordingly, it is ordered that the competent authority of the State Government will immediately issue orders, granting out of turn appointment to the original applicant as APP Grade II, by notionally treating that he is advised as against one among the abovesaid 6 vacancies covered by the interim order dated 27-06-2017 O.P (KAT) Nos. 434 & 511 of 2019 23 or one among the 10 vacancies referred to in GO(Ms) No.137/2017/Home dated 29-06-2017, and orders of appointment in that regard shall be granted in favour of the original applicant, within six weeks from the date of receipt of a copy of this judgment. For that purpose, there is no necessity for the PSC to issue any formal advice memo in that regard and equally there is no necessity to report 2 substantive vacancies, as directed by the Tribunal. However, it is made clear that if subsequently substantive vacancies have already arisen in the post of APP Grade II, then it is for the Government to deal with the matter in accordance with law. We make it clear that the last candidate advised by the PSC as against the abovesaid 10 vacancies covered by GO(Ms) No.137/2017/Home dated 29-06-2017, may be adjusted as against a subsequent vacancy, etc. Those are all matters within the internal domain of the Government and that cannot take away the right crystallized in favour of the original applicant and hence it is reiterated that in any view of the matter, the State Government in the Home Department is legally obliged to issue orders granting out of turn appointment to the original applicant as APP Grade II, and orders of appointment in that regard in favour of the original applicant should be issued within the abovesaid outer time limit of six weeks from the date of receipt of a copy of this judgment. O.P (KAT) Nos. 434 & 511 of 2019 24 The directions and orders of the Tribunal as per the impugned final verdict rendered on 12-03-2019 in O.A No.1177 of 2017 will stand modified to the limited extent as above. With these observations and directions, the above original petitions will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** **Sd/-** **VIJU ABRAHAM, JUDGE** amk O.P (KAT) Nos. 434 & 511 of 2019 25 ## **APPENDIX OF OP(KAT) 434/2019** ## **PETITIONERS' EXHIBITS :** **EXHIBIT P1 TRUE COPY OF O.A.NO.1177/2017 ALONG WITH EXHIBITS. EXHIBIT P1(A1) TRUE COPY OF DISABILITY CERTIFICATE DATED 21/01/2015 ISSUED BY THE MEDICAL BOARD TALUK HEADQUARTERS HOSPITAL, KOTHAMANGALAM. EXHIBIT P1(A2) TRUE COPY OF THE ORDER DATED 12/04/2017 IN OA 1718 OF 2016. EXHIBIT P1(A3) TRUE COPY OF THE ADDENDUM NOTIFICATION (RANK LIST) DATED 15/10/2016 OF THE PH CANDIDATES FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GRADE-II. EXHIBIT P1(A4) TRUE COPY OF THE REPRESENTATION DATED 28/04/2017. EXHIBIT P1(A5) TRUE COPY OF THE APPOINTMENT CHART FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GRADEII ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 27/06/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P3 TRUE COPY OF M.A.NO.2122/2017 FILED BY 3RD RESPONDENT HEREIN IN THE ORIGINAL APPLICATION. EXHIBIT P4 TRUE COPY OF REPLY STATEMENT FILED BY THE 1ST PETITIONER HEREIN IN THE ORIGINAL APPLICATION. EXHIBIT P5 TRUE COPY OF M.A.NO.1265/2018 FILED BY THE 4TH RESPONDENT HEREIN IN THE ORIGINAL APPLICATION.