Sibin Paul v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** **OP(KAT).No. 341 of 2015 (Z) ----------------------------** **AGAINST THE ORDER/JUDGMENT IN TA 739/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED** **PETITIONER(S): -------------** **SIBIN PAUL S/O. V.L.PAUL, THATTIL VALLACHIRAKARAM, P O MOORKANAD, THRISSUR-680711.** **BY ADVS.SRI.P.NANDAKUMAR SRI.S.ANEESH** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL WELFARE (A) DEPARTMENT, THIRUVANANTHAPURAM-680711.** **2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM-695014.** **3. THE REGIONAL OFFICER, KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE, KAKKANAD, KOCHI-682030.** **R2 & 3 BY ADV. SRI.P.C.SASIDHARAN, SC, KPSC R BY GOVERNMENT PLEADER SRI JOSEPH GEORGE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26-02-2016, THE COURT ON 25-5-2016 DELIVERED THE FOLLOWING:** **kkj** ## **OP(KAT).No. 341 of 2015 (Z) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE A1: TRUE COPY OF ORDER IN T.A.NO.739 OF 2013 DATED 30.07.2015** **ANNEXURE A2: TRUE COPY OF T.A.NO.739 OF 2013** **EXT.P1. TRUE COPY OF THE RELEVANT PORTION OF THE NOTIFICATION DATED 12-11-2007 PUBLISHED BY KPSC.** **EXT.P2. TRUE COPY OF THE DISABILITY CERTIFICATE DATED 20-07-2015.** **EXT.P3. TRUE COPY OF THE PROBABILITY LIST DATED 23-11-2010 ISSUED BY 3RD RESPONDENT.** **EXT.P4. TRUE COPY OF ERRATUM NOTIFICATION DATED 16-8-2011 ISSUED BY 3RD RESPONDENT.** **EXT.P5. TRUE COPY OF GO (P) NO. 20/1998/P&ARD DATED 14-7-1988.** **EXT.P6. TRUE COPY OF GO (P) NO. 11/2009/SWD DATED 10-2-2009.** **EXT.P7. TRUE COPY OF GO (P) NO. 8/10/SWD DATED 1-2-2010.** **EXT.P8. TRUE COPY OF RANKED LIST DATED 2-9-2011.** **ANNEXURE A3: TRUE COPY OF THE AFFIDAVIT IN IA.NO.2275 OF 2013** **EXT.P9. TRUE COPY OF LETTER OF THE GOVERNMENT DATED 5-11-2012.** **EXT.P10. TRUE COPY OF LETTER DATED 28-1-2013 OF THE CHIEF ENGINEEER, LSGD.** **ANNEXURE A4: TRUE COPY OF M.A.NO.2419 OF 2013** **ANNEXURE MA1: TRUE COPY OF ORDER DATED 04.04.2013** **ANNEXURE A5: TRUE COPY OF REPLY UNDER RTI ACT DATED 06.11.2015** **ANNEXURE A6: TRUE COPY OF JUDGMENT IN W.A.NO.362 OF 2015 DATED 06.01.2006** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **// TRUE COPY //** **PA TO JUDGE** **K.SURENDRA MOHAN & P.V.ASHA, JJ. --------------------------------------------O.P.(KAT) No.341 of 2015 ---------------------------------------------Dated this the 23[rd] day of May, 2016** ## **J U D G M E N T** ## Surendra Mohan, J. The petitioner challenges the order dated 30.07.2015 of the Kerala Administrative Tribunal (KAT for short) dismissing the application filed by him. The petitioner is a visually challenged person and according to him, he suffers from 40% disability. Pursuant to a notification issued by the second respondent, Kerala Public Service Commission, he had applied for selection and appointment to the post of Public Works Overseer Grade-II/ Draftsman Grade-II/ Town Planning Surveyor Grade-II/ Water Works Inspector GradeII in the Kerala Municipal Common Service. The said notification is exhibit P1 in annexure A2. Exhibit P2 is the Certificate in proof of his disability. The second respondent considered the petitioner's application and thereafter he was included in the probability list of candidates, exhibit P3 dated 23.11.2010. He was included in the list of ## -:2:- ## O.P.(KAT) No.341 of 2015 handicapped persons prepared in accordance with the terms of G.O.(P).No.8/2010/S.W.D. dated 1.2.2010. However, later on by an Erratum Notification dated 16.08.2011 all the blind as well as deaf and dumb candidates were removed from the probability list. Aggrieved by his deletion from the probability list, the petitioner filed W.P.(C) No.28056 of 2011 before this Court. The Writ Petition was admitted and an interim order directing the respondents not to advise and fill up one post of Public Works Overseer Gr-II/Draftsman Grade II/ Town Planning Overseer Gr-II/Water Works Inspector Grade II in the Kerala Municipal Common Service at the 33[rd] turn for blind category was granted. 2. Later on, the Writ Petition was transferred to the KAT and renumbered as T.A.No.739 of 2013. The petitioner contended that he was fully qualified to be selected and appointed to one of the vacancies notified by the PSC. He had been included in the blind category with Reg -:3:- ## O.P.(KAT) No.341 of 2015 No.102880. However, from the rank list exhibit P8 dated 2.9.2011, the PSC totally excluded the blind as well as the deaf and dumb candidates. During the pendency of the proceedings before the KAT, the petitioner produced Annexure MA-1, an order dated 04.04.2013 by which, the posts of Overseer Gr-I, II and III (Civil) Public Works Department and Local Self Government Departments are identified as suitable for physically handicapped low vision candidates. In view of the said Government Order, it was contended that, the petitioner was entitled to a direction to be appointed to the post that was directed to be kept vacant by the interim order of this Court. 