Subeesh B. 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** **TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 OP(KAT) NO. 305 OF 2022** **ORDER DATED 07.04.2022 IN OA NO.583 OF 2022 OF KERALA** **ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **PETITIONER/S:** **SUBEESH B., AGED 36 YEARS S/O RAJU. P PANAYAN (H), MULLAKKODY COLONY, P.O. MULLAKKODY, KANNUR, PIN - 670602** **BY ADVS. KALEESWARAM RAJ THULASI K. RAJ SHILPA SOMAN** ## **RESPONDENT/S:** - **1 STATE OF KERALA SECRETARY TO GOVERRMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, ROOM NO.603, 6TH FLOOR, ANNEX II, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 DIRECTOR OF HEALTH SERVICES DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHPURAM, PIN - 695035** - **3 KERALA PUBLIC SERVICE COMMISSION THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, PIN - 695004** OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** **4 THE DISTRICT OFFICER KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, CIVIL STATION, KOZHIKODE, PIN – 673020** **SMT.VINITHA B., SENIOR GOVERNMENT PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** ## JUDGMENT ## SHOBA ANNAMMA EAPEN, J. The original petition has been filed challenging Ext.P2 order dated 07.04.2022 in OA (Ekm) No.583 of 2022 of the Kerala Administrative Tribunal, Thiruvananthapuram (Additional Bench, Ernakulam). The question to be considered is whether a single post vacancy notified as per Annex.A1 can be set apart for a differently abled candidate. 2. The petitioner/applicant is a candidate included in Annex.A2 ranked list for the post of Painter in the Health Services Department in Kozhikode District. The said list came into effect on 04.11.2020. The petitioner, being placed first in the ranked list, is aggrieved by the setting apart of the single post vacancy for a differently abled candidate. There is only a single post of Painter in the Health Services Department in Kozhikode District. It was also argued that setting apart a single post vacancy for differently abled candidates would amount to 100% reservation. The tribunal, referring to its common order in OA(Ekm) No.1671 of 2017 and connected OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** cases, wherein, while considering the very same issue, it was held that the reservation for differently abled candidates would apply even against a notified single cadre post, decided the issue against the petitioner/applicant. Hence, this original petition. 3. Learned counsel for the petitioner submitted that the single cadre post reservation is not permissible as held by the apex court in Postgraduate Institute of Medical Education & Research, Chandigarh v. Faculty Association & Others [(1998) 4 SCC 1]. Learned counsel for the petitioner further submitted that the tribunal did not consider the ratio decidendi contained in Indira Sawhney & Others v. Union of India [AIR 1993 SC 477]. It was further submitted that there is only one vacancy for the post of Painter in the Health Services Department in Kozhikode District and there was no physically handicapped candidate with low vision in the ranked list. Hence, according to the learned counsel, reserving the seat for a non-existing candidate not only vitiates the very purpose of the ranked list, but is also against public interest. 4. The issue involved in this case is whether 100% OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** reservation can be applied in a single cadre post for differently abled candidates. Learned counsel for the petitioner relied on the decisions in Indira Sawhney (supra) and Postgraduate Institute of Medical Education & Research (supra). In both these cases, the reservation of the post was in respect of candidates belonging to Scheduled Caste, Scheduled Tribe and Other Backward Classes. In Postgraduate Institute of Medical Education & Research (supra), the apex court held that the reservations under Article 16(4) of the Constitution of India must remain below 50% and under no circumstance be permitted to go beyond 50%. The ceiling of 50% applies only to reservation in favour of Other Backward Classes under Article 16(4) of the Constitution of India. The issue as regards reservation for differently abled candidates as against a single cadre post was decided by the apex court in Union of India & Another v. National Federation of the Blind [(2013) 10 SCC 772], wherein it was held that for effective implementation of 3% reservation for the differently abled, existing turns of 33, 66 and 99 were to be revised as 1, 34 and 67. The decision relied on by the petitioner relates to the reservation under Article 16(4) of the Constitution of OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** India, which would not apply to the reservations for differently abled candidates as provided under the Rights of Persons with Disabilities Act (Act 1 of 1996 and Act 49 of 2016). On implementing the directions in National Federation of the Blind (supra), the first turn has to be provided to the differently abled candidates even when the notified post was a single cadre post. In this context, it is appropriate to refer to