** O.P (KAT) Nos. 434 & 511 of 2019 26 |**EXHIBIT P6**|**TRUE COPY OF REPLY STATEMENT FILED BY**| |---|---| ||**ADDITIONAL 5TH RESPONDENT ALONG WITH**| ||**EXHIBITS**<br>**HEREIN**<br>**IN**<br>**THE**<br>**ORIGINAL**| ||**APPLICATION.**| |**EXHIBIT P6(R1)**|**TRUE COPY OF GO(MS) NO.165/2006/HOME DATED**| ||**26/09/2006.**| |**EXHIBIT P6(R2)**|**TRUE COPY OF GO(MS) NO.44/2001/HOME, DATED**| ||**27/02/2001.**| |**EXHIBIT P6(R3)**|**TRUE COPY OF GO(MS) NO.214/2002/HOME, DATED**| ||**26/12/2002.**| |**EXHIBIT P6(R4)**|**TRUE COPY OF GO(MS) NO.36/2003/HOME, DATED**| ||**15/02/2003.**| |**EXHIBIT P6(R5)**|**TRUE COPY OF GO(MS) NO.175/2006/HOME, DATED**| ||**16/10/2006.**| |**EXHIBIT P6(R6)**|**TRUE COPY OF GO(MS) NO.180/2006/HOME, DATED**| ||**27/10/2006.**| |**EXHIBIT P6(R7)**|**TRUE COPY OF GO(MS) NO.119/2007/HOME, DATED**| ||**31/5/2007.**| |**EXHIBIT P6(R8)**|**TRUE COPY OF GO(MS) NO.203/2007/HOME, DATED**| ||**25/08/2007.**| |**EXHIBIT P6(R9)**|**TRUE COPY OF GO(MS) NO.237/2007/HOME, DATED**| ||**23/10/2007.**| |**EXHIBIT P6(R10) **|**TRUE COPY OF GO(MS) NO.269/2007/HOME, DATED**| ||**27/11/2007.**| |**EXHIBIT P6(R11) **|**TRUE COPY OF GO(MS) NO.06/2008/HOME, DATED**| ||**5/01/2008.**| |**EXHIBIT P6(R12) **|**TRUE COPY OF GO(MS) NO.35/2008/HOME, DATED**| ||**23/02/2008.**| |**EXHIBIT P6(R13) **|**TRUE COPY OF GO(MS) NO.74/2008/HOME, DATED**| ||**16/05/2008.**| |**EXHIBIT P6(R14) **|**TRUE COPY OF GO(RT) NO.3558/2008/HOME,**| ||**DATED 21/11/2008.**| |**EXHIBIT P6(15)**|**TRUE COPY OF GO(MS) NO.64/2009/HOME, DATED**| ||**22/05/2009.**| O.P (KAT) Nos. 434 & 511 of 2019 27 **EXHIBIT P6(R16) TRUE COPY OF GO(MS) NO.98/2009/HOME, DATED 19/06/2009.** **EXHIBIT P6(R17) TRUE COPY OF GO(MS) NO.274/2010/HOME, DATED 18/12/2010.** **EXHIBIT P6(R18) TRUE COPY OF GO(MS) NO.267/2013/HOME, DATED 24/10/2013.** **EXHIBIT P6(R19) TRUE COPY OF GO(RT) NO.2611/2013/HOME, DATED 25/09/2013.** **EXHIBIT P6(R20) TRUE COPY OF THE DETAILS OF ADVICE FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GRADEII AS SHOWN IN THE WEBSITE PAGE OF KERALA PUBLIC SERVICE COMMISSION.** **EXHIBIT P6(R21) TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL IN CP.NO.43/2017 IN OA.NO.2499/2016 DATED 28/09/2018.** **EXHIBIT P7 TRUE COPY OF REJOINDER FILED BY THE APPELLANT ALONG WITH EXHIBITS HEREIN IN THE ORIGINAL APPLICATION.** **EXHIBIT P7(A6) TRUE COPY OF ADDENDUM NOTIFICATION NO.SS VI/APPGR.II/KSPPS/2014/GW DATED 23/06/2017 ISSUED BY 3RD RESPONDENT.