Renjith K.R. v. Chief Engineer, Engineering Department, Manacad u P.O, Kamaleswaram, Thiruvananthapuram; Superintendent Engineer, Harbour Engineering Department, North Zone, Puthiya Nirathu, Elathur P.O, Kozhikode -6; Kerala Public Service Commission; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 1[ST] DAY OF APRIL 2022/11TH CHAITHRA, 1944** ## **OP(KAT) NO. 381 OF 2021** **AGAINST THE ORDER IN M.A.(EKM) NO.781/2020 IN O.A.(EKM) NO.2817/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM** ## **BENCH** ## **PETITIONER/APPLICANT:** **RENJITH K.R., AGED 49 YEARS, S/O. K.P. RAVEEDRANATHAN, PLOT NO. 18, PRIYADARSHINI NAGAR, PARAVATTANI, OLLUKKARA VILLAGE, THRISSUR EAST, THRISSUR DISTRICT, PIN - 680005.** **BY ADV. SRI.P.R.SHAJI** ## **RESPONDENTS/RESPONDENTS:** - **1 CHIEF ENGINEER, ENGINEERING DEPARTMENT, MANACADU P.O, KAMALESWARAM, THIRUVANANTHAPURAM - 695009.** - **2 SUPERINTENDENT ENGINEER, OFFICE OF THE SUPERINTENDENT OF ENGINEER, HARBOUR ENGINEERING DEPARTMENT, NORTH ZONE, PUTHIYA NIRATHU, ELATHUR P.O, KOZHIKODE -6.** - **3 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PSC OFFICE, PATTOM PALACE P.O, THIRUVANANTHAPURAM - 695004.** - **4 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R1, R2 & R4 SRI.P.C.SASIDHARAN, STANDING COUNSEL FOR R3** **THIS OP(KERALA ADMINISTRATIVE TRIBUNAL) HAVING BEEN FINALLY HEARD ON 01.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(KAT) No. 381 of 2021 ..2.. ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. -------------------------------------------------------------------------O.P.(KAT) No. 381 of 2021 _(arising out of the impugned order dated 1.12.2021 in M.A. (Ekm) No.781/2020 in O.A.(Ekm) No. 2817/2017 on the file of the KAT, Ekm Bench)_ --------------------------------------------------------------------------Dated this the 1[st] day of April, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the instant Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India are as follows: “ - _(a) set aside G.O.(MS) No.27/2021/SJD dated Thiruvananthapuram 24.11.2021, contained in Ext.P9 statement to proceeds with M.A. (EKM) No. 781/2020 in O.A (EKM) No.2817/2017._ - _(b) to declare that G.O.(MS) No.27/2021/SJD dated Thiruvananthapuram 24.11.2021 is unsustainable in law since the same is issued in violation of the dictums laid down in various decisions of the Hon'ble Supreme Court of India and the Hon'ble High Court of Kerala and the provisions of RPWD Act and Annexure A8 in Ext.P1 and liable to be quashed and quash it._ - _(c) to issue a writ of mandamus or other appropriate writ order or direction, directing the third respondent to issue advice memo to the petitioner on the basis of the Ext.P3 G.O._ - _(d) to pass such other and further orders as are deemed fit, just and necessary in the facts and circumstances of the case.”_ 2. Heard Sri.P.R.Shaji, learned counsel appearing for the petitioner in the O.P./original applicant, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for respondents 1, 2 & 4 and Sri.P.C.Sasidharan, learned Standing Counsel for O.P.(KAT) No. 381 of 2021 ..3.. the Kerala Public Service Commission, appearing for the 3[rd] respondent. 3. From a reading of the prayers in the instant O.P., it is seen that no relief has been claimed by the petitioner herein/original applicant for interdicting with any decision or order passed by the Kerala Administrative Tribunal, Ernakulam Bench. However, from the tone and tenor of the submissions of the petitioner, it appears that his main complaint is that the Tribunal should not have closed Ext.P-4 M.A. (Ekm) No.781/2020 filed by him in the disposed O.A.(Ekm) No.2817/2017 by passing order in the nature of Ext.P-11 dated 1.12.2021. 