OP(KAT).No.98 OF 2019

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942** **OP(KAT).No.98 OF 2019** **AGAINST THE ORDER IN OA NO.485/2018 DATED 05-07-2018 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** **1 THE DISTRICT COLLECTOR, KANNUR-670001,KERALA. 2 THE TAHSILDAR, IRITTY TALUK, IRITTY, KANNUR DISTRICT-670001, KERALA. 3 THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001, KERALA.** **BY GOVERNMENT PLEADER** ## **RESPONDENTS:** **SHALEENA PULAPPADI, W/O.SAJEEV KUMAR, VILLAGE FIELD ASSISTANT, AYYAMKUNNU VILLAGE, IRITTY TALUK, KANNUR DISTRICT, RESIDING AT KARADIYIL HOUSE, ANDALOOR, PALAYAD POST, THALASSERY, KANNUR, KERALA-670001.** **R1 BY ADV. SRI.M.SASINDRAN** ## **OTHER PRESENT:** **SRI.B.VINOD, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 09-02-2021, THE COURT ON 16-02-2021 DELIVERED THE FOLLOWING:** OP(KAT).No.98 OF 2019 2 ## **ALEXANDER THOMAS & T. R. RAVI, JJ.** ---------------------------------------------------- O.P.(KAT) No.98 of 2019 _[arising out of order dated 05.07.2018 in O.A. (Ekm) No.485/2018 of K.A.T., Addl. Bench, EKM]_ ---------------------------------------------Dated this the 16[th] day of February 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the aforecaptioned original petition, filed under Articles 226 & 227 of the Constitution of India are as follows (see page no.7 & 8 of this paper book of this op):- _“For these and other reasons submitted at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to call for the records leading to Exhibit-P4 Order dated 05.07.2018 in OA(EKM) No.485/2018 on the file of the Kerala Administrative Tribunal, Additional Bench, Ernakulam and to set aside the same thereby dismissing the above Original application.”_ 2. Heard Sri.B.Vinod, the learned Senior Government Pleader appearing for the petitioners (the District Collector concerned, the Tahsildar concerned & the State of Kerala) in the original petition/respondents 1 to 3 in the original application and Sri.M.Sasindran, the learned counsel appearing for the sole respondent in the original petition/the sole applicant in the original application before the Tribunal. OP(KAT).No.98 OF 2019 3 3. The sole respondent herein/the original applicant had filed Ext.P-1, O.A. (EKM) No.485/2018 before the Kerala Administrative Tribunal, Ernakulam Bench, with the following prayers (see page No.20 of this paper book):- _“i) To set aside Annexure A6. ii) To command the 1[st] respondent to accommodate the applicant in an office functioning in the ground floor, now available in Pinarayi, Dharmadam and Thalassery Village, considering her physical disability. iii) To declare that the Annexure A6 order of termination is in utter violation of the Right of Persons with Disabilities Act 2016. iv) To declare that the applicant is entitled to continue in service based on the Annexure 2 appointment order. v) Issue any other order or direction as this Hon'ble Tribunal may deem fit in the facts and circumstances of the case. vi) To issue such other appropriate order or direction as this Hon'ble Tribunal deems just and fit in the circumstances of the case.”_ 4. The original applicant, who suffers from 40% permanent loco-motor disability as evident from Anx.A-1, Disability Certificate dated 01.10.2014 issued by the Disability Assessment Board, was sponsored by the Employment Exchange for temporary appointment under Rule 9(a)(i) as Village Filed Assistant in Kannur District based on the requisition sent by the District Collector, concerned. 5. The applicant was sponsored in the open nonpriority quota as is evident from the pleadings in Ext.P-2 reply statement dated 27.02.2018, filed by the 1[st] petitioner herein (District Collector) before the Tribunal. Hence it is clear that OP(KAT).No.98 OF 2019 4 though the applicant was even otherwise entitled to be given the preferential treatment to be considered in the priority quota as she suffers from physical disability, she was considered in the open non-priority quota and she was selected and appointed under Rule 9(a)(i) of KS & SSR in terms of Anx.A-2 order dated 24.11.2017 issued by the District Collector concerned, whereby the applicant has been appointed as Village Field Assistant. 14 applicants were selected and appointed along with the applicant as can be seen from Anx.A-2 order. The applicant was posted in the Ayyankunnu Village Office in Kannur District. The said office was functioning in the first floor of the building and the applicant found it extremely difficult to attend the office by climbing the steps to go to the first floor in view of her serious loco-motor disability. Her case is that on the second day itself she has fallen ill and was hospitalised and pursuant to that she was compelled to seek for 15 days' leave. On regaining of health she went the office to attend the duty but she was not permitted to attend the duty by the respondents in the OA and she had submitted Anx.A-3 application dated 12.01.2018 before the District Collector. The plea made by the applicant in Anx.A-3 application was not considered and on the other hand the OP(KAT).No.98 OF 2019 5 District Collector concerned has issued the impugned Anx.A-6 order dated 21.01.2018, terminating the applicant from service. It is this order at Anx.A-6 that was challenged by the applicant by filing the above O.A. before the Tribunal. The Tribunal had passed interlocutory direction on 22.02.2018, whereby the respondents in the O.A. were directed not to fill up the vacancy that was arisen due to the termination of the service of the applicant and had also sought for report from the respondents in the O.A. as to vacancies are available in other Village offices, where the applicant could be conveniently accommodated. It appears that immediately after issuance of Anx.A-6 order dated 21.01.2018, the respondents in the O.A. had hastily filled up the vacancy caused by the termination of the petitioner from service by appointing another temporary/provisional hand from the same selection list/rank list concerned as per Anx.R-1 (b) order dated 21.01.2018. 