State of Kerala v. Anandan Unni, Prithviraj C., Rijo KuriaKose, Santhosh Raj B. & Kerala Public Service Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 17[TH] DAY OF JANUARY 2023/27TH POUSHA, 1944** **O.P(KAT).NO.110 OF 2022** **AGAINST THE ORDER DATED 17.12.2021 IN O.A.(EKM).NO.630/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 & 3 IN O.A:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT DEPARTMENT OF AGRICULTURE, THIRUVANANTHAPURAM, PIN – 695001, KERALA.** - **2 THE DIRECTOR DEPARTMENT OF AGRICULTURE DIRECTORATE OF AGRICULTURE VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695035, KERALA.** **BY SRI.B.UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS & 2ND RESPONDENT IN O.A.:** - **1 ANANDAN UNNI AGED 25 YEARS S/O SIVAN K.K, KALAYIL HOUSE KANJIRAMATTOM P.O., ERNAKULAM KERALA, PIN - 682315** - **2 PRITHVIRAJ C. AGED 28 YEARS S/O PADMANABHAVAN, CHALIL HOUSE EDAYILEKADU, VALIYAPARAMBA P.O KASARAGODE, PIN – 671312** **O.P.(KAT).NO.110 OF 2022 :: 2 ::** - **3 RIJO KURIAKOSE AGED 28 YEARS S/O KURIAKOSE, ADUKUZHITHANDEL HOUSE MARIKA P.O, PALAKUZHA MUVATTUPUZHA ERNAKULAM, PIN - 686662** - **4 SANTHOSH RAJ B. AGED 32 YEARS S/O SUBBAPATTALI THEKKEKARA HOUSE, KARADKA P.O, KASARKODE, PIN - 671542** - **5 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY THE SECRETARY THULASI HILLS, PATTOM PALACE P.O THIRUVANANTHAPURAM, KERALA, PIN - 695004** **BY ADV.SMT.K.P.GEETHA MANI BY ADV.SRI.P.N.SANTHOSH BY SRI.P.C.SASIDHARAN, SC, KPSC** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **O.P.(KAT).NO.110 OF 2022 :: 3 ::** ## **J U D G M E N T** ## **A.K. Jayasankaran Nambiar, J.** The State is the petitioner before us in this O.P.(KAT) that impugns the order dated 17.12.2021 of the Kerala Administrative Tribunal in O.A(EKM).No.630 of 2019. The brief facts necessary for disposal of the O.P.(KAT) are as follows: The applicants before the Tribunal were candidates included in a rank list published by the Kerala Public Service Commission [PSC] for the post of Agricultural Assistant Grade II in a Special Recruitment for PH Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low Vision, for filling up 3% of the backlog vacancies resulting from the recruitments carried out during the year 2004 to 2007. The rank list was published on 4.9.2018, and it is not in dispute that the applicants featured in the said rank list. When the appointment chart was prepared, the applicants noticed that only four persons had been granted appointment, and that the applicants were not included **O.P.(KAT).NO.110 OF 2022 :: 4 ::** therein. It is aggrieved by the same, and contending that the required number of vacancies as contemplated under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereinafter referred to as the '1995 Act'] had not been reported to the PSC for enabling their appointments, that the applicants approached the Tribunal. 2. Before the Tribunal, the Government relied on Annexure A4 Government Order and the Annexure to the said G.O. which directed that 798 posts in Class III [3% of 26616] in Government Departments will be set apart as backlog vacancies and reserved exclusively for appointment of Persons with Disabilities. The Annexure to the said G.O. indicated that 8 vacancies were reserved in Class III posts in the Agricultural Department. The contention of the Government was that of these 8 vacancies, 4 were earmarked for and subsequently filled from among the LD clerks and only 4 remained to be filled through Agricultural Assistants. 3. The Tribunal, initially, by an interim order dated 22.7.2021, directed the provisional reporting of 12 vacancies for the post of Agricultural Assistant Grade II in the category earmarked for persons **O.P.