4. Earlier, the petitioner herein had filed Ext.P-1 Original Application O.A.(Ekm) No. 2817/2017 before the KAT, Ernakulam Bench, with the following prayers: “ _iv. To declare that applicant is the eligible candidate to be got the advice memo first for appointment to vacancy notified in Annexure-A3._ _v. Quash the advice memo issued to any candidate for appointment to vacancy notified in Annexure-A3. vi. Cancel the appointment if any made in the vacancy notified in Annexure-A3 vii. Direct the 3[rd] respondent to issue advice memo to the applicant to fill the vacancy notified in Annexure-A3 viii. Issue such other reliefs as this Honourable Tribunal may deem fit, just and proper in the light of the facts and circumstances of the case.”_ O.P.(KAT) No. 381 of 2021 ..4.. 5. The Tribunal, after hearing both sides, has rendered Ext.P-2 common final order dated 4.6.2019 in the instant O.A.(Ekm) No.2817/2017 and another connected matter in O.A.(Ekm) No.679/2018, wherein the following directions have been given in para 19 thereof : _“19. Since the various orders identifying the posts, as noted above, including Annexure A8 providing new turns at Sl.Nos.1, 34 and 67 are issued by the Government that too based on the report of the expert committee, we are of the view that definitely this is a matter for the Government itself to take a decision. As we have already discussed above, by referring to the examples in respect of certain posts, specification of categories, namely among three PH categories is not uniform in respect of all the posts. The order by which they are shown is not uniform, namely it is not low vision, hearing impairment and locomotor disability/cerebral palsy or locomoor disability/cerebral palsy, low vision and hearing impairment in all cases where the posts have been identified for filling up three categories. Already by Annexure A7 produced in O.A.(Ekm.) No.679 of 2018, the issue has been referred to the Government in the Social Justice Department. It is therefore a matter to be looked into by the Government itself for issuing appropriate clarification, especially since learned counsel for the applicants point out that the object of the enactment will have to be gone into. There will be a direction to the Principal Secretary to Government, Social Justice Department to take a decision in the matter after hearing the applicants as expeditiously as possible, at any rate within a period of three months from the date of receipt of a certified copy of this order. Annexure A6 order produced in O.A.(Ekm.) No.679 of 2018 is accordingly set aside. Thereafter the decision will be communicated to the applicants as well as the Public Service Commission. The applicants will communicate a certified copy of this order to the Principal Secretary to Government, Social Justice Department so as to comply with the above directions.”_ 6. Later, it appears that as per Ext.P-2 final order in the above O.A., the Tribunal has only directed that the Government should consider the issues projected by the original applicant and O.P.(KAT) No. 381 of 2021 ..5.. then take a decision thereon within 3 months. Thereafter, the Government, in compliance with the directions issued by the Tribunal as per Ext.P-2 verdict in O.A.(Ekm) No. 2817/2017, has passed Ext.P-3 G.O.