Radhamani R. and others v. Secretary, Department of Social Justice, Secretariat, Thiruvananthapuram; Kerala Water Authority; Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **WP(C).No. 22826 of 2013 (C)** **----------------------------------------** **PETITIONER(S): ----------------------** ## **1. RADHAMANI R,** - **D/O.SADASIVAN, VARAMBITTUVILAVEEDU, KALAKKODU P.O. BHOOTHAKULAM, KOLLAM.** ## **2. ANIKUTTAN S.** - **S/O/SUKUMARA PANICKER, KULATHADI VAYAL VEEDU, POTTAYIL, MALAYINKEEZHU P.O.** ## **3. ROBIN K.M.** - **S/O.MATHEW, KUNNAPPALLIL HOUSE, VATTIYAMTHODE P.O. ULICKAL VIA, KANNUR DISTRICT.** **4. VIJAYALAKZHMI V.C. D/O.VASUDEVAN NAIR, MELVILAKATHU VEEDU, MARUTHATHOOR, CHAIKOTTUKONAM P.O.** ## **5. PRAKASAN K.P.** - **S/O.PRABHAKARAN, NEDIYADATHUKULAM HOUSE, KALLANDICHALLA, NATTUKAL, PALAKKAD.** **6. LIPIN T. RAJAN, S/O.THYAGARAJAN, UTTATHEKKUMKAL HOUSE, THEKKUMKAL P.O. KOTTATHUR, AYROOR, PATHANAMTHITTA.** **7. ANVAR SADATH, PATHATH HOUSE, PONNIAKURSSI PO., PERINTHALAMANNA, MALAPPURAM.** ## **8. SHEMI S.** - **D/O.SUJAHUDEEN, ANSHAD MANZIL, KANJAVELY P.O. KOLLAM.** **9. SHANIFA J. VALIYATHU KIZHAKKATHIL, KANNAKARA BHAGOM, CHAVARA KOLLAM.** **PJ** **...2/-** **..2..** **WP(C).No. 22826 of 2013 (C)** ## **----------------------------------------** **10. HUSSAIN, SAIDALAVI HAJI, MEDAMMAL HOUSE, VANIYANNOOR, IRINGAVOOR P.O., TIRUR VIA, MALAPPURAM.** ## **11.JAYAVANDANA J.M.** **JAYA ABHAVAN, KANJIRAM NINNA KANNIMMATHATTU, MULLUVILA P.O., THIRUVANANTHAPURAM-695 133.** ## **11. RAJIMOL.G. UNNITHIRI PARAMBIL, KAVALKADAVU, KODUNGALLOOR P.O.** ## **12.T.VINOD,** - **S/O.NJANAMUTTAN, VATTAVILA VEEDU, MURIATHOTTAM, PARASSALA P.O.** **BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP** ## **RESPONDENT(S):** **-------------------------** **1. SECRETARY, DEPARTMENT OF SOCIAL JUSTICE, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRIECTOR, VELLAYAMABALAM, THIRUVANANTHAPURAM-695001.** **3. KERALA PUBLIC SERVICE COMMISSION,** - **REPRESENTED BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM-695004.** **R1 BY GOVERNMENT PLEADER SRI.P.V.ELIAS R2 BY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY R3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 22826 of 2013 (C) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1. TRUE COPY OF THE NOTIFICATION IN CATEGORY NO.157/2008 PUBLISHED ON 19/4/2008.** - **EXHIBIT P2. TRUE COPY OF THE INTERVIEW MEMO DTED 27/2/2013 WHICH IS ISSUED TO 4TH PETITIONER.** - **EXHIBIT P3. TRUE COPY OF THE G.O.(P) NO.20/98/P&ARD DATED 11/7/1998.** - **EXHIBIT P4. TRUE COPY OF THE G.O.(P) NO.31/2008/SWD DATED 19/5/2008.** - **EXHIBIT P5. TRUE COPY OF THE G.O.(P) NO.46/2008/SWD DATED 19/7/2008.** - **EXHIBIT P6. TRUE COPY OF THE G.O.(P) NO.8/10/SWD DATED 1/2/2010.** - **EXHIBIT P7. TRUE COPY OF THE G.O.(P) NO.30/2013/SJD DATED 4/4/2013.** - **EXHIBIT P8. TRUE COPY OF THE RANKED LIST FOR THE POST OF TRACER/OVERSEER GRADE-III (STATE WIDE) WHICH CAME INTO EFFECT ON 6/6/2013.** - **EXHIBIT P9. TRUE COPY OF THE INFORMATION DATED 16/8/2013 WHICH IS FURNISHED BY PSC.** **EXHIBIT P10. TRUE COPY OF THE COMMUNICATION DATED 25/11/2013 FROM 2ND RESPONDENT TO GOVERNMENT SEEKING APPROVAL FOR IMPLEMENTATION OF 3% RESERVATION TO THE POST OF TRACER/OVERSEER GRADE-III.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **A.V.RAMAKRISHNA PILLAI, J.** = = = = = = = = = = = = = = = = W.P(C) No.22826 of 2013 = = = = = = = = = = = = = = = = = Dated this the 20[th] day of June, 2014 ## **JUDGMENT** The petitioners who were physically challenged persons in Ext.P9 ranked list published by the P.S.C for selection to the post of Tracer/Overseer Grade III in Kerala Water Authority have approached this Court alleging that the P.S.C is not observing 3% reservation set apart for physically challenged persons, provided under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short, the Act) for the reason that the requisitioning authority did not direct to observe 3% reservation for physically disabled. 2. Pursuant to Ext.P1 notification, it did not exempt any of the three recognised categories of physically handicapped persons, viz. blind, deaf and locomotive disabilities. The petitioners applied to the post of Tracer/Overseer Grade III under the respondent water authority showing their individual disabilities under the three categories. The P.S.C considered the applications and the petitioners participated in the written examination. As their name WP(C).22826/13 ## **-:2:-** figured in the short list, they were called for the interview and were included in Ext.P9 ranked list. 3. The petitioners allege that by Ext.P6 the Government extended the benefit of reservation to the appointments of physically disabled persons to other instrumentalities of State and as envisaged under Section 32 of the Act, the Government reviewed the list of posts identified, and added more posts as suitable for appointment of persons with disability. However, when the petitioner sought information regarding the reasons for non implementation of 3% reservation of physically disabled persons, the P.S.C informed that the requisitioning authority did not direct to conform reservation for physically disabled. It is with this background, the petitioners have approached this Court. 