6. The stand taken by the respondents in the O.A. is to the effect that by virtue of the stipulations contained in Anx.R-1(a) G.O.(P) No.651/10/Fin. dated 01.12.2010, issued by the competent authority of the State Government in Finance department, a provisional/temporary hand appointed under OP(KAT).No.98 OF 2019 6 Rule 9(a)(i), is only eligible for casual leave at the rate of one day for a month subject to a maximum of 6 days on condition that the number of days of absence from duty including holidays shall not exceed 4 days at a time. The respondents in the O.A. would take shelter under Anx.R-1(a) order in order to justify the issuance of the impugned Anx.A-6 termination order dated 21.01.2018. 7. The Tribunal, after hearing both sides, found that the abovesaid action on the part of the respondents in the O.A. in having terminated the petitioner from service in terms of Anx.A-6 is highly unreasonable and improper. That no effort was made by the District Collector and the other officials concerned to ascertain whether the applicant could be conveniently accommodated in an office where it is functioning in the ground floor so that the case of the applicant would have been easily resolved in that manner. The Tribunal has also taken note of the fact that the applicant had fallen ill and thus constrained to avail leave and that she has asserted that vacancies, in fact, were available in the nearby offices and those Village Offices were functioning in the ground floor of their OP(KAT).No.98 OF 2019 7 respective buildings where the applicant could be accommodated. 8. The Tribunal has placed reliance on the decision of the Apex Court in the case in _**Syed Bashir-ud-din Qadri v. Nazir Ahmed Shah and others**_ [Civil Appeal Nos.22812282 of 2010]. In the abovesaid decision the Tribunal had dealt with the case of a person who suffered from cerebral palsy and who was appointed under a scheme as a teacher and though the appellant therein was placed in the first position, he was not granted appointment as he was physically disable and was not fit for appointment. The Apex Court has held in the said judgment that the case involve a beneficial piece of social legislation which enable persons with disability to live a life of purpose and human dignities and such cases had to be handled with sensitivity and not with bureaucratic apathy and the Apex Court had directed the said appellant be given appointment order. The Tribunal has held that the dictum laid down by the Apex Court in _**Syed Bashir-ud-din Qadri**_ 's case (supra), could be imported to the facts and circumstances of this case. 9. From a reading of the pleadings and materials and circumstances on record, it can be seen from Anx.A-1 disability OP(KAT).No.98 OF 2019 8 certificate that the applicant suffers from 40% loco-motor disability to her lower extremities. Further, the Tribunal has also noted the case of the applicant that she has suffered illness and was hospitalized has not been disputed in any manner by the respondents in the O.A. On the other hand the Tribunal has also noted that item No.3 referred to in Anx.A-6 is a report given by the Tahsildar, Iritty, which says that the 1[st] respondent in the O.A. (District Collector), as per Anx.A-6 has relied on the report by the Tahsildar, Iritty, which is to the effect that the applicant had been admitted to the hospital for an immediate surgery and she could not walk without the assistance of someone else. It is in the light of these aspects that the Tribunal has come to the considered conclusion that the main focus of the respondents in the O.A. was only regarding the functioning of the office and that none had considered the case of the applicant with sensitivity and sympathy which she deserve but has acted with bureaucratic apathy and that the respondents in the O.A. had not shown any concern for a less fortunate human being who was at their mercy for continuation of service. It is in the light of these aspects that the Tribunal has ordered for the quashment of the impugned Anx.A6 termination order and has directed that the applicant be OP(KAT).No.98 OF 2019 9 given appropriate posting order in terms of Anx.A-2 appointment order dated 24.11.2017 in a suitable office in the revenue establishment where she can easily attend to the work without much difficulty, preferably in an office which is functioning in the ground floor. 