(MS) No.5/2020/SJD dated 11.2.2020 issuing the following directions on internal pages 7 & 8 thereof which read as follows: _“i) The KPSC shall appoint Sri. Renjith. K.R (S/o K.P Raveendra nathan, Plot No.18, Priyadarsini Nagar, Paravathani, Ollukkara, Thrissur East, Thrissur, Kerala - 680005), who is included as rank No. 1 in the supplementary list for Locomotor Disability / Cerebral Palsy, in the post of Assistant Engineer (Electrical) in Harbour Engineering Department from the existing rank list No.742/17/SSM (category no. 36/2015 dated 28.03.2015) published on 07.08.2017 against the post kept vacant for blind candidate._ _ii) The KPSC shall appoint Smt. Haridevi. P, (NLRA 385, Neerazhi Lane, Ulloor Medical College PO, Thiruvananthapuram), who is included as rank No. 1 in the supplementary list for Locomotor Disability/ Cerebral Palsy, in the post of Laboratory Technician Gr. II in the Indian Systems of Medicine from the existing rank list no 828/17/SS 11 (category no 216/2013 dated 31.7.2013) published on 23.08.2017 against the post kept vacant for hearing impaired candidate._ _The above order is issued subject to the following conditions:_ _i. The vacancy reserved for blind candidate in Assistant Engineer in the Harbour Engineering Department during this recruitment year, shall be passed over to the same category in the next recruitment year._ _ii. The vacancy reserved for hearing impairment candidate in Laboratory Technician Gr. II in the Indian Systems of Medicine Department during this recruitment year, shall be passed over to the same category in the next recruitment year._ _The combined order dated 04/06/2019 of the Hon'ble KAT in OA (EKM)2817/17 & 679/2018 filed by Sri.K.R.Renjith & Smt.Haridevi.P respectively are thus complied with.”_ O.P.(KAT) No. 381 of 2021 ..6.. 7. It appears that the respondent Kerala Public Service Commission (PSC) has taken the stand that the Government had not consulted the PSC before the issuance of Ext.P-3 G.O. and further that a direction in the nature of Ext.P-3 issued by the Government so as to direct the PSC to workout the advise process of the ranked list in question in the manner directed in Ext.P-3, is not legally tenable. Thereafter, it appears that the Government has passed Ext.P-10 G.O.(MS) No.27/2021/SJD dated 24.11.2021, whereby the following orders are passed at paras 8 & 9 thereof, as follows: _“8. Government have examined the matter in detail. The matter of providing appointment to Sri.Renjith K R, by invoking Rule 39 of KS&SSR was also examined. The Personnel and Administrative Reforms Department has also opined that giving appointment to the applicant invoking Section 39 of KS&SSR by overruling Section 34(2) of the Rights of Persons with Disabilities Act 2016 is not legally possible. Also, it cannot be considered as giving employment to one particular person will set a precedent for other such cases. In the circumstances, considering the advice of KPSC, the remarks of Law department and the remarks of P&AR department, Govt. order read as 2[nd] paper above issued in compliance of Common order dated 4.6.2019 in OA(EKM) 2817/2017, OA(EKM) 679/2018 filed before Hon. Kerala Administrative Tribunal is cancelled and the prayers of the applicant in OA(EKM) 2817/2017 is OA(EKM) 679/2018 are hereby rejected._ _9. The Combined order dated 4.6.2019 in OA(EKM) No: 2817/2017, OA(EKM) No: 679/2018 filed before Hon. Kerala Administrative Tribunal by Sri Renjith K R and Smt Heridevi P respectively and the Interim Order dated 25.10.2021 in MA(EKM) 781/2020 in OA(EKM) No:2817/2017 filed by Sri Renjith K R, before the Honourable Kerala Administrative Tribunal are complied with accordingly.”_ O.P.