Sunil Kumar B. and Shiji Francis v. Cochin University of Science and Technology and others

WP(C).No.32638 OF 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **WP(C).No.32638 OF 2019(D)** ## **PETITIONER/S:** |**1**|**SUNIL KUMAR B.,**| |---|---| ||**AGED 41 YEARS**| ||**S/O.GOPI, BAMMANCHERI HOUSE, KEEZHATOOR,**| ||**THALIPARAMBU P.O., KANNUR DISTRICT, PIN-670141.**| |**2**|**SHIJI FRANCIS,**| ||**AGED 37 YEARS**| ||**S/O.FRANCIS, THIRUVANMURIYIL HOUSE, BLOCK NO.207,**| ||**VECHUCHIRA P.O., KAKKUDUKKA, PATHANAMTHITTA**| ||**DISTRICT, PIN-686511.**| **BY ADVS. SRI.AMEER.K.M. SMT.O.A.NURIYA SMT.M.J.JESNA** ## **RESPONDENT/S:** |**1**|**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,**| |---|---| ||**CUSAT P.O., PIN-682022, REP. BY ITS REGISTRAR.**| |**2**|**THE VICE CHANCELLOR,COCHIN UNIVERSITY OF SCIENCE**| ||**AND TECHNOLOGY, CUSAT P.O., PIN-682022.**| |**3**|**KERALA PUBLIC SERVICE COMMISSION,**| ||**TRIVANDRUM, REPRESENTED BY ITS SECRETARY.**| |**4**|**STATE OF KERALA,**| ||**REPRESENTED BY SECRETARY, HIGHER EDUCATION**| ||**DEPARTMENT, SECRETARIAT, TRIVANDRUM.**| ||**BY SRI.S.P.ARAVINDAKSHAN PILLAI, SC, COCHIN**| ||**UNIVERSITY OF SCIENCE AND TECHNOLOGY**| |**OTHER PRESENT**<br>**:**|| **SR.G.P. P.M. MANOJ; ADV. P.C.SASIDHARAN SC FOR KPSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.32638 OF 2019 2 ## **CR** ## **JUDGMENT** Dated this the 24[th] day of August 2020 The petitioners, who are differently abled persons, are included in Ext.P3 rank list for appointment to the post of Sweeper cum Cleaner. 4 candidates with locomotor disability and one candidate with hearing impairment are included in Ext.P3 rank list, who are found eligible for special reservation, as per G.O.(P) No.8/17/S.J.D dated 06.05.2017 and the list is published as an addendum to the rank list Ext.P2 published on 28.12.2018. These rank lists are published on the basis of a notification issued by the University on 30.12.2008, based on which a short list was published on 11.02.2011. 2. It is stated that on account of a series of litigation the appointments could not be made. In the meanwhile the appointments of non-teaching staff in the Universities in the State were brought under the purview of PSC. However no selection is so far made for the post of Sweeper cum Cleaner by PSC. Petitioners claim that all of them are entitled to be appointed, as the University has never filled any vacancies from among the differently abled candidates except one candidate from Ext.P2 list with hearing impairment. 3. According to the University, appointments from Ext.P2 and P3 rank lists were made against 43 vacancies which arose WP(C).No.32638 OF 2019 3 after 01.01.2008. Out of the 43 turn no.1 and 34 were set apart for differently abled candidates. Vacancy at turn no.1 could not be filled up in the absence of blind/low vision candidates. Vacancy at 34 was filled up by appointing the candidate with hearing impairment from Ext.P3 list. One vacancy is kept unfilled based on the interim order passed in W.P.(C) No.3811/2019, filed by another candidate included in Ext.P3 list. According to the University, if at all any backlog vacancies are to be filled up from differently abled candidates that can be only after conducting a special recruitment and University cannot make any appointment against backlog vacancies from Exts.P2 or P3 lists, as per the Government Orders in force. It is stated that University has already addressed the Government in Ext.R1(b) letter dated 05.09.2019 requesting to permit it to appoint the candidates in Ext.P3 list against vacancies which arose between 2004 to 2007, by creating supernumerary posts and seeking permission for filling up the vacancy earmarked for a particular category of disability by passing over to the next category of disability in the event of