10. The directions issued by the Tribunal as per the impugned Ext.P-4 final order dated 05.07.2018, rendered in O.A. (EKM) No.485/2018 as contained in the relevant portions of paragraph No.8 & 9 on internal pages 8 & 9 of Ext.P-4 (see pages 53 & 54 of this paper book), which reads as follows:- _“8. ….............Anx.A-6 is liable to be interfered with. Accordingly Anx.A-6 order is set aside._ _9. The first respondent shall call for reports from its subordinate offices in the district as regards existence of vacancies of Village Field Assistants and shall pass appropriate orders thereon provisionally appointing the applicant against the above post. The applicant shall be granted an opportunity of hearing before issuance of final orders and will be permitted to point out the vacancies if any available in the district. The first respondent shall pass appropriate orders thereon within a period of one month from the date of receipt of a copy of this order.”_ 11. After hearing both sides we are of the considered view that the Tribunal cannot be, in any manner, found fault with for having issued the abovesaid directions. The reasonings given by the Tribunal are quite convincing. In a case like this, we are also of the firm opinion that the District Collector being the head of the district administration, should have ascertained OP(KAT).No.98 OF 2019 10 the difficulties of the applicant atleast after receiving Anx.A-3 representation dated 12.01.2018 which is acknowledged as per Anx.A-4 receipt and it should have also been ascertained whether there are any offices which is functioning in the ground floor so that the petitioner could be accommodated there. Even if the posts in those offices were already manned by existing personnel, then the Collector could have easily ordered for the temporary transfer and posting of such an employee so that the applicant could be conveniently accommodated in such an office in terms of Anx.A-2 order dated 24.11.2017, which is only a temporary appointment under Rule 9(a)(i). Such priority steps, in fact, were called for from the part of the District Collector. For reasons not known to us such an approach has not been taken in the instant case, which resulted in injustice and inequity to the applicant. From a reading of Anx.A-2 appointment order it can be seen that the applicant has been included as Sl. No.7 thereof that her date of birth is shown as 20.05.1972 (see page No.24 of this paper book) and that be so, the applicant would have been 47 years of age at the time of the issuance of the impugned Anx.A-6 termination order and she will be now 49 years. The petitioners herein should have also OP(KAT).No.98 OF 2019 11 taken into account the crucial fact, as is admitted by them in paragraph **No.5** of Ext.P-2 reply statement that the applicant though was entitled otherwise to be considered in the priority quota meant of physically disabled candidate was in fact, considered in the open non-priority quota and still she could get selection in terms of Anx.A-3. Taking into account all these aspects, the respondents in the O.A. should not have issued Anx.A-6 termination order. 12. Further, from a reading of Anx.A-3 representation dated 12.01.2018, it can be seen that the applicant has secured M.A. Degree as well as B. Ed. Such a candidate who has crossed all hurdles to secure high educational qualifications should never had been subjected to injustice and inequity as in the instant case. 13. In the light of these aspects we find no grounds whatsoever to interfere with the well considered decision rendered by the Tribunal in this regard. 14. It is for the 1[st] petitioner herein (the District Collector) to ensure that the benefit of Anx.A-2 appointment order dated 24.11.2017, is immediately given to the original applicant so that she is posted without any further delay in an OP(KAT).No.98 OF 2019 12 office where she could conveniently attend duty and the abovesaid directions given by the Tribunal in paragraph No.9 of Ext.P-4 shall immediately be complied with by the petitioners herein, without any further delay, at any rate within 2 weeks from the date of receipt of a copy of this judgment. With these observations and directions the above original petition will stand dismissed. However, we desist from imposing any cost. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R.RAVI, JUDGE** Skk//08022021 OP(KAT).No.98 OF 2019 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**TRUE COPY OF THE OA ALONG WITH ANNEXURES.**| |---|---| |**ANNEXURE A1**|**TRUE COPY OF THE DISABILITY CERTIFICATE**| ||**ISSUED OT THE APPLICANT BY THE DISABILITY**| ||**ASSESSMENT BOARD NO.857/2014.**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER DATED 24.11.2017**| ||**APPOINTING THE APPLICANT AT VILLAGE OFFICE,**| ||**AYYAMKUNNU DCKNR/9637/17-A4**| |**ANNEXURE A3**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**12.01.2018 SUBMITTED BY THE APPLICANT BEFORE**| ||**THE 1ST RESPONDENT DISTRICT COLLECTOR**| |**ANNEXURE A4**|**TRUE COPY OF THE ACKNOWLEDGMENT ISSUED FROM**| ||**THE OFFICE OF THE DISTRICT COLLECTOR ON**| ||**12.01.2018 EVIDENCING RECEIPT OF ANNEXURE A3**| ||**APPLICATION NO.107336/2018/DCKNR**| |**ANNEXURE A5**|**TRUE COPY OF THE REPRESENTATION SUBMITTED BY**| ||**THE APPLICANT BEFORE THE DISTRICT COLLECTOR**| ||**DATED NIL**| |**ANNEXURE A6**|**TRUE COPY OF THE ORDER**| ||**NO.DCKNR/9637/2017/AR(1) DATED 21.01.2018.**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED BY**| ||**THE 1ST PETITIONER HEREIN.**| |**ANNEXURE R1(A) **|**TRUE COPY OF THE G.O.(P)NO.651/10/FIN DATED**| ||**01.12.2010**| |**ANNEXURE R1(B) **|**TRUE COPY OF THE PROCEEDINGS**| ||**NO.DCKNR/9637/2017-A4(2) DATED 21.01.2018**| ||**ISSUED BY THE 1ST RESPONDENT**| |**EXHIBIT P3**|**A TRUE PHOTOCOPY OF THE REJOINDER FILED BY**| ||**THE RESPONDENT HEREIN.**| |**EXHIBIT P4**|**A TRUE COPY OF THE ORDER DATED 05.07.2018 IN**| ||**O.A.(EKM)NO.485/2018.**|