Sudha M. v. Kerala Agricultural University and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 27[TH] DAY OF JUNE 2022 / 6TH ASHADHA, 1944** ## **WP(C) NO. 12015 OF 2022** ## **PETITIONER:** SUDHA.M., W/O.NIRANJAN G.BHOJAK, 12/239, BALAKSHNA LALJI TEMPLE COMPOUND, GUJARATHI STREET, SOUTH BEACH ROAD, CALICUT673 001. BY ADVS. GEORGE ABRAHAM BERIN BABY JOBY D JOSEPH ## **RESPONDENTS:** 1 KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR, VELLANIKKARA, KAU P.O.,TRICHUR-680 654. 2 VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, KAU P.O.,TRICHUR-680 654. 3 REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, KAU P.O.,TRICHUR-680 654. 4 GENERAL COUNCIL OF KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, KAU P.O.,TRICHUR-680 654, REPRESENTED BY ITS CHAIRMAN CUM VICE CHANCELLOR. BY ADV SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY SRI M.V ANAND-SC, SRI P.A HARISH AMICUS CURIAE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 12015 OF 2022** **2** ## **C.R.** ## **JUDGMENT** The interpretational purlieus of the words ‘recruitment year’, obtaining in Section 34 of the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘PWD Act’ for short), has been thrown upon for consideration of this Court because, the petitioner, who has low vision, seeks appointment against the vacancy statutorily earmarked for persons like him, which was unfilled in the previous year on account of the fact that a person with benchmark disability was not available. 2. It is the petitioner’s specific contention that when 4% reservation cannot be achieved in a particular year - which he asserts to be a ‘calendar year’ – solely because a person with a benchmark disability to one of the enumerated categories was not available, an attempt should have been made in the next ‘recruitment year’ to fill up the said **WP(C) NO. 12015 OF 2022** **3** vacancy with the specified category of person and if it is still unsuccessful, then it should have been filled up through interchange among the five categories enumerated in Section 34 (a) to (d). 3. However, the Kerala Agricultural University, which is the primary respondent in this case, takes the stand that Section 34(2) of the ‘PWD Act’ would only concede to the interpretation that when a particular vacancy is not able to be filled up on account of absence of a candidate with the benchmark disability, it will have to be carried forward to the next selection process and that only if during such also, it remains vacant, can the principle of interchange among the persons with benchmark disabilities be adopted. They assert that it is the only manner in which Section 34(2) can be interpreted. 4. When this matter was heard by this Court on an earlier occasion, it became apparent - as is also admitted - that the issues projected have not been **WP(C) NO. 12015 OF 2022** **4** covered by direct precedents, either of this Court or of other Courts or of the Honourable Supreme Court. I, therefore, requested Sri.P.A.Harish – learned counsel of this Court to assist me as an Amicus Curiae, since any decision that this Court may take in this Writ Petition may have far reaching ramifications in future. 5. Sri.P.A.Harish – learned Amicus Curiae, today made extensive submissions on the scope, sweep and the ambit of the ‘PWD Act’, showing me that there is a distinct and clear difference between the concepts of ‘recruitment year’ and ‘selection year’ in law. He explained that since neither of these phrases are defined under the ‘PWD Act’, one is forced to search for it in the analogous statutes or executive orders, which holds the field. He then pointed out that, though in the Kerala State and Subordinate Service Rules, 1958 (hereinafter referred to as the ‘KS & SSR Rules’) – which have been brought into force under the sanction of Article 309 of the Constitution of **5** ## **WP(C) NO. 12015 OF 2022** India – the words ‘recruitment year’ have not been defined, one will get a glimpse of the concept of ‘selection year’ from the Explanation to Rule 15(a) thereof. He showed me that the phrase ‘selection year’ used in the afore provision stipulates that it shall be the period from the date on which the ‘Rank List of candidates comes into force, to the date on which it expires’. 