Sathisha M v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 8[TH] DAY OF JANUARY 2024 / 18TH POUSHA, 1945 OP(KAT) NO. 263 OF 2022** **ORDER IN OA (EKM) NO.285 OF 2022 OF KERALA ADMINISTRATIVE** **TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** **SATHISHA M, AGED 38 YEARS S/O KESHAVA, RANK HOLDER NO.21 IN MAIN LIST & RANK HOLDER NO.1 IN SUPPLEMENTARY LIST (LOCOMOTORY DISABILITY/CEREBRAL PALSY) IN RANKED LIST NO.379/2018/SS V DATED 31.05.2018 RESIDING AT MADANDOOR HOUSE, KAYYAR P.O, UPPALA, KASARAGOD, PIN - 671322** **BY ADVS. RAGHUL SUDHEESH K.J.GLAXON J.LAKSHMI ELIZABETH MATHEW BINI DAS** ## **RESPONDENTS/RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** **2 THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** OP(KAT) No.263/2022 ..2.. - **3 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN - 695004** - **4 THE DISTRICT OFFICER - KPSC, TIGER HILLS, BUILDING NO.KMC XII-38-D, MUNICIPAL ROAD, PULIKUNNU, KASARAGOD, PIN – 671121** **BY SENIOR GOVERNMENT PLEADER BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No.263/2022 **==> picture [31 x 7] intentionally omitted <==** "CR" ## JUDGMENT ## SHOBA ANNAMMA EAPEN, J. The petitioner, a differently abled candidate with locomotor disability, is included in the ranked list dated 31.05.2018 to the post of High School Assistant (Mathematics - Kannada Medium) in the Education Department in Kasaragod District. He is the sole candidate included in the list of differently abled candidates for appointment against 3% earmarked vacancies. The said vacancies are set apart to the low vision category as well as hearing impairment category. The vacancies set apart for differently abled persons remained unfilled for want of candidates belonging to the low vision category as well as hearing impairment category. Hence, the petitioner filed Annex.A5 representation dated 26.06.2019 to appoint him in the vacancy set apart for differently abled persons. Aggrieved by non consideration of Annex.A5, the petitioner had filed OA(Ekm) No.1078/2019, pursuant to which, on a direction given by the tribunal, the request of the petitioner was denied as per Annex.A7, wherein it was concluded that the category interchange cannot be allowed OP(KAT) No.263/2022 **==> picture [31 x 7] intentionally omitted <==** and the petitioner cannot be given advice and appointment. Challenging the same, the petitioner again approached the tribunal, and after an elaborate consideration of the issue, the tribunal dismissed the original application filed by the petitioner. It is aggrieved by this, the petitioner is before this Court with this original petition. 2. The main grievance raised by the petitioner is that despite non availability of candidates belonging to low vision and hearing impairment categories in the list, the vacancy against the turns for differently abled category is set apart for the said categories itself. According to him, in the absence of candidates with specific disability, the same was to be interchanged among other categories of differently abled candidates and the petitioner, being a candidate with locomotor disability, who alone is included in the ranked list, has to be considered. 3. It is relevant to refer to Section 34(2) of the Rights of Persons with Disabilities Act, 2016 (for short, “the Act”), which reads thus; “34. Reservation.-(1) xxxxxx (2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient OP(KAT) No.263/2022 ..5.. reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability: Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.” 4. On a reading of Section 34(2) of the Act, it is clear that in any recruitment year, if any vacancy remained unfilled due to non-availability of a person with benchmark disability, then it has to be carried forward to the succeeding recruitment year. Here, the case of the petitioner is that in the particular recruitment year when candidates in the low vision category and the hearing impairment category are not available, it has to be interchanged among other categories of differently abled candidates. The said averment is against the legal proposition. As far as Section 34(2) of the Act is concerned, the Act is very clear. When there is no ambiguity, in an Act, clarity prevails, leaving little room for misinterpretation and misunderstanding. 5. Learned Standing Counsel for the Public Service OP(KAT) No.263/2022 **==> picture [31 x 7] intentionally omitted <==** Commission referred to a decision of this Court in Sudha M. v. Kerala Agricultural University, Trichur & Others [2022 (4) KHC 727], wherein it has been held that the “recruitment year” is the year in which the recruitment takes place and not each successive year in which the vacancy exists; and “the recruitment year” is not the same as “the selection year”. However, we are not going into the correctness of the said judgment since no such issue arises in this case. The issue regarding the definition of “recruitment year” and “selection year” as held in Sudha M. (supra) is left open. In view of the foregoing discussion, we are of the view that the petitioner is not entitled to get any relief as sought for. The original petition is dismissed accordingly. SD/- ## A. MUHAMED MUSTAQUE ## JUDGE ## SD/- ## SHOBA ANNAMMA EAPEN ## JUDGE bka/- OP(KAT) No.263/2022 ..7.. ## **APPENDIX OF OP(KAT) 263/2022** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE RANKED LIST NO.379/2018/SS V DATED 31.05.2018 AGAINST CATEGORY NO.266/2013** - **Annexure A2 TRUE COPY OF CIRCULAR NO. 03/13 DATED 10.04.2013 ISSUED BY THE 3 RD RESPONDENT.** **Annexure A3 TRUE COPY OF APPOINTMENT CHART NO. DATED 20.06.2018.** - **Annexure A4 TRUE COPY OF APPOINTMENT CHART DATED 29.07.2021.** - **Annexure A5 TRUE COPY OF THE REPRESENTATION DATED 20.06.2019 SUBMITTED BY THE APPLICANT TO THE SECRETARY, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT OF KERALA.** - **Annexure A6 TRUE COPY OF THE ORDER OF THIS HON'BLE TRIBUNAL DATED 27.05.2020 IN O.A. (EKM) 1078/2019.** - **Annexure A7 TRUE COPY OF THE G.O.(RT) NO. 599/2021/SJD DATED 5.12.2021.** - **Annexure A8 TRUE COPY OF THE RELEVANT PAGES OF THE EIGHTH EDITION OF THE BROCHURE ON RESERVATION FOR SCHEDULED CASTES & SCHEDULE TRIBES IN SERVICES, ISSUED BY THE GOVERNMENT OF INDIA.** **Annexure A9** **TRUE COPY OF THE DECISION OF THE HON'BLE SUPREME COURT OF INDIA IN COMMISSIONER OF CENTRAL EXCISE, BOLPUR V. M/S.RATAN MELTING & WIRE INDUSTRIES DATED 14.10.2008.** OP(KAT) No.263/2022 ..8.. **Annexure A10 TRUE COPY OF THE JUDGMENT OF THE HON'BLE KERALA HIGH COURT DATED 09.10.2014 IN SARITHA S. BABU VS. STATE OF KERALA & ORS.** **Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION (EKM) NO.285/2022 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL (ERNAKULAM BENCH) Exhibit P2 A TRUE COPY OF THE ORDER OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL DATED 24.02.2022 IN O.A. (EKM) 285/2022.**