paragraph nos. 40 and 41 of the decision in National Federation of the Blind (supra), which reads thus; 40) Another contention raised by the appellants is that the computation of reservation against the total vacancies in the cadre strength in Group A & B will violate the rule of 50% ceiling of reservation in favour of SC, ST and OBC as laid down by this Court in Indra Sawhney vs. Union of India and others AIR 1993 SC 477. This contention is also not tenable and is against the abovesaid judgment. It is difficult to understand as to how the computation of reservation against total vacancies in the cadre strength in Group A and B will violate 50% ceiling when its computation on that basis in Group C and D will not violate the said ceiling. There is no rationale of distinguishing between the manner of computation of reservation with regard to Group A and B posts on the one hand and manner of computation of reservation with regard to Group C and D posts on the other on this ground. 41) A perusal of Indra Sawhney (supra) would reveal that the ceiling of 50% reservation applies only to reservation in favour of other Backward classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** Constitution. In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 95 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rosters of reserved category or open category respectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%. Para 95 is reproduced as follows:- “95. ……all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same……” ## 5. In National Federation of the Blind (supra), the apex court considered the issue whether reservation for differently OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** abled candidates, as provided under the Rights of Persons with Disabilities Act, would violate the rule of 50% reservation as laid down in Indira Sawhney (supra), wherein it was held that the ceiling of 50% applies only to reservation in favour of Other Backward Classes under Article 16(4) of the Constitution of India, whereas the reservation in favour of persons with disabilities is horizontal and is one under Article 16(1) of the Constitution of India. It was further held that the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%. This principle would apply insofar as single cadre posts are concerned. When a post is identified under Section 32 of Act 1 of 1996 and under Section 33 of Act 49 of 2016, then, the differently abled persons cannot be kept out on the ground that it was a single cadre post. The decisions did not consider the reservations under the enactments, i.e., Act 1 of 1996 and Act 49 of 2016 - beneficial legislations, which are brought out to ensure equality of opportunity to differently abled persons who are in disadvantage to compete with the general candidates. The above enactments and reservations are in tune with Article 16(1) of the Constitution of India. Even going by the objectives OP(KAT) NO. 305 OF 2022 **==> picture [31 x 8] intentionally omitted <==** under Section 34(2) of the Act 2016 and the object of the enactment from 1996 onwards, it would enable such differently abled persons to demand for reservation. The Act 1 of 1996 and Act 49 of 2016 - beneficial legislations, have been enacted consciously to bring the differently abled to be equal to the abled. Hence, the tribunal, relying on the decision rendered by the apex court in National Federation of the Blind (supra), held that the reservation for differently abled candidates would apply even against a notified single cadre post. We do not find any reason to interfere with the impugned order passed by the tribunal. Accordingly, the original petition is dismissed. Sd/- ## A. MUHAMED MUSTAQUE JUDGE Sd/- ## SHOBA ANNAMMA EAPEN JUDGE bka/- OP(KAT) NO. 305 OF 2022 ..10.. ## **APPENDIX OF OP(KAT) 305/2022** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE NOTIFICATION DATED 29.12.2018 TO THE POST OF PAINTER GR.II IN HEALTH SERVICES DEPARTMENT IN KOZHIKODE DISTRICT, CATEGORY NO.285/2018** - **Annexure A2 TRUE COPY OF THE RANKED LIST NO, 310/2020/SS III IN CATEGORY NO.285/2018 TO THE POST OF PAINTER IN HEALTH SERVICES DEPARTMENT IN KOZHIKODE DISTRICT DATED 04.11.2020.** **Annexure A3** - **TRUE COPY OF THE QUESTIONNAIRE SUBMITTED BY THE APPLICANT DATED 03.02.2022 UNDER RTI ACT 2005** **Annexure A4** - **TRUE COPY OF THE REPLY NO.D1.2287/22 DATED 11.02.2022 ISSUED BY THE PUBLIC INFORMATION OFFICER, UNDER THE RIGHT TO INFORMATION ACT 2005** - **Annexure A5 TRUE COPY OF THE REPLY NO. DV (3)2174/16(2) BY THE STATE PUBLIC INFORMATION OFFICER/DISTRICT OFFICER, KPSC DATED 23.10.2021.** - **Annexure A6 TRUE COPY OF THE JUDGEMENT IN REVIEW PETITION(C) NO.1749/1997(POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH VS FACULTY ASSOCIATION AND OTHERS(AND CONNECTED CASES)(1998) 4 SCC 1** **Annexure A7 TRUE COPY OF THE ORDER DATED 25.01.2022 IN O.A(EKM) NO.365/2018** OP(KAT) NO. 305 OF 2022 ..11.. |**Exhibit P1**|**TRUE COPY OF THE MEMORANDUM OF THE OA**| |---|---| ||**(EKM)NO.583/2022 ALONG WITH ITS**| ||**ANNEXURES**| |**Exhibit P2**|**TRUE COPY OF THE JUDGMENT DATED IN**| ||**07.04.2022 O.A(EKM) NO.583/2022**|