6. Sri.P.A.Harish thus submitted that, as far as a ‘selection year’ is concerned, it will take into its fold multiple calender years, depending upon the life of the Rank List prepared; but that when it comes to ‘recruitment year’ the concept may be slightly different. He explained that, going by the grammatical meaning of the words ‘recruitment year’, it can only mean that in which the recruitment is conducted and he informed me that the various Office Memorandums (OM for short) of the Ministry of Personnel, Public Grievance and Department of Personal Training of the Government of India have **WP(C) NO. 12015 OF 2022** **6** adopted this phrase in a common pattern. He invited my attention to the Office Memorandum dated 04.03.2014 – which, he said, was prepared on the basis of a judgment of the Honourable Supreme Court in **Union of India and Others v. N.R.Parmar** [ (2012) 13 SCC 340] – to define ‘recruitment year’ to mean the ‘year of initiating recruitment process against a vacancy year’. He predicated that, therefore, going by this O.M., a recruitment year would be the same as a calendar year, but then added that, when **N.R.Parmar** (supra) was overruled by the Honourable Supreme Court through **K.Meghachandra Singh and others v. Ningam** **Siro and Others** [(2020) 5 SCC 689], a new O.M. was issued by the afore department dated 13.08.2021, but wherein again, the term ‘recruitment year’ was defined to mean ‘the year in which the vacancy arises’. 7. Sri.P.A.Harish thus argued that, consistently, the concept of ‘recruitment year’ reflects either the year in which the vacancies **WP(C) NO. 12015 OF 2022** **7** arise, or the year in which recruitment is initiated. After saying as afore, the learned Amicus Curiae summated his observations to opine that, while the ‘selection year’ – as statutorily defined under the KS & SSR, would be the period during which the Rank List remains in force, which is to mean multiple years, a ‘recruitment year’ or ‘vacancy year’ can only be one ‘calendar year’ in which the recruitment is done, or a vacancy arises, as the case may be; and thus that multiple of them can become part of the same selection year. He concluded saying that, in such perspective, the University will be obligated to consider filling up of the carried forward vacancy in the enumerated category under the ‘PWD Act’ to the next ‘recruitment year’; and that if a person with that benchmark disability is not available in that year also, sanction of interchangeability among the five categories will have to be put into effect. 8. Dr.George Abraham – learned counsel for the petitioner, explained the factual circumstances of **WP(C) NO. 12015 OF 2022** **8** this case saying that the process for initiating selection to the post of Last Grade Servants in the University began in the year 2009 through Ext.P1 notification and that the Rank List was published only on 06.10.2018, on account of several litigations in the meanwhile, with a validity of three years, which has been admittedly extended by two periods of six months, thus having expired on 04.04.2022. He submitted that, as far as the appointment of persons with disability is concerned, though persons with benchmark disabilities under categories a, b and c of Section 34 of the ‘PWD Act’ were available, when it came to the fourth category, namely, persons with autism, intellectual disability, etc., no one was identified and therefore, that it was left unfilled. 9. Dr.George Abraham added that, when the next round of selection happened, it was again found that person with autism, intellectual disability, etc. were not available and that, therefore, at that time, the earlier vacancy ought to have been filled up by **WP(C) NO. 12015 OF 2022** **9** the next rank holder in the Rank List, notwithstanding his nature of disability, applying the principle of interchangeability among the categories. He argued that if this had been done, Sri.Biju C.K. - who was Rank No.2 among blind and low-vision candidates – ought to have been accommodated against the carried forward vacancy, so that his client, who is Rank No.3 in the said category, would have obtained the 101[st] vacancy which is reserved for persons with deafness and low-vision, as per the mandate of the applicable order of the Government of Kerala. He thus prayed that this Writ Petition be allowed, so that persons with benchmark disabilities can be accommodated appropriately to their benefits, which is the ultimate aim of the ‘PWD Act’. 