3. The contentions of the petitioner were disputed by the PSC as well as other respondents. According to the PSC, at the time of issuing the notification exhibit P1, the notified post had not been identified as suitable for the appointment of either blind or deaf and dumb candidates. It was for the above reason that, reservation for the physically ## -:4:- ## O.P.(KAT) No.341 of 2015 handicapped persons was limited to one category namely the orthopaedically disabled. It was for the said reason that, the petitioner was deleted from the probability list. The subsequent identification of the post as suitable by annexure-MA1 does not entitle the petitioner to claim inclusion in the list that was already published. 4. The KAT considered the rival contentions and found that, at the time of issue of exhibit P1 notification on 12.11.2007, the notified post had not been identified as a suitable one for the appointment of deaf and blind candidates by the Government. Therefore, the petitioner had been subjected to a suitability test in which he had failed. Hence, he was not ranked. The rank list that was so published was operative during the full period of its validity after which it had expired. Since the main list has already expired, the supplementary list to which the petitioner claims inclusion, cannot be operated, even assuming the petitioner to be eligible. Therefore, the application of the ## -:5:- ## O.P.(KAT) No.341 of 2015 petitioner was dismissed. It is the said order, annexure A1, that is under challenge in this Original Petition. 5. According to Advocate P.Nandakumar who appears for the petitioner, the petitioner is fully qualified for being appointed to the notified post. He is also entitled to the benefit of the reservation stipulated by the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act' for short). The Act having been brought into force on 07.02.1996, the petitioner was entitled to the benefit of the reservation of 3% of the vacancies notified. As per exhibit P5 Government Order dated 14.07.1988, 3% posts have been reserved for physically handicapped persons. As per exhibit P6 dated 10.02.2009, Class III and Class IV posts identified as suitable for the appointment of physically handicapped persons in the various Government Departments have been listed therein. Accordingly, the post of Overseer Gr-II in ## -:6:- ## O.P.(KAT) No.341 of 2015 Agricultural Department has been identified. Since the post of an Overseer in the Municipal Common Service is also similar it is contended that reservation to physically handicapped (blind) candidates ought to have been granted in the present case also. According to the learned Counsel, as per exhibit P7 Government Order dated 01.02.2010, the benefits of exhibit P6 have been extended to all Public Sector Undertakings, Universities, Co-operative Institutions, autonomous Institutions under the State Government and such other bodies also. Therefore, in accordance with the mandate of the said Government Orders, it was incumbent on the part of the PSC to have advised the petitioner for appointment to one of the vacancies notified. The petitioner had challenged the deletion of his name from the Probability list immediately after the issue of exhibit P4. This Court also granted an interim order directing one of the posts to be kept vacant. Therefore, it is contended that the expiry of the rank list ## -:7:- ## O.P.(KAT) No.341 of 2015 does not affect the rights of the petitioner in any manner. Being a physically challenged person, it is contended that appropriate directions for his appointment in accordance with the legislative intent in enacting the Act is necessary to be issued. He therefore seeks interference with the impugned order of the KAT. 6. A counter affidavit has been filed by respondents 2 and 3. According to Advocate P.C.Sasidharan, Standing Counsel for the PSC, at the time of issue of exhibit P1 notification, the post in the present case had not been identified as suitable for the appointment of blind or deaf and dumb candidates. Therefore, the action of the PSC in not extending the benefits of the reservation to the petitioner cannot be found fault with. The rank list was published on 2.9.2011. The rank list was prepared in compliance with the orders that were in force at that time. The identification of the notified post as suitable for appointment of blind candidates does not entitle the PSC to ## -:8:- ## O.P.(KAT) No.341 of 2015 modify or recast the list. The list was operative and appointments were made. The list continued to remain in force and was exhausted on 02.09.2014. The selection having been made and the rank list prepared on the basis of Rules and Orders at the time of notification, it is contended that there are absolutely no grounds to grant any of the reliefs sought for by the petitioner. The Kerala Administrative Tribunal has taken note of the above aspects and has rightly rejected the claim of the petitioner, it is contended. 