(KAT).NO.110 OF 2022 :: 5 ::** with disabilities. Thereafter, the Tribunal proceeded to pass the final order dated 17.12.2021 that is impugned before us. The Tribunal, in the final order, placed reliance on the actual number of direct recruitments that were carried out during the period from 1.1.2004 to 31.12.2007 in the category of Agricultural Assistant Grade II, and arrived at a figure of 20 vacancies [3% of 658 direct recruitments carried out during the period aforementioned] as available for appointment from among the candidates included in Annexure A2 rank list. The relevant findings of the Tribunal are at paragraphs 8 and 9, which read as follows: “8. The issue therefore boils down as to the backlog vacancies which were available during the period from 2004 – 2007 for advice and appointment from physically handicapped candidates against the 3% quota prescribed under Section 33 of Act 1 of 1996. As admitted in the reply statement of the third respondent presented on 6.10.2021 and also the additional reply statement dated 6.12.2021 filed on 15.12.2021, 658 appointments were carried out to the post of Agricultural Assistant Grade II during the period from 2004 – 2007. Though the 3% ratio is to be invoked against the cadre strength, insofar as the Act was brought into force in 1995 and Annexure A1 notification was issued for filling up the backlog vacancies for 2004 – 2007 pursuant to the Government order, G.O.(P) No.7/2011/SWD dated 24.01.2011, the ratio had to be invoked against the appointments carried out during the relevant period. It is borne out from Annexure A21 seniority list and the additional reply statement of the third respondent that 658 appointments were made during the relevant period and on invoking the ratio, 20 vacancies were available for advice and appointment of physically handicapped persons. As evidenced from Annexure A3 appointment chart, only 4 advices were issued, of which one did not join and the NJD vacancy arising therefrom was also filled up from the list. Therefore, 16 more **O.P.(KAT).NO.110 OF 2022 :: 6 ::** vacancies remained to be filled up to satisfy the 3% quota. 9. This Tribunal as per its interim order dated 22.7.2021 directed provisional reporting of 12 vacancies to the second respondent which it is admitted has been complied with. Insofar as these vacancies are provisionally reported and in view of the finding that 16 more appointments were to be carried out to the post of Agricultural Assistant Grade II to satisfy the 3% backlog vacancies for the period from 2004 – 2007, the applicants are entitled to succeed. The Original Application is accordingly disposed of directing the third respondent to intimate 12 vacancies of Agricultural Assistants Grade II as regular vacancies for advice and appointment against the 12 provisionally reported vacancies, within a period of three weeks from the date of receipt of a copy of this order. On receipt of such intimation, the Public Service Commission, i.e. the second respondent, will ensure that advices are issued within a period of two weeks therefrom. On receipt of the advices, the second respondent will ensure that the appointment orders are issued without further delay.” 4. We have heard Sri. Unnikrishna Kaimal, the learned Government Pleader for the petitioner State and Smt. K.P.Geetha Mani, the learned counsel for the respondents. 5. The submission of Sri. B. Unnikrishna Kaimal, the learned Government Pleader on behalf of the petitioner is essentially that when Annexure A4 G.O. together with its Annexure had clearly indicated that the total number of vacancies available for filling by persons with disabilities in the Agricultural Department was only 8, **O.P.(KAT).NO.110 OF 2022 :: 7 ::** and 4 out of the 8 vacancies had already been taken up by candidates for the post of LD Clerk in the Agricultural Department, what remained for filling up was only 4 vacancies in the post of Agricultural Assistant Grade II. He points out that the said 4 vacancies were in fact filled up from candidates in Annexure A2 rank list, and therefore, no further vacancies were available for offering to the applicants before the Tribunal. It is also contended that the Annexure A4 G.O. was not under challenge before the Tribunal, and therefore the Tribunal could not have adopted a different yardstick for determining the existing vacancies for filling up from among candidates included