10. In opposition to the afore, Sri.M.V.Anandan – learned Standing Counsel for the University, submitted that Section 34(2) of the ‘PWD Act’ provides that when any vacancy cannot be filled up **10** ## **WP(C) NO. 12015 OF 2022** due to non-availability of suitable persons with benchmark disability in a ‘recruitment year’, it should be carried forward to the next year and that it is only thereafter, can the concept of interchangeability be affected – and that too, if there is no one available in that year also. He submitted that in view of the matter, the word ‘recruitment year’ can only be construed to be the same as ‘selection year’ under the KS & SSR and hence that the petitioner cannot seek any relief in this Writ Petition. He, therefore, prayed that this Writ Petition be dismissed, adding that the aforementioned Sri.Biju C.K. has already been appointed against the 101[st] vacancy, which was set apart for persons with blindness and low-vision. 11. I am fully cognizant of the importance of the decision of this Court on the issues called upon to render in this case because they appear to have been never impelled before, or answered by a Court yet. At least, this Court has not been able to, even after a **WP(C) NO. 12015 OF 2022** **11** thorough survey, to obtain any such precedent. 12. As I have said in the exordial paragraph of this judgment, the answer to the issues in this case will depend upon the interpretation this Court gives to the ‘recruitment year’ viz a viz the ‘selection year’. If these two are found to be the same, then certainly, the petitioner would not obtain any relief and this Court would be justified in dismissing this Writ Petition. However, if it is to the contrary, then surely, the petitioner will become entitled to the relief, subject to certain changes that will have to be made by the University in the slots into which persons with disabilities have been now allotted. 13. It is indubitable that Section 34(2) of the ‘PWD Act’ provides that where in any ‘recruitment year’ the vacancy cannot be filled up due to nonavailability of a suitable person with benchmark disability, it shall be carried forward in the succeeding recruitment year; and that, if, in that year also, suitable person is not available, it must **WP(C) NO. 12015 OF 2022** **12** be first filled up with interchangeability among the five categories. The further stipulation therein – that when the said post cannot be filled up even through such an interchange, the employer can do so with a person other than with disability – is very important when I proceed to consider the forensic aspects applicable in this case. 14. As rightly stated by Sri.P.A.Harish – learned Amicus Curiae, the Explanation to Rule 15(a) of the KS & SSR defines the ‘selection year’ as being the period from the date on which the Rank List of candidates comes into force, to the date on which it expires. In other words, ‘selection year’, as far as the KS & SSR is concerned, is the period of life of a Rank List. The crucial question is whether a ‘recruitment year’ also construes as afore, or whether it is a ‘calendar year’ or something else. Unfortunately, this Court cannot obtain any reference on this issue from the Statutory provisions because the words ‘recruitment year’ has not been, **WP(C) NO. 12015 OF 2022** **13** concededly, defined anywhere. The only inputs from which where this Court can find some assistance are the various Office Memorandums issued by the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training Government of India. 15. Again, as rightly stated by Sri.P.A.Harish – learned Amicus Curiea, in the Office Memorandum dated 04.03.2014 – which relied upon **N.R.Parmar** (supra) – ‘recruitment year’ was unequivocally defined to be the year of initiating the recruitment processes against the ‘vacancy year’. Of course, there is no contest regarding the concept of 'vacancy year' because, it is admitted to be the calendar year in which the vacancy arises. 16. Thereafter, when **N.R.Parmar** (supra) was overruled, the Government of India came up with the subsequent Office Memorandum dated 13.08.2021, altering the method of seniority to be reckoned among various categories, but retaining the definition of **14** ## **WP(C) NO. 12015 OF 2022** the word ‘recruitment year’ to be the year in which the vacancy arises. Therefore, going by these two Office Memorandums, there can be little doubt that what was intended was either a ‘calendar year’, in which the recruitment was initiated; or the year in which the vacancy arose, namely the ‘vacancy year’, with both of them having analogous meaning. 17. I do not require to travel further for a confirmation of this because, in **Harishchandra Ram v.** **Mukh Ram Dubey and Others** [1994 Supp (2) SCC 490], the Honourable Supreme Court, in reference to the words ‘recruitment year’ declared that it means the year in which the recruitment takes place and not each successive year in which the vacancy exists. Therefore, it is indubitable that the words ‘selection year’ – as defined under the KS & SSR; ‘recruitment year’ and ‘vacancy year’ are different and distinct concepts, though it may have interplaying relevance to each other. 