non-availability of the particular category. But the Government did not give any reply. It is stated that the turn of those like petitioners with locomotor disability comes at 67[th] vacancy. Therefore it is stated that petitioners are not entitled to be appointed from Ext.P3 list. 4. On a query from this court the learned Standing Counsel WP(C).No.32638 OF 2019 4 fairly submitted that no appointment was made from differently abled candidates in any of the previous selections. That means the entire backlog vacancies from 07.02.1996 against the 3% quota admissible to them are to be filled up. The contention of the University that Government Orders stand in the way of filling up backlog vacancies cannot be correct, when petitioners have produced Ext.P6 circular issued by Government by which direction is issued to the Universities also to take steps to fill up the vacancies for differently abled. 5. Section 33 of the Persons with Disabilities (Equal Opportunities and Full Participation) Act, 1995 and Section 34 of the Right of Persons with Disabilities Act, 2016, mandate the appointment of differently abled candidates against 3% of the vacancies from 07.02.1996 and 4% vacancies from 19.04.2017, in establishments including the respondent University. 6. In the light of the law laid down in the judgments of the Apex Court in _**Govt. of India v. Ravi Prakash Gupta** :_ _**(2010) 7 SCC 626** ,_ _**Union of India v. National Federation of the Blind: (2013) 10 SCC 772, Justice Sunanda Bhandare Foundation v. Union of India : (2014)14 SCC 383** ,_ _**Rajeev Kumar Gupta v. Union of India: (2016) 13 SCC 153,Justice Sunanda Bhandare Foundation v. Union of India**_ : **(2017) 14 SCC 1** , where the Apex court has repeatedly reminded the State and other authorities under the State about their statutory duty to fill up the vacancies earmarked for the disabled under both the Acts, the University cannot be heard to WP(C).No.32638 OF 2019 5 contend that Government order is not permitting them to make appointment. It is also relevant to note the following direction in the judgment in _**National Federation of the Blind's case**_ (supra) of the Apex court : _**“55.2.** We hereby direct the “appropriate Government” to compute the number of vacancies available in all the “establishments” and further identify the posts for disabled persons within a period of three months from today and implement the same without default”_ ## 7. In the judgment in _**Justice Sunanda Bhandare Foundation**_ _**v. Union of India**_ : (2017) 14 SCC 1, the Apex court after analysing the provisions in the 2016 Act directed as follows: _25. Regard being had to the change in core aspects, we think it apposite to direct all the States and the Union Territories to file compliance report keeping in view the provisions of the 2016 Act within twelve weeks hence. The States and the Union Territories must realize that under the 2016 Act their responsibilities have grown and they are required to actualize the purpose of the Act, for there is an accent on many a sphere with regard to the rights of those with disabilities. When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made.”_ 8 _._ The aforesaid directions are applicable to the Cochin University also. It is also relevant to note that in _**Dineshan E**_ _**V State of Kerala and Others**_ **: 2014(4)KHC 988,** this court directed to fill up all the backlog vacancies in Government owned companies and Public Sector Undertaking for the period from 1996. The Division Bench in _**Kerala Public Service**_ WP(C).No.32638 OF 2019 6 _**Commission V E. Dineshan and others**_ : _**2016(2) KHC 910**_ , affirming that judgment repelled the contention of the appellants that appointment of differently abled can only be made resorting to special recruitment and directed to fill