7. Heard. The claim of the petitioner is that he is entitled to be appointed to one of the posts notified as per exhibit P1 granting him the benefit of 3% reservation for physically handicapped persons stipulated by the Act. The petitioner had submitted his application for appointment to the post pursuant to exhibit P1 notification dated 12.11.2007. Though it is true that the Act providing for reservation to physically handicapped persons had been ## -:9:- ## O.P.(KAT) No.341 of 2015 brought into force in the year 1996, the notified post had not been identified as suitable for the appointment of blind candidates by the Government. Though the petitioner was allotted a Register Number and was included in the probability list of candidates initially, as per exhibit P4 Erratum Notification blind as well as deaf and dumb candidates were removed from the list. According to the PSC, the petitioner had been subjected to a suitability test in which he had failed. Therefore, he was not ranked in exhibit P8 rank list. 8. The case of the petitioner is that, though the initial notification exhibit P1 is dated 12.11.2007, the probability list exhibit P3 was published only on 23.11.2010 and the erratum notification on 16.08.2011. The rank list was published shortly thereafter on 02.09.2011. However, exhibit P5 proceedings of the Government reserving 3% seats for physically handicapped persons had been issued as far back as on 14.07.1988 itself. Not long thereafter, by ## -:10:- ## O.P.(KAT) No.341 of 2015 exhibit P7 dated 01.02.2010, the benefits of reservation in exhibit P6 were extended by the Government to public sector undertakings as well as other non-governmental institutions also. It is the said Government Order that has been referred to in exhibit P3 probability list while preparing the list of physically handicapped candidates, including the petitioner. According to the counsel for the petitioner, since exhibit P7 had extended the benefits of exhibit P6 to non-governmental organisations, there was no justification for denying the benefits thereof to the notified post which is part of the Municipal Common Service. In other words, the contention is that exhibit P7 Government Order should be suitably construed and made applicable to posts under the Municipal Common Service also. 9. The above contention however cannot be accepted for the reason that, the petitioner himself had submitted a representation requesting that the post of Overseer in the Kerala Municipal Common Service be ## -:11:- O.P.(KAT) No.341 of 2015 identified as suitable for the reservation of physically handicapped persons. Exhibit P9 shows that the opinion of various authorities had been sought for on the representation of the petitioner by the Government. As per Exhibit P10 dated 28.01.2013 the Chief Engineer, Local Self Government Department had indicated to the Government that the said post was suitable for extension of reservation for persons suffering from disabilities of low vision, hearing and orthopaedic. Subsequently, by Annexure MA-1 Government Order dated 04.04.2013, the notified post has also been identified as suitable for appointment of physically disabled persons like the petitioner. Therefore, as per Annexure MA-1, posts notified by exhibit P1 were identified as suitable for appointment of blind persons like the petitioner only as per Annexure MA-1 dated 04.04.2013. The fact that the said post was specifically notified subsequently shows that, exhibit P7 Government Order was not meant to apply to the said post, extending the benefits ## -:12:- ## O.P.(KAT) No.341 of 2015 of the reservation to the same. The resultant position therefore is that, as on the date of exhibit P1 notification as well as on the date of exhibit P8 rank list namely 2.9.2011, the notified post was not identified as suitable for the appointment of a physically challenged person like the petitioner. 10. As already noticed above, the post of Overseer that was notified by exhibit P1 was identified as suitable for the appointment of blind/partially blind candidates only on 4.4.2013 as per Annexure MA1. Admittedly, the rank list was in force on the said date and was exhausted only on 02.09.2014 **.** The contention of the counsel for the petitioner is that in view of Annexure MA1, the PSC ought to have appointed the petitioner at the 33[rd] turn that is meant for blind category. In the above context, it is worth noticing that exhibit P8 rank list was brought into force on 02.09.2011. The probability list exhibit P3 is dated 23.11.2010. Since the notified post had not been identified ## -:13:- ## O.P.