** **EXHIBIT P8 TRUE COPY OF ORDER DATED 12/03/2019 IN OA 1177/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** O.P (KAT) Nos. 434 & 511 of 2019 28 ## **APPENDIX OF OP(KAT) 511/2019** ## **PETITIONER'S ANNEXURES :** **EXHIBIT P1(A1) TRUE COPY OF THE DISABILITY CERTIFICATE DATED 21.1.2015 ISSUED BY THE MEDICAL BOARD TALUK HEAD QUARTERS HOSPITAL, KOTHAMANGALAM. EXHIBIT P1(A2) TRUE COPY OF THE ORDER DATED 12.4.2017 IN OA.NO.1718 OF 2016. EXHIBIT P1(A3) TRUE COPY OF THE ADDENDUM NOTIFICATION (RANK LIST) DATED 15.10.2016 OF THE PH CANDIDATES FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GR-II. EXHIBIT P1 TRUE COPY OF THE O.A.NO.1177 OF 2017 WITH ITS ANNEXURES. EXHIBIT P1(A4) TRUE COPY OF THE REPRESENTATION DATED 28.4.2017. EXHIBIT P1(A5) TRUE COPY OF THE APPOINTMENT CHART FOR THE POST OF ASSISTANT PUBLIC PROSECUTOR GR-II ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER DATED 27.6.2017. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN THE O.A. EXHIBT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN THE O.A. EXHIBIT P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 5TH RESPONDENT. EXHIBIT P5(R1) TRUE COPY OF THE G.O.(MS)NO.165/2006/HOME DATED 26.9.2006. EXHIBIT P5(R2) TRUE COPY OF THE G.O.(MS)NO.44/2001/HOME DATED 27.2.2001. EXHIBIT P5(R3) TRUE COPY OF THE G.O.(MS)NO.214/2002/HOME DATED 26.12.2002.** O.P (KAT) Nos. 434 & 511 of 2019 29 **EXHIBIT P5(R4) TRUE COPY OF THE G.O.(MS)NO.36/2003/HOME DATED 15.2.2003. EXHIBIT P5(R5) TRUE COPY OF THE G.O.(MS)NO.175/2006/HOME DATED 16.10.2006. EXHIBIT P5(R6) TRUE COPY OF THE G.O.(MS)NO.180/2006/HOME DATED 27.10.2006. EXHIBIT P5(R7) TRUE COPY OF THE G.O.(MS)NO.119/2007/HOME DATED 31.5.2007. EXHIBIT P5(R8) TRUE COPY OF THE G.O.(MS)NO.203/2007/HOME DATED 25.8.2007. EXHIBIT P5(R9) TRUE COPY OF THE G.O.(MS)NO.237/2007/HOME DATED 23.10.2007.** **EXHIBIT P5(R10) TRUE COPY OF THE G.O.(MS)NO.269/2007/HOME DATED 27.11.2007. EXHIBIT P5(R11) TRUE COPY OF THE G.O.(MS)NO.06/2008/HOME DATED 5.1.2008. EXHIBIT P5(R12) TRUE COPY OF THE G.O.(MS)NO.35/2008/HOME DATED 23.2.2008. EXHIBIT P5(R13) TRUE COPY OF THE G.O.(MS)NO.74/2008/HOME DATED 16.5.2008. EXHIBIT P5(R14) TRUE COPY OF THE G.O.(MS)NO.3558/2008/HOME DATED 21.11.2008. EXHIBIT P5(R15) TRUE COPY OF THE G.O.(MS)NO.64/2009/HOME DATED 22.5.2009. EXHIBIT P5(R16) TRUE COPY OF THE G.O.(MS)NO.98/2009/HOME DATED 19.6.2009. EXHIBIT P5(R17) TRUE COPY OF THE G.O.(MS)NO.274/2010/HOME DATED 18.12.2010. EXHIBIT P5(R18) TRUE COPY OF THE G.O.(MS)NO.267/2013/HOME DATED 24.10.2013. EXHIBIT P5(R19) TRUE COPY OF THE G.O.(MS)NO.2611/2013/HOME DATED 25.9.2013.** O.P (KAT) Nos. 434 & 511 of 2019 30 |**EXHIBIT P5(R20)**|**TRUE COPY OF THE DETAILS OF ADVICE FOR THE**| |---|---| ||**POST OF ASSISTANT PUBLIC PROSECUTOR GR.II**| ||**AS SHOWN IN THE WEBSITE PAGE OF KERALA**| ||**PUBLIC SERVICE COMMISSION.**| |**EXHIBIT P5(R21)**|**TRUE COPY OF THE ORDER OF THE HON'BLE**| ||**ADMINISTRATIVE TRIBUNAL IN CP.NO.43/2017**| ||**IN O.A.NO.2499/2016 DATED 28.10.2018.**| |**EXHIBIT P6**|**TRUE COPY OF THE REJOINDER FILED BY THE**| ||**APPLICANT TO THE REPLY STATEMENT FILED BY**| ||**THE RESPONDENTS 1 AND 3.**| |**EXHIBIT P6(A6)**|**TRUE COPY OF THE ADDENDUM NOTIFICATION**| ||**NO.SS VI/APP GR.II/KSPPS/2014/GW DATED**| ||**23.6.2017 ISSUED BY 3RD RESPONDENT.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER IN O.A.NO.1177/2017**| ||**DATED 12.3.2019.**|