18. When one analyses the nuances of the ## **WP(C) NO. 12015 OF 2022** **15** differences among the afore three concepts, it becomes rather apodictic that a ‘selection year’ can take in multiple recruitment years, as also multiple vacancy years; while a ‘recruitment year’ or ‘vacancy year’ can only mean the respective calendar years in which either the recruitment happens or when the vacancy arises, as the case may be. 19. When one views the factual matrix of this case with the afore prism of reasoning, it would be rendered without need for expatiation that, as far as the ‘selection year’ is concerned, it means the period from 06.10.2018 to 04.04.2022, during when the Rank List continued to be in force, with at least two extensions, which means the said ‘selection year’ would have taken in three or four ‘recruitment years’, depending upon whether vacancies arose in those years. I say so because, a year in which no vacancy arises would see no recruitment and therefore, would not construe to be a ‘recruitment year’ and hence, the concept of a ‘vacancy year’ is ## **WP(C) NO. 12015 OF 2022** **16** indelibly coalesced with the concept of ‘recruitment year’, because without the former, the latter will obtain little relevance. 20. Coming back to the specific facts of this case, it is undisputed that when the first round of appointments was made, persons with benchmark disabilities under the first three categories of Section 34(1) of the ‘PWD Act’ were available, but a candidate with autism, intellectual disability etc. was not. Obviously, the stipulated vacancy, namely, vacancy No.7 to 6 as per rotation created by the Government was carried forward to be filled up whenever the next arising vacancies were to be dealt with. Of course, this Court, at this point, does not know whether further vacancy was filled up in the same 'recruitment year' or another and as I have said above, this is very crucial. 21. Continuing with the facts, the University takes the stand that the 75[th] vacancy, which ought to have been given to a person with Autism, intellectual **WP(C) NO. 12015 OF 2022** **17** disability, etc. stands carried forward to the next 'selection year', meaning during the next selection process through a fresh Rank List; and cannot be, therefore, offered to anyone else, including the petitioner or the person above him in the Rank List with visual disability. As I have already seen above, this stand of the University cannot be approved, if the next round of recruitment was done in a different “calender year”; in which event, if there was no person with the bench mark disability of Autism,intellectual disability etc. at that time also, the 75[th] vacancy ought to have been filled up with the next rank holder in the blind category, namely Sri.Biju.C.K and the 101[st] vacancy - which, as per rotation of the Government, ought to have been given to a person with blindness and low vision - with the petitioner herein. However, instead of doing so, the University accommodated Sri.Biju.C.K. in the 101[st] vacancy, without offering the 75[th] vacancy to him and thus denied appointment to the petitioner on the ## **WP(C) NO. 12015 OF 2022** ## **18** premise that he will have to await the next selection. 22. The inherent flaw in the afore reasoning of the University is that there is absolutely no certainty as to when the next “selection year” would arise, since this would depend upon numerous tangible and intangible variables, including litigations and the delay for the process to commence and complete. To illustrate, qua the “selection year” we are concerned with herein, its processes began in the year 2009 and the Rank List came into effect only about nine years thereafter, to last for another four years or so. Axiomatically, the next selection processes may take similar – perhaps a little lesser - amount of time and for a person to obtain appointment under the “principles of interchangeability of the categories”, will be a long and uncertain wait, during the entire period of which, the mandatory percentile of reservation for Persons with Disabilities would remain unachieved in ## **WP(C) NO. 12015 OF 2022** ## **19** the particular cadre/service. I do not think that this is the manner in which the “PWD Act” is intended to, or should be allowed to operate because, ideally, the percentage of persons with disabilities as statutorily mandated must be attempted to be achieved without fail always. 