(KAT) No. 381 of 2021 **==> picture [18 x 9] intentionally omitted <==** 8. A reading of para 8 of Ext.P-10 would indicate that the Government has ordered that the matter of providing appointment to the original applicant herein Sri.K.R.Renjith, by invoking Rule 39 of the Kerala State and Subordinate Services Rules, 1958 [KS & SSR] was also examined, and that the Personnel and Administrative Reforms Department of the State Government has opined that giving appointment to the applicant herein by invoking Rule 39 of KS & SSR Part II, by overriding Sec.34(2) of the Rights of Persons with Disabilities Act, 2016, is not legally possible. Further, the said plea of the applicant cannot be considered as giving employment to one particular person will set a precedent for other such cases, and that considering the advice of the PSC and the remarks of the Law Department and that of the Personnel and Administrative Reforms Department, Ext.P-3 G.O.(MS) No.5/2020/SJD dated 11.2.2020 [which was earlier issued in compliance with Ext.P-2 verdict of the Tribunal] will stand cancelled, and that the prayer of the original applicant Sri.K.R.Renjith will stand thereby rejected, etc. 9. Sri.P.R.Shaji, learned counsel appearing for the O.P.(KAT) No. 381 of 2021 ..8.. petitioner/original applicant would submit that Ext.P-10 G.O. has been issued by the State Government unilaterally and without affording reasonable opportunity of being heard to the petitioner herein, even though by Ext.P-10 the Government has cancelled the beneficial order earlier given in favour of the applicant as per Ext.P-3, etc. 10. It is to be noted that after the issuance of Ext.P-3 G.O. and before the issuance of Ext.P-10 G.O., the petitioner herein had filed Ext.P-4 Miscellaneous Application M.A. (Ekm) No.781/2020 in the disposed O.A.(Ekm) No.2817/2017 before the Tribunal with the following prayers: _“In the above circumstance, in the interest of justice, it is most humbly prayed that this Hon'ble Tribunal may be pleased to direct the 3[rd] respondent to implement the directions in Annexure MA-2 government order, in strict sense of the direction, of this Honourable Tribunal, in its letter and spirit, to grant appoint to the applicant in service and issue appropriate posting orders immediately. ”_ 11. After the issuance of Ext.P-10 G.O. dated 24.11.2021, the Tribunal has considered Ext.P-4 Miscellaneous Application and has passed Ext.P-11 order dated 1.12.2021 on M.A. (Ekm) No.781/2020 in the disposed O.A.(Ekm) No.2817/2017, stating that since Ext.P-3 G.O. has already been cancelled by the State Government as per Ext.P-10 G.O., the remedy of the original O.P.(KAT) No. 381 of 2021 ..9.. applicant is to challenge the latter G.O. in the manner known to law. 12. Various submissions have been made by both sides. We need not get into those aspects except to note that what has been granted by the Tribunal as per Ext.P-2 final order dated 4.6.2019 in O.A.(Ekm) No.2817/2017 was a direction to the State Government to consider the pleas of the petitioner and then take a considered decision thereon. The Tribunal had not adjudicated the merits of the case and has not rendered a verdict granting any particular benefit in favour of the applicant. The matter was entirely left to the discretion of the Government to take an appropriate decision, as can be seen from Ext.P-2 verdict. The Government had initially passed Ext.P-3 G.O. dated 11.2.2020 granting the benefit mentioned therein to the applicant/petitioner herein. Thereafter, the applicant had filed Ext.P-4 Miscellaneous Application with the prayer to the Tribunal to implement Ext.P-3 G.O. Since, no specific relief on merits has been granted by the Tribunal as per Ext.P-3 verdict, such a prayer as in Ext.P-4 M.A. may not have been maintainable. If, the applicant had a case that O.P.