(KAT) No.341 of 2015 as suitable for appointment of a blind a candidate by the Government, it is stated that a suitability test was conducted by the PSC and all the blind as well as deaf and dumb candidates were removed from the probability list by exhibit P4 Erratum Notification on 16.08.2011. The said action is challenged by the petitioner. However, the said action cannot be found fault with on the basis of the Rules and Orders applicable at that time. It is true that, the petitioner had challenged the said action immediately thereafter. While admitting this Writ Petition, this Court had also directed one post to be kept vacant placing reliance on the information obtained by the petitioner under Right to Information Act, it is pointed out by the Counsel that no one has been appointed to the said post, till date. Therefore, he seeks the issue of a direction to appoint the petitioner to the said post in view of Annexure MA-1 order. 11. However, it is necessary to take note of the fact that, as per exhibit P4 Erratum notification, the numbers of -:14:- ## O.P.(KAT) No.341 of 2015 four blind candidates and one deaf and dumb candidate have been removed from the probability list. Except for the petitioner, none of the others are before us. According to the Public Service Commission, since the petitioner and other disabled candidates were not entitled to the benefits of reservation, they were subjected to a suitability test in which they had failed. Therefore, they were not included in the rank list. In other words, the contention is that, the petitioner had not been selected. Therefore, according to the counsel for respondents 2 and 3, a direction to appoint the petitioner would not be in the interests of justice for the reason that neither the merit of the petitioner nor those of the other candidates who had been excluded, had been assessed. Though it is true that the petitioner had been included in the probability list, he had not been ranked for the reason that he had failed in the suitability test that was conducted. The details of the other candidates who had similarly failed in the suitability test are not before us. Only ## -:15:- ## O.P.(KAT) No.341 of 2015 for the reason that, the petitioner had challenged the deletion of his name from the probability list, a direction to appoint him cannot be issued. This is for the reason that, we are not sure whether we would be overlooking the claim of a more meritorious person. We have already found that the action of the PSC in proceeding to exclude the petitioner from the probability list could not be found fault with for the reason that the same was in accordance with the Rules and Orders applicable at that time. The main list has also been exhausted on 02.09.2014. Therefore, we are not satisfied that, a direction to appoint the petitioner could be issued in the present case. 12. The counsel for the petitioner has placed reliance on the decision in **Government of India v. Ravi Prakash Gupta** [(2010) 7 SCC 626] to contend that the Act having been brought into force from the year 1996 onwards, it was incumbent on the Government to have identified the posts that were suitable for being reserved for appointment of ## -:16:- ## O.P.(KAT) No.341 of 2015 physically challenged candidates. The omission on the part of the Government to identify suitable posts cannot be put forward as a ground to deny the benefits of the Act to an eligible person. In the said case, the Supreme Court was concerned with the question as to whether reservation in the matter of appointment to the Civil Services was necessary to be granted to a visually handicapped person. It is worth noticing from the facts of the said case that, the handicapped person in the said case had cleared the preliminary examination, the final examination and had qualified at the interview also. He was ranked as Sl.No.5 in the merit list prepared for visually handicapped candidates. The Apex Court has noticed the above aspect in paragraph 20 of the said judgment, which is reproduced below. 20. That the Respondent No.1 is eligible for appointment in the Civil Services after having been declared successful and having been placed at serial No.5 in the disabled category of visually impared candidates, cannot be denied. The only question which is relevant for our purpose is whether on account of the failure of the petitioners to identify posts for persons falling within the ambit of Section 33 of the ## -:17:- ## O.P.(KAT) No.341 of 2015 Disabilities Act, 1995, the Respondent No.1 should be deprived of the benefit of his selection purportedly on the ground that there were no available vacancies in the said category. The other question which is connected with the first question and which also requires our consideration is whether the reservation provided for in Section 33 of the Disabilities Act, 1995, was dependent on identification of posts suitable for appointment in such categories, as has been sought to be contended on behalf of the Government of India in the instant case. ## 13. After considering the question, Altamas Kabir, J has concluded the issue in the following manner. 24.It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. 25.The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment (emphasis added). For the sake of reference, Sections 32 and 33 of the Disabilities Act, 1995, are reproduced herein below. ## -:18:- ## O.P.