High Court of KeralaDivision Bench2019-02-07Writ Appeal disposed of; the court denied relie...

Sreejith A.K. v. State of Kerala and Others

Case / Petition Number:WA.No.218/2019

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
V. G. Arun
Judgment Date: 2019-02-07
Court Decision / Holding: Writ Appeal disposed of; relief for backlog appointment (relief no. (ii)) denied in light of Ext. P2, but the court directs expeditious steps to implement the Rights of Persons with Disabilities Act, 2016 under Section 34 and Ext. P7; the 4th respondent is directed to take action under Section 80, and the Chief Secretary is to ensure effective implementation.
Final Disposition: Writ Appeal disposed of; the court denied relief for backlog appointment but directed the government to take expeditious steps under the disability Act (Section 34) and Ext. P7, with the 4th respondent acting under Section 80; Chief Secretary to ensure implementation.

Parties to the Case

Appellants / Petitioners

Sreejith A.K.

Respondents

State of Kerala
The Kerala State Public Service Commission
Regional Officer, Kerala Public Service Commission
State Commissioner, State Commissioner for Persons with Disabilities

Legal Representation & Advocates

Counsels for Petitioners

• K. S. Bharathan
• Kum. Swathy
• Sri Abel Antony

Counsels for Respondents

• Standing Counsel for respondents 2 and 3
• Government Pleader

Case Synopsis & Summary

The writ appeal challenges the dismissal of a petition filed by Sreejith A.K., a physically handicapped person, seeking backlogged recruitment protections under disability laws. The petitioner prayed (i) for a declaration that persons with disability are entitled to backlog vacancies from 7 February 1996 in posts such as Assistant Grade II, Clerk, Junior Clerk, LDC/Cashier, and other designated posts, with a 3% reservation when filling vacancies in public sector undertakings and government companies; and (ii) a writ of mandamus directing respondents 2 and 3 to appoint the petitioner to a suitable post identified under Exts. P2/P3 after identifying the backlog as per Ext. P7. The learned Single Judge rejected relief (ii) on the basis that Ext. P2’s ranked list already contained the petitioner’s name. The Division Bench recalls Kerala Full Bench precedents, including Vimala Kumari v. State, to examine backlog-based relief after enactment of the Rights of Persons with Disabilities Act, 2016, noting that Act 2016 repeals the earlier regime but preserves pending actions under its transitional provisions (Section 102(2)). It highlights gaps in the record, especially lack of demonstrable steps to identify backlog vacancies since 1996 and the need to implement Section 34 and Ext. P7. The court disposes of the petition but directs expeditious action under the Act and requires the 4th respondent to act under Section 80 with directions to the Chief Secretary for proper implementation.

Provisions of Law Cited

Rights of Persons with Disabilities Act, 2016 (Act 49 of 2016)Section 34 of the Rights of Persons with Disabilities Act, 2016Section 102(2) of Act 49 of 2016Section 80 of the Rights of Persons with Disabilities Act, 2016Rights of Persons with Disabilities Act, 1996 (Rules), Rights of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that persons with disabilities are entitled to backlog vacancies and to a 3% reservation in posts such as Assistant Grade II, Clerk, Junior Clerk, LDC/Cashier, etc., to be filled in PSUs and government companies, as per Ext. P9 declaration in 2011 and the spirit of the Rights of Persons with Disabilities Act, 2016. They argue Ext. P7 identifies the backlog and that a mandamus to appoint under Exts. P2/P3 is proper to give effect to the statutory mandate. They contend that though Act 2016 repealed the 1996 Act, Section 102(2) preserves actions under the earlier regime and the 3% reservation continues until the new framework operates fully. They point out that Ext. P2’s list cannot bar relief if backlog remains to be filled, and that respondents’ record shows no steps to identify backlog since 1996. They rely on constitutional guarantees of equality and on the Act’s objective to ensure disability representation in public employment, urging grant of relief (i) and swift implementation of Ext. P7, without delay.