4. In the counter affidavit filed by the P.S.C, it was contended that the Government had ordered that 3% reservation to physically handicapped candidates in the category of posts identified for appointment in the Government departments are extended to the similar categories in the State Public Sector Undertakings/ Autonomous Institutions under the State from 01.02.2010, provided the qualifications be the same. They have stated that the WP(C).22826/13 **-:3:-** post of Tracer/Overseer Grade III has been identified by the Government as suitable, for giving 3% reservation to the physically handicapped persons. But the qualifications for the post of Tracer in the Government departments as well as in the Kerala Water Authority are not the same and by letter dated 8.11.2010 the Managing Director, KWA has informed that the post of Tracer/Overseer Gr. III is not included in the list of posts eligible for 3% reservation to physically handicapped. The Commission by examining this, has taken a decision on 11.10.2012 not to prepare a separate list for 3% reservation to physically handicapped for the post. 5. To this, the petitioner filed a reply affidavit along with Ext.P10 by which the respondent water authority had taken a decision to implement 3% reservation to the post of Tracer/ Overseer Grade III in its 336[th] meeting, decision No.9657, and sought approval of the Government in this regard. 6. Arguments have been heard. 7. Admittedly, the Government by Ext.P6 extended the benefit of reservation to the appointments of physically disabled persons to other instrumentalities of the State. However, as rightly WP(C).22826/13 ## **-:4:-** pointed out by the learned counsel for the petitioners the right of reservation of physically handicapped does not stem from Ext.P6, but from Section 33 of the Act. It was argued that the post of Tracer/Overseer Grade III born out of the cadre of Kerala Water Authority could not be kept out of the purview of reservation, contemplated under Section 33 of the Act on the premise that the qualifications prescribed for the post are not identical with that of the similar post in Government departments. In support of the argument, the learned counsel for the petitioners invited my attention to Ext.P10 by which, the respondent water authority has informed the Government that the authority has decided to implement 3% reservation to the post of Tracer/Overseer Grade III in its 336[th] meeting as decision No.9657 and sought approval in that regard. 8. In this context, it is relevant to have a look at Section 33 of the Act, which reads as follows: “ **Reservation of posts** .- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or class or class of persons with disability of which one per cent each shall be reserved for persons suffering from(i) blindness or low vision; - (ii) hearing impairment; WP(C).22826/13 ## **-:5:-** ## (iii) locomotor disability or cerebral palsy, in the posts identified for each disability Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section” 9. A plain reading of Section 33 would reveal that it establishes the intention of the legislature, viz. reservation of 3% differently abled persons should be computed on the basis of total vacancies in the cadre strength and not on the basis of the vacancy available in the identified post. The Apex Court in **Union of India and Another** v. **National Federation of the Blind and Others** [(2013) 10 Supreme Court Cases 772] observed that there is no ambiguity in the language in Section 33 and from the construction of the said statutory provision, only one meaning is possible. Therefore, the extension of reservation as above cannot be delayed on the ground that the post has not been identified. 10. Though there is a whisper in the argument advanced by the learned counsel for the respondents that the post of Tracer/ Overseer Grade III in the Kerala Water Authority is not identical with the post of Tracer/Overseer Grade III in Public works Department and Local Self Government, the same does not hold WP(C).22826/13 **-:6:-** good in the light of Ext.P10. The Kerala Water Authority as well as the P.S.C are legally precluded from contenting that the three categories of physically disabled are unfit to hold the post in the wake of providing all the three categories in the ranked list. If they are eligible for appointment in the normal channel, they cannot be found unsuitable for reservation. Therefore, this Court is of the definite view that the petitioners are entitled to get the relief prayed for. In the result, the Writ Petition is allowed. Respondents 1 to 3 are directed to provide 3% reservation for the three categories in Ext.P3 ranked list, in terms of Ext.P7 Government order. Formal orders to this effect shall be passed by the respondent concerned within a period of two months from the date of receipt of a copy of this judgment. To facilitate early action, it would be open to the petitioner to produce a copy of this judgment along with necessary documents before the respondents within one month from today. Sd/- ## **A.V.RAMAKRISHNA PILLAI JUDGE** krj