(KAT) No.341 of 2015 “32.Identification of posts which can be reserved for persons with disabilities,- Appropriate Governments shall(a) Identify posts, in the establishments, which can be reserved for the persons with disability; (b) At periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology. 33.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 of persons with disability of which one percent each shall be reserved for persons suffering from- (i) blindness or low vision; (ii)hearing impairment; (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 such notification, exempt any establishment from the provisions of this section.” 26. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of ## -:19:- ## O.P.(KAT) No.341 of 2015 making appointments and not for the purpose of making reservation. 27. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. It is clear from the above that, the necessity of identifying suitable posts to which physically handicapped persons could be appointed has been accepted by the Apex Court. However, it has been held that, the necessity of identification of such post becomes important only at the stage where actual appointment is sought in the present case, where at the stage of considering whether an actual appointment could be granted or not, even in absence of identification of the post as suitable. In the decision in **Union of India V. National Federation of the Blind and others** [(2013) 10 SCC 772] also, it was the question of reservation of posts for appointment of physically disabled -:20:- ## O.P.(KAT) No.341 of 2015 persons that was at issue. A three Judge Bench of the Apex Court considered the question in the light of the dictum laid down in the Ravi Prakash Gupta's case (Supra) and has held as follows:- In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing 3% reservation under Section 33 of the Act,. In succinct, it was held in the Ravi Prakash Gupta that Section 32 of the Act is not a precondition for computation of reservation of 3% under Section 33 of the Act rather Section 32 is the following effect of Section 33. 14. In the above case, the Apex Court was also concerned with the question as to whether reservation of posts for the physically handicapped would follow the ceiling limit of 50%. The question as to whether an appointment could be granted to a post that was not identified as suitable by the Government for appointment of a physically disabled person did not arise in the said case. 15. The counsel for the petitioner has placed reliance ## -:21:- ## O.P.(KAT) No.341 of 2015 on Annexure A6 judgment to contend that a similar contention as put forward by the PSC in the present case has been repelled by this Court. In Annexure A6 judgment, this Court had to consider the claim of physically handicapped persons who were ranked in a supplementary list published by the PSC. They had not been appointed for the reason that, according to the PSC sufficient number of vacancies were not available. It was contended that, identification of suitable posts for reservation of physically handicapped persons was done by the Government only in 2010. In the light of the clarificatory order issued by the Government, such reservation was to take effect only from 01.01.2008. Therefore, only vacancies available after the said date could be taken into account, it was contended. The said contention was negatived by this Court in the light of the dicta laid down by the Apex Court in the decisions referred to above. It has been held that, the duty to reserve 3% vacancies to physically handicapped persons was a ## -:22:- ## O.P.(KAT) No.341 of 2015 legislative mandate that could not be by passed. Since filling up of the vacancies could have been taken up only after identification of posts by the Government, the vacancies could be considered to have arisen only after such identification. Therefore, it has been held that upon identification of the vacancies, all vacancies that could have been considered as having arisen during the period of validity of the rank list would have to be advised. The said dictum also cannot help the petitioner in the present case for the reason that, here the petitioner had not been ranked in exhibit P8 rank list. As held by this Court in exhibit P6, vacancies that are available for appointment of physically handicapped candidates can be said to have arisen only upon identification of the post as suitable for extending such reservation. The impugned erratum notification exhibit P4 cannot therefore be set aside for the reason that, long thereafter, as per annexure MA1, the notified post had been identified as suitable for reservation of physically ## -:23:- ## O.P.(KAT) No.341 of 2015 handicapped persons by the Government. For the foregoing reasons, we find no grounds to interfere with the order of the KAT or to grant any of the reliefs sought for. This Original Petition is therefore dismissed. ## **K.SURENDRA MOHAN JUDGE** **P.V.ASHA JUDGE** kkj