Contentions of Respondents

The respondents argued that Ext. P2 already contains the petitioner’s name and relief (ii) cannot be granted as the ranked list has expired. They asserted that there is no material showing ongoing action to identify backlog vacancies under Ext. P7 and no proof of backlog numbers since 7.2.1996. They contend that Act 2016 governs recruitment, with Section 34 prescribing a 4% reservation and a transitional framework under Section 102(2). They state that the 1996 Rules were repealed, and the government must act with proper records before granting backlog appointments. They submit that granting relief would undermine merit-based recruitment and that the correct remedy is to implement Section 34 and Ext. P7 in a timely manner, with the 4th respondent acting under Section 80 and the Chief Secretary ensuring implementation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vimala Kumari v. State	1994 (2) KLT 47	Positive	Cited as controlling authority; the Full Bench decision informs the court’s view that relief to backlogged appointments must be grounded in the statutory framework and the record on backlog before relief can be granted.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 07TH DAY OF FEBRUARY 2019 / 18TH MAGHA, 1940** **WA.No. 218 of 2019** **JUDGMENT IN WP(C) 41025/2017 of HIGH COURT OF KERALA DATED 13.11.2018** ## **APPELLANT/PETITIONER:** **SREEJITH A.K., AGED 37 YEARS S/O. KRISHNAN, AYOTHPARAKKAL, EERAMANGALAM P.O, BALUSSERY, KOZHIKODE 673 612.** **BY ADVS. SRI.K.S.BHARATHAN KUM.S.SWATHY SRI.ABEL ANTONY** ## **RESPONDENT/RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY SPECIAL SECRETARY TO GOVERNMENT, DEPARTMENT OF SOCIAL WELFARE (D), THIRUVANANTHAPURAM, PIN 695 001.** - **2 THE KERALA STATE PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, PIN 695 001.** - **3 THE REGIONAL OFFICER, KERALA PUBLIC SERVICE COMMISSION, REGIONAL OFFICE, CIVIL STATION, KOZHIKODE, PIN 673 020** W.A.No.218/2019 -2- **4 THE STATE COMMISSIONER, THE STATE COMMISSIONEREATE FOR PERSON WITH DISABILITIES, 1ST FLOOR, VTC BUILDING, SOCIAL WELFARE INSTITUTION COMPLEX, POOJAPPURA, THIRUVANANTHAPURAM 695 012.** ## **OTHER PRESENT:** **SR GP -SRI T. RAJASEKARAN NAIR.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.No.218/2019 -3- ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** The challenge in this writ appeal is against the judgment dated 13.11.2018 in W.P.(C) No.41025 of 2017. The appellant who is a physically handicapped person filed the above mentioned writ petition, mainly seeking the following reliefs:- “(i) declare that persons with disability are entitled to get the backlog vacancies from 07/02/1996 to the posts of Assistant Grade II, Clerk, Junior Clerk, LD Clerk/Cashier and the posts mentioned in Exhibit P7 while making appointments to public sector undertakings and Government Companies under the 1[st] respondent by reserving 3% of the posts aforementioned. (ii) issue a writ in the nature of mandamus commanding respondents 2 and 3 to appoint the petitioner to the suitable post pursuant to Exhibit P2/P3 after identification of the same as per Exhibit P7.” 2. The learned Single Judge, after considering the pleadings in the counter affidavit filed by the Public Service W.A.No.218/2019 -4- Commission, arrived at a conclusion that in view of Ext.P2 ranked list wherein the petitioner's name figured, the prayer No.(ii) could not be granted. The grievance of the petitioner is that the learned Single Judge had failed to consider the first relief sought for by the petitioner, properly. It is in the said circumstances that he filed the above mentioned writ appeal. 3. Heard the learned counsel for the appellant, the learned Standing Counsel appearing for respondents 2 and 3 and also the learned Government Pleader. 4. We will firstly consider the entitlement of the petitioner to the second relief sought for in the writ petition. Admittedly, the petitioner approached this Court only after the expiry of Ext.P2 ranked list. In the said circumstances, in the light of the decision of the Full Bench of this Court in **Vimala Kumari v. State [1994 (2) KLT 47]** , the petitioner is W.A.No.218/2019 -5- not entitled to the said relief sought for. 5. Now the question is whether the petitioner is entitled to raise any grievance regarding the nonconsideration of the first relief. In that regard, it is to be noted that earlier, some others who are similarly situated to the petitioner, in the sense physically handicapped persons who are entitled to get appointment by virtue of the provisions of Rights of Persons with Disabilities Act, 2016 (for short 'the Act') had approached this Court by filing W.P. (C) No.27234 of 2011 and this Court, as per Ext.P9 judgment, issued a declaration that handicapped persons as defined under the Act are entitled to get the backlog vacancies from 1996 in the post of Assistant Grade II/Clerk/Junior Clerk/LDC/Cashier