23. The summation of my observations above is that a “Recruitment Year” cannot be a “Selection Year” as defined under the KS & SSR and can only be construed to be the year in which vacancies are available and in which recruitment is attempted. 24. Beginning from where I left off on this aspect earlier, a 'recruitment year' is relevant only when vacancy/vacancies arise and not otherwise and therefore, assuming a case where successive calender years obtain no vacancy at all, then the successive “recruitment year” would only mean the next year in which such a vacancy arises, resultant to which, recruitment is possible. 25. The above being said, this Court has not been **WP(C) NO. 12015 OF 2022** **20** given specific inputs as to whether the vacancies filled up by the University were done in a particular year or on different years. This issue has a sure importance because, if all the vacancies had been filled up in one 'recruitment year', then the principle of interchangeability may not be able to be applied; while, if it had been done in multiple years, then, depending upon the number of “recruitment years”, in which the vacancy was left unfilled interchangeability, ought to have been adopted and enforced. In the afore circumstances, I order this writ petition and direct the competent Authority of the Kerala Agricultural University to review the appointments with respect to the Rank List in question, with specific reference to persons with blindness and low vision benchmark disability and ascertain whether the 75[th] and the 101[st] vacancy were attempted to be filled up in the same 'recruitment year'. If it is found otherwise, then certainly, they **WP(C) NO. 12015 OF 2022** **21** will proceed to shift Sri.Biju.C.K from the 101[st] vacancy to the 75[th] vacancy, applying the principle of interchangeability and offer the latter vacancy to the petitioner, after satisfying that he is a person with the benchmark disability of blindness and low vision. This shall be done as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. Before I close, I must place on record the invaluable assistance which this Court obtained from the incisive and decisive research done by Sri.P.A.Harish – learned Amicus Curiae. On the various intricate nuances, facets and attributes of the principles involved in this case, particularly in compiling the various Office Memorandums and such other materials, which otherwise, could not have been perhaps available to this Court. Sd/- ## **DEVAN RAMACHANDRAN** ## **JUDGE** RR/SAS **WP(C) NO. 12015 OF 2022** **22** ## **APPENDIX OF WP(C) 12015/2022** PETITIONER'S EXHIBITS |Exhibit P1|TRUE COPY OF THE NOTIFICATION ISSUED BY THE| |---|---| ||REGISTRAR, KERALA AGRICULTURAL UNIVERSITY| ||DATED 22.10.2009.N| |Exhibit P2|TRUE COPY OF RANK LIST PUBLISHED BY THE| ||KERALA AGRICULTURAL UNIVERSITY.| |Exhibit P2 A|TRUE COPY NOTIFICATION DATED 24.11.2021| ||ISSUED BY KERALA AGRICULTURAL UNIVERSITY.| |Exhibit P3|TRUE COPY OF THE PROCEEDINGS OF THE KERALA| ||AGRICULTURAL UNIVERSITY DATED 23.03.2021.| |Exhibit P4|TRUE COPY OF THE JUDGMENT IN WPC| ||NO.27057/2019 AND CONNECTED MATTERS DATED| ||15.02.2021.| |Exhibit P5|TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY| ||THE REGISTRAR IN WPC NO.18813/2020.| |Exhibit P6|TRUE COPY OF THE JUDGMENT IN RP NO.394/2021| ||AND CONNECTED MATTERS DATED 02.08.2021.| |Exhibit P7|TRUE COPY OF COMMUNICATION ISSUED BY THE| ||KERALA AGRICULTURAL UNIVERSITY DATED| ||18.12.2021.| |Exhibit P8|TRUE COPY OF INTERIM ORDER PASSED BY THIS| ||HON'BLE COURT IN IA NO.1/2022 IN WPC| ||NO.450/2022 DATED 14TH MARCH, 2022.| |RESPONDENTS' EXHIBITS|| |Exhibit R3a|TRUE COPY OF THE KAU STATUE NOTIFICATION NO| ||GA/E3/16130/91 DATED 14.6.2008| |Exhibit R3b|TRUE COPY OF THE SECTION 43 OF KAU ACT| ## **WP(C) NO. 12015 OF 2022** ||**23**| |---|---| |Exhibit R3c|TRUE COPY OF THE UNIVERSISTY NOTIFICATION NO| ||NO.GA/K2/30830/1992(II) DATED 22.10.2009| |Exhibit R3d|TRUE COPY OF THE KAU STATUE NOTIFICATION NO| ||GA/E3/41421/2009 DATED 20.12.2012| |Exhibit R3e|TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO| ||11/2011/H.EDN DATED 4.2.2011| |Exhibit R3f|TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO| ||12/2019/SJD/ DATED 31.10.2019| |Exhibit R3g|TRUE COPY OF THE RELEVANT PORTION OF GO (P)| ||NO 19/2020/SJD DATED 25.8.2020| |Exhibit R3h|TRUE COPY OF THE UNIVERSITY ORDER NO| ||GA/KA/5413/2000 DATED 3.10.2018| |Exhibit R3i|TRUE COPY OF THE MINUTES OF THE COMMITTEE| ||HELD ON 5.7.2021| |Exhibit R3j|TRUE COPY OF THE RULE 34(2) OF RPWD ACT 2016|