in Annexure A2 rank list. 6. Per contra, the submission of Smt. K.P.Geethamani, the learned counsel for the respondents is essentially that the Tribunal proceeded on data that was more relevant for the purposes of the 1995 Act. She makes a pointed reference to the provisions of the said Act to demonstrate that the obligation under the 1995 Act is to reserve 3 percent of the total vacancies in the cadre strength of the post in question, and insofar as the Tribunal had gone by the figures relating to the actual appointments, through the direct recruitment method, effected between 2004 and 2007, the adoption by the Tribunal of 3% **O.P.(KAT).NO.110 OF 2022 :: 8 ::** of the total recruitments made during the aforementioned period cannot be faulted, as it was the more realistic and practical method to determine the number of vacancies that had to be reserved for disabled candidates. At any rate, she contends that such a determination of the existing vacancies would accord with the objects sought to be achieved by the 1995 Act. She also points out that the method followed by the Tribunal is in accordance with the directions of the Supreme Court in **Union of India and Another v. National Federation of the Blind and Others – [(2013) 10 SCC 772]** . 7. On a consideration of the rival submissions, we find force in the contentions of the learned counsel for the respondents that the impugned order of the Tribunal cannot be found fault with. The Tribunal, in our view, has correctly appreciated the object sought to be achieved by the 1995 Act and proceeded on a more reliable estimation of the actual vacancies that had to be reported for the benefit of the persons with disabilities who were included in Annexure A2 rank list. Vis-a-vis the material relied upon by the Government ie. Annexure A4 Government Order read with the Annexure thereto and the determination of the vacancies by reference to the actual number of direct recruitments effected to the post for the period aforementioned, **O.P.(KAT).NO.110 OF 2022 :: 9 ::** we find that the latter was the better method especially in the light of the object sought to be achieved through the 1995 Act. That being the case, we are of the view that the directions in the impugned order of the Tribunal do not call for any interference. We therefore uphold the said order of the Tribunal, and dismiss the O.P.(KAT) as devoid of merit. The petitioner shall take steps to comply with the directions of the Tribunal within an outer time limit of three months from the date of receipt of a copy of this judgment. The O.P.(KAT) is dismissed. **Sd/-** **A.K.JAYASANKARAN NAMBIAR JUDGE** **Sd/MOHAMMED NIAS C.P. JUDGE** **prp/17/1/23** **O.P.(KAT).NO.110 OF 2022 :: 10 ::** ## **APPENDIX OF O.P(KAT).NO.110/2022** ## **PETITIONER ANNEXURES:** |**Annexure A1**|**A TRUE COPY OF THE GAZETTE NOTIFICATION**| |---|---| ||**DATED 11.04.2014 PUBLISHED VIDE CATEGORY**| ||**NO.97/2014 BY THE 2ND RESPONDENT.**| |**Annexure A2**|**A TRUE COPY OF THE RANK LIST PUBLISHED BY**| ||**THE 2ND RESPONDENT ON 04.09.2018.**| |**Annexure A3**|**A TRUE COPY OF THE APPOINTMENT CHART**| ||**SHOWING THE DETAILS OF APPOINTMENT OF 4**| ||**PERSONS.**| |**Annexure A4**|**A TRUE COPY OF THE G.O.(P)NO. 7/2011 /SWD**| ||**DATED 24.01.2011.**| |**Annexure A5**|**TRUE COPY OF THE REPLY DATED 19.07.2019**| ||**RECEIVED FROM PRINCIPAL AGRICULTURAL**| ||**OFFICE, KASARGOD.**| |**Annexure A6**|**TRUE COPY OF THE REPLY DATED 09.07.2019**| ||**RECEIVED FROM PRINCIPAL AGRICULTURAL**| ||**OFFICE, KANNUR.**| |**Annexure A7**|**TRUE COPY OF THE REPLY DATED 30.07.2019**| ||**RECEIVED FROM PRINCIPAL AGRICULTURAL**| ||**OFFICE, KOZHIKODE.**| |**Annexure A8**|**TRUE COPY OF THE REPLY DATED 17.07.2019**| ||**RECEIVED FROM PRINCIPAL AGRICULTURAL**| ||**OFFICE, WAYANAD.**| |**Annexure A9**|**TRUE COPY OF THE REPLY DATED 24.07.2019**| ||**RECEIVED FROM PRINCIPAL AGRICULTURAL**| ||**OFFICE, MALAPPURAM.**| |**Annexure A10**|**TRUE COPY OF THE REPLY DATED 07.08.2019**| **O.P.(KAT).NO.110 OF 2022 :: 11 ::** **RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE, THRISSUR.