while making appointments to the public sector undertakings and Government companies under the first respondent by reserving 3% to the handicapped W.A.No.218/2019 -6- persons. Evidently, such a declaration was made while the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 was in force. The said Act was repelled by the Act 49 of 2016, viz, the Rights of Persons with Disabilities Act, 2016. Going by the said Act, to be precise Section 34 thereunder, is that every 'appropriate Government' shall appoint in every Government establishment, not less than four per cent of the total number of vacancies in the cadre strength in each group of posts meant to be filled up with persons with benchmark disabilities, in accordance with the provisions. In the contextual situation, Sub Section (2) of Section 102 of Act 49 of 2016 assume relevance and it reads thus:- “Notwithstanding the repeal of the said Act, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act.” W.A.No.218/2019 -7- 5. Subsequent to the commencement of Act 49 of 2016 with a view to implement the direction of the Honourable Apex Court in S.L.P.No. 14889 of 2009 and in Civil Appeal No.9096 of 2013 and also various other decisions of this Court, the Government had issued Ext.P7 order dated 6.5.2017. The relevant portion of the said order reads thus: ബഹ: "സർകക്കാർ ഇകക്കാരരര്യം വവിശദമക്കായവി പരവിശശക്കാധവിച. സപ�� ശകക്കാടതവിയുടട SLP No.14889 of 2009 ടലെയുര്യം Civil Appeal No.9096/2013 ടലെയുര്യം വവിധവി നരക്കായതവിടന്റെയുര്യം വവിവവിധ ശകക്കാടതവി സർവ� വവിധവികളുടടയുര്യം ശകരളര്യം പബവികക് സക് കമമ്മീഷടന്റെ അഭവിപക്കായതവിടന്റെയുര്യം സൂചന 5 ടലെ ശകന്ദ്രസർകക്കാരവിടന്റെ ഓഫമ്മീസക് ടമശമക്കാറക്കാണ്ടതവിടന്റെയുര്യം ടവളവിച്ചതവിൽ സർകക്കാർ/ അർദ ഭരണ സർകക്കാർ/സസ്വയര്യം സക് ഥക്കാപനങ്ങൾ/ യൂണവിശവഴക് സവിറവികൾ/ സർകക്കാരവിൽ നവിനര്യം ഏടതങവിലര്യം തരതവിലള്ള സഹക്കായര്യം ലെഭവിക്കുന സക്കാപനങ്ങൾ/ ടപക്കാതുശമഖലെക്കാ സക്കാപനങ്ങൾ എനവിവവിടങ്ങളവിടലെ നവിയമനങ്ങളവിൽ നവിലെവവിൽ ഭവിനശശഷവികക്കാർകക്കായുള്ള 100 ശപക്കായവിൻറക് റവിസർശവ്വേഷൻ ശറക്കാസക് ററവിടലെ 33, 66 , 99 എനമ്മീ ഔടക് ഓഫക് ശടണുകൾ നവിശ്ചയവിചര്യം PWD Act നവിലെവവിൽ വന തമ്മീയതവിയക്കായ 7.2.1996 മുതൽ അര്യംഗപരവിമവിതർകക് ശകഡർ ടസ്ട്രെങക്തവിടന്റെ 3 % സര്യംവരണതവിനക് അര്യംഗമ്മീകക്കാരര്യം നൽകവിയുര്യം ഉതരവക് പുറടപ്പെടുവവിക്കുന. ടവി വവിഷയര്യം സര്യംബനവിച്ചക് വവിശദമക്കായ മക്കാർഗ്ഗനവിർശദശങ്ങൾ പവിനമ്മീടക് പുറടപ്പെടുവവിക്കുനതക്കാണക്.” 6. In the context of Ext.P7, it is relevant to refer to W.A.No.218/2019 -8- the counter affidavit of the Public Service Commission in the above writ petition. In the counter affidavit, it is stated that a supplementary list to Ext.P2 list was published for appointment of Differently Abled Candidates for the post and to compute the 3% reservation vacancies from 1.1.2008. At the same time, nothing is stated as to whether any steps were initiated for identifying the backlog vacancies from 7.2.1996 in terms of Ext.P7 order. It is to be noted that in the case on hand, no statement or counter affidavit has been filed by respondents 1 and 4. Therefore, it is not clear as to whether steps have been taken pursuant to Ext.P7 to assess the vacancies to which persons eligible to be appointed under the Act could be accommodated in tune with Ext.P7. In other words, there is nothing on record which would indicate as to whether in that regard, the number of vacancies since 7.2.1996 available for such appointment W.A.No.218/2019 -9- have been assessed or not. Needless to say that in that context, such appointments could be effected only in tune with Section 34 of the Act and in such circumstances, 3% of such vacancies in such identified categories of posts are to be assessed till the commencement of Act 49 of 2016 and after its commencement, it shall be 4% of vacancies in tune with Act 49 of 2016. In such circumstances, while confirming the judgment of the learned Single Judge declining relief No.(ii) to the petitioner, there will be a further direction to the respondents to take appropriate steps in tune with Section 34 of the Act and also Ext.P7, in terms of what is held above. Taking into account the intent and object of the Act, there cannot be any further delay in taking such steps. In such circumstances, such steps shall be taken as expeditiously as possible with a view to achieve the purpose intended to be achieved by the enactment of the Rights of W.A.No.218/2019 -10- Persons with Disabilities Act, 2016. In order to ensure the proper implementation of the Act and to ensure the appointment of persons against the vacancies earmarked, the fourth respondent is directed to take appropriate action in tune with the provisions under Section 80 of the Act. In such circumstances, the Registry is directed to communicate a copy of this judgment to the Chief Secretary, Government of Kerala, to take effective steps for implementation of the aforesaid direction, by different departments. The writ petition is disposed of, accordingly. Sd/- **C.T.RAVIKUMAR** sd/- **V.G.ARUN JUDGE** **JUDGE** Scl/8.02