up all the backlog vacancies from the rank list. Therefore the University is also bound to fill up the backlog vacancies, against the vacancies to be filled up by them. 9. It was pointed out that university has made 70 appointments from the rank list of 2005 against the vacancies which arose from 01.01.2004 to 31.12.2007. No candidate from differently abled was appointed from that rank list. Though it was pointed out that the Government has as per order dated 18.12.2010, entrusted the recruitment of all non-teaching staff with PSC and therefore the University is not in a position to make any further appointment against any vacancy which arose thereafter, the learned Standing Counsel for the PSC pointed out that the post of Sweeper cum Cleaner does not come under the purview of the PSC, since no regulations are issued so far bringing those posts within the purview of PSC. Therefore there cannot be any impediment in filling up the existing vacancies. 10. As at present there are only 4 candidates remaining in Ext.P3 rank list. It is also pointed out that one vacancy is kept unfilled as per interim order in another case. As the respondent University is duty bound to fill up 3% of its vacancies in the post of Sweeper cum Cleaner from 07.02.1996 WP(C).No.32638 OF 2019 7 under the 1995 Act and 4% vacancies under the RPWD Act 2016, there would be sufficient number of vacancies to accommodate the petitioners as against the 1% vacancies available for direct recruitment. The question of creating any supernumerary posts will not arise as it is the statutory responsibility of the University to fill up vacancies in accordance with the provisions contained in 1995 Act and also under the 2016 Act. Therefore, there shall be a direction to the University to compute the 1% vacancies available for the candidates with locomotor disability reckoning the vacancies for the period from 07.02.1996 and to make appointments from Ext.P3 rank list within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of accordingly. **Sd/-** **P.V.ASHA** rkc **JUDGE** WP(C).No.32638 OF 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF SAID NOTIFICATION ISSUED BY THE REGISTRAR OF THE 1ST RESPONDENT UNIVERSITY DATED ON 30.12.2008. EXHIBIT P2 THE TRUE COPY OF THE RELEVANT EXTRACT OF THE RANKED LIST DATED ON 28.12.2018. EXHIBIT P3 THE TRUE COPY OF THE RELEVANT EXTRACT OF THE LIST FOR THE DISABLED PUBLISHED BY THE 1ST RESPONDENT UNIVERSITY DATED 6.03.2019. EXHIBIT P4 THE TRUE PHOTOCOPY OF THE CIRCULAR NO.3/13 DATED 10.4.2013 ISSUED BY THE PUBLIC SERVICE COMMISSION. EXHIBIT P5 THE TRUE PHOTOCOPY OF THE CIRCULAR NO.5/2017 DATED 17.07.2017 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION. EXHIBIT P6 THE TRUE COPY OF THE CIRCULAR NO.79/D1/18/S.J.D. DATED 7.02.2018 OF THE DEPARTMENT OF SOCIAL JUSTICE, GOVT. OF KERALA. EXHIBIT P7 THE TRUE COPY OF THE INFORMATION NO.IDSII(2)/1284/2019/GW DATED 05.04.2019 RECEIVED FROM KERALA PUBLIC SERVICE COMMISSION UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 16.08.2019 FILED BEFORE THE 1ST RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE REPRESENTATION DATED 08.11.19 FILED BEFORE THE 4TH RESPONDENT. EXHIBIT P10 THE TRUE PHOTOCOPY OF THE OFFICE NOTES OF THE 1ST RESPONDENT UNIVERSITY DATED ON 05.01.2019. EXHIBIT P11 THE TRUE COPY OF THE ORDER DATED 30.01.2020 DECLARING THE PROBATION OF THE CANDIDATES APPOINTED TO THE POST OF SWEEPER CUM CLEANER.** **RESPONDENTS' EXHIBITS** **EXT.R1A: TRUE COPY OF THE ADDENDUM NOTIFICATION NO.RECT./1109/2009(3) DT.28.12.18 OF THE REGISTRAR OF THE UNIVERSITY** ## **EXT.R1B: TRUE COPY OF THE LETTER NO.AD.A4/174/2018 DT.5.9.19 OF REGISTRAR OF THE UNIVERSITY** **ANNEXURE A1: TRUE COPY OF TEH TABULATED SHEET SHOWING THE DETAILS OF THE DIFFERENTLY ABLED PERSONS APPOINTED TO THE NON-TEACHING SERVICE OF THE UNIVERSITY.**