(KAT) No. 381 of 2021 ..10.. the PSC was not implementing the directions issued by the Government as per Ext.P-3, it was for him to workout the remedies in the manner known to law by instituting independent proceedings. The PSC objected to the State Government about the issuance of Ext.P-3 G.O. in view of the aspects mentioned hereinabove. The Government has passed Ext.P-10 G.O. dated 24.11.2021 cancelling Ext.P-3 G.O. Therefore, now, in case the petitioner has any legally justiciable grievances in relation to the matter in Ext.P-10 G.O., it is for him to workout his remedies in the manner known to law. Liberty is accorded to the petitioner to file Original Application before the Tribunal, if he has any legally justiciable grievances in relation to the matter in Ext.P-10 G.O., etc. 13. Sri.P.R.Shaji, learned counsel appearing for the petitioner/original applicant would point out that this Court may make it clear that the pendency of Ext.P-4 Miscellaneous Application and the pendency of this O.P., may be excluded by the Tribunal for reckoning any delay in the matter. Further, it is also pointed out that by the petitioner's counsel that there are series of O.P.(KAT) No. 381 of 2021 ..11.. orders issued by the Three Judges' Bench of the Apex Court in Suo Motu Writ Petition (Civil) No. 3/2020 extending time in the matter of extension of limitation and exclusion of time in view of the COVID-19 pandemic issues, and such beneficial orders were in force till 8.2.2022, etc. 14. In case the petitioner makes any such plea, it is for him to make out such case before the Tribunal, who may consider the same. No other orders and directions are called for in this case. Accordingly, with these observations and directions and with the said liberty, the above Original Petition (KAT) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG O.P.(KAT) No. 381 of 2021 ..12.. ## **APPENDIX OF OP(KAT).NO.381/2021** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF O.A(EKM) NO. 2817/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH, ERNAKULAM. ANNEXURE A1 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE GOVERNMENT MEDICAL COLLEGE HOSPITAL, THRISSUR. ANNEXURE A2 TRUE COPY OF THE DEGREE CERTIFICATE IN BACHELOR OF ENGINEERING IN ELECTRICAL AND ELECTRONIC BRANCH, MANGALORE UNIVERSITY. ANNEXURE A3 TRUE COPY OF THE NOTIFICATION. ANNEXURE A4 TRUE COPY OF THE ABOVE RANK LIST. ANNEXURE A5 A TRUE COPY OF THE ABOVE CALLING LETTER. ANNEXURE A6 A TRUE COPY OF THE VERIFICATION CERTIFICATES. ANNEXURE A7 A TRUE COPY OF THE INFORMATION GIVEN UNDER RIGHT TO INFORMATION ACT. ANNEXURE A8 A TRUE COPY OF THE GOVERNMENT ORDER DATED 06.05.2017 OF THE SOCIAL JUSTICE DEPARTMENT. EXHIBIT P2 TRUE COPY OF ORDER DATED 04.06.2019 IN O.A(EKM) NO. 679/2018 OF THE ADMINISTRATIVE TRIBUNAL ADDITIONAL BENCH, ERNAKULAM. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 11.02.2020 WITH NO. GO(MS) NO. 5/2020/SJD DATED THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF MA(EKM) NO. 781/2020 IN OA (EKM) NO.2817/2017.** ..13.. ## O.P.(KAT) No. 381 of 2021 ## **EXHIBIT P5** **TRUE COPY OF THE STATEMENT IN MA (EKM) NO. 781/2020 IN OA(EKM) NO. 2817/2017 FILED BY THE 3RD RESPONDENT DATED 27.07.2020.** **EXHIBIT P6** **TRUE COPY OF REPLY STATEMENT IN MA (EKM) NO. 781/2020 IN OA (EKM) NO. 2817/2017 DATED 13.08.2020 FILED BY THE 3RD RESPONDENT.** **EXHIBIT P7** - **TRUE COPY OF REPLY STATEMENT FILED ON BEHALF OF THE 4TH RESPONDENT IN MA(EKM) NO. 781/2020 IN OA (EKM) NO. 2817/2017 21.01.2021.** **EXHIBIT P8** - **TRUE COPY OF ORDER DATED 03.03.2021 OF THE ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH ERNAKULAM IN MA(EKM) NO.781/2020 IN OA (EKM) NO. 2817/2017.** **EXHIBIT P9 TRUE COPY OF MEMO FILED BY THE GOVERNMENT PLEADER IN ABOVE MA(EKM) NO. 781/2020 IN OA(EKM) NO. 2817/2017.** **EXHIBIT P10** - **TRUE COPY OF GOVERNMENT ORDER G.O(MS) NO.27/2021/SJD THIRUVANANTHAPURAM DATED 24.11.2021.** **EXHIBIT P11 TRUE COPY OF ORDER DATED 1.12.2021 OF THE HON'BLE ADMINISTRATIVE TRIBUNAL ADDITIONAL BENCH, ERNAKULAM.**