** **Annexure A11 TRUE COPY OF THE REPLY DATED 18.07.2019 RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE, ERNAKULAM.** **Annexure A12 TRUE COPY OF THE REPLY DATED 29.08.2019 RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE, ALAPPUZHA.** **Annexure A13 TRUE COPY OF THE REPLY DATED 30.07.2019 RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE, IDUKKI.** **Annexure A14 TRUE COPY OF THE REPLY DATED 18.07.2019 RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE, KOTTAYAM.** - **Annexure A15 TRUE COPY OF THE REPLY DATED 01.08 2019 RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE, PATHANAMTHITTA.** - **Annexure A16 TRUE COPY OF THE REPLY DATED 17.07.2019 RECEIVED FROM PRINCIPAL AGRICULTURAL OFFICE. KOLLAM.** - **Annexure A17 TRUE COPY OF THE INFORMATION RECEIVED FROM 2ND RESPONDENTS OFFICE UNDER RTI ON 25.01.2019.** **Annexure A18 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 30.12.2016 PUBLISHED VIDE CATEGORY NO.444/2016 BY THE 2ND RESPONDENT** **Annexure A19 TRUE COPY OF THE APPLICATION FILED BY THE 1ST APPLICANT UNDER RTI ON 15.02.2020 AND THE REPLY DATED 16.03.2020 RECEIVED FROM THE 3RD RESPONDENTS OFFICE.** **O.P.(KAT).NO.110 OF 2022 :: 12 ::** - **Annexure R3(a) TRUE COPY OF G.O.(MS) NO.35/95/AGRI DATED 13.02.1995** - **Annexure R3(b) TRUE COPY OF G.O.(RT) NO.93/2019/ AGRI DATED 12.07.2019** - **Annexure A20 TRUE COPY OF THE RELEVANT PAGES OF THE LAST APPOINTMENT CHART DOWNLOADED FROM THE 2ND RESPONDENTS WEB SITE.** - **Annexure A21 A TRUE COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS NO.S.E.(2)3366/12 DATED 30.09.2013 AND FINAL SENIORITY LIST OF AGRICULTURAL ASSISTANT AS ON 28.02.2011 ISSUED BY THE 3RD RESPONDENT.** - **Exhibit P1 TRUE COPY OF THE OA (EKM) NO.630/2019 ALONG WITH ANNEXURES.** - **Exhibit P2 TRUE COPY OF THE MISCELLANEOUS APPLICATION M.A.(EKM) NO.2288/2019 ALONG WITH ANNEXURES.** - **Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT DATED 31.12.2019** - **Exhibit P4 A TRUE COPY OF THE REJOINDER DATED 06.02.2020 FILED BY THE APPLICANTS ALONG WITH ANNEXURES** **Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PSC DATED 04.08.2020** **Exhibit P6 TRUE COPY OF THE MISCELLANEOUS APPLICATION MA(EKM) NO.1128/2020 FILED BY THE APPLICANT WITH ANNEXURE.** **Exhibit P7 TRUE COPY OF REPLY STATEMENT FILED BY THE 3RD RESPONDENT ON 11.11.2020, EXPLAINING THE DATE OF OCCURRENCE OF VACANCIES WITH** **O.P.(KAT).NO.110 OF 2022 :: 13 ::** ## **ANNEXURES.** **Exhibit P8 A TRUE COPY OF THE MISCELLANEOUS APPLICATION MA (EKM) NO.1798/2020.** **Exhibit P9** **A TRUE COPY OF THE MISCELLANEOUS APPLICATION MA(EKM) NO.95/2021.** **Exhibit P10 A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 3RD RESPONDENT DATED 09.12.2021** **Exhibit P11 TRUE COPY OF THE ORDER DATED 17.12.2021 IN OA(EKM) 630/2019** ## **RESPONDENTS EXHIBITS:** **Exhibit R1(B) True copy of the Interim Order dated 22/07/2021 in O.A. (EKM) No. 630/2019 issued by the Kerala Administrative Tribunal** **Exhibit R1(C) A true copy of the relevant pages of the Appointment Chart issued by the PSC on 18/09/2021** **Exhibit R1(D) A true copy of the relevant page of the document downloaded from the website of Kerala Legislature** **Exhibit R1(E) A true copy of the relevant pages of the Appointment Chart issued by the PSC on 1701-2022** **Exhibit R1(F) A true copy of the relevant pages of the Appointment Chart issued by the PSC on 0803-2022 Exhibit R1(A) A true copy of the Reply Statement filed by** **O.P.(KAT).NO.110 OF 2022 :: 14 ::** **the 2nd respondent in O.A. (EKM) No. 630/2019 before the Kerala Administrative GTribunal** ## **Exhibit R1(G)** ## **Exhibit R1(H)** **Exhibit R1(I)** **A true copy of the Letter issued by the Principal Agricultural Officer, Ernakulam to the 1st Respondent on 24-05-2022 along with the details of office in which vacancies are available.** **TRUE COPY OF THE RTI APPLICATION FILED BY THE RESPONDNET NO 1 TO 3 ON 19.7.2022** **TRUE COPY OF THE REPLY RECEIVED FROM PRINCIPAL AGRICULTURE OFFICE DATED 29.7.2022** **//TRUE COPY//**