Sunny Jacob v. State of Kerala and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2019-01-28
Court Decision / Holding: The writ petition is dismissed.
Final Disposition: Writ petition dismissed.,

Parties to the Case

Appellants / Petitioners

Sunny Jacob

Respondents

State of Kerala
Chief Secretary, Government Secretariat, Thiruvananthapuram
The District Collector, Pathanamthitta District
The Secretary, Social Welfare Department, Government Secretariat, Trivandrum

Legal Representation & Advocates

Counsels for Petitioners

• N. N. Sasi

Case Synopsis & Summary

Sunny Jacob, a physically handicapped person with 65% disability, approached this Court challenging the Government’s refusal to provide him regular employment despite repeated requests. He had studied up to Pre-Degree and had registered with the Employment Exchange in 1988; though he worked on a temporary basis during various spells when sponsored by the Exchange, he was not offered regular employment under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. He pursued remedies through the State Human Rights Commission, which forwarded the matter to the District Collector, Pathanamthitta, for lenient consideration and action. While he had earlier secured a direction in Ext.P10 to the Social Welfare Department to decide in a time-bound manner, Ext.P11 evidenced a recommendation to appoint him, but Ext.P14 rejected the request for untenable reasons. The petitioner challenged Ext.P14 as a reiteration of Ext.P12, which had been set aside by Ext.P13, and sought mandamus to treat his case as a special case for appointment in a Government department, at least as a peon, under Exts.P9–P13. The respondents contended that public employment cannot be opened to “special cases,” citing the Supreme Court’s Umadevi doctrine, and argued there is no direct-appointment scheme for persons with disabilities; the 3% reservation under the 1995 Act meets the disability criterion. The Court upheld Ext.P14’s reasoning and dismissed the petition, holding that there is no basis to interfere with the government’s decision.

Provisions of Law Cited

Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995Section 33 of the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995

Legal Doctrines & Maxims

Umadevi doctrine (regularization of temporary/adhoc employees is not permitted)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, as a person with 65% disability, he is entitled to regular employment under the 1995 Act or at least to be considered as a special case for appointment in government service, citing Exts.P9–P13 and the earlier directions by this Court. He argues that denial of regular appointment amounts to discrimination against persons with disabilities and seeks mandamus to place his case before the State Cabinet for urgent consideration.

Contentions of Respondents

The respondents submit that there is no provision for appointing someone as a ‘special case’ in public employment; regularization of temporary employees is disfavored in line with the Umadevi doctrine (Secretary, State of Karnataka and others v. Umadevi). They contend there is no scheme allowing direct appointment to persons with disabilities beyond the 3% reservation under the 1995 Act, and that Ext.P14 provides valid reasons for the denial, which should not be interfered with.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Secretary, State of Karnataka and others v. Umadevi (3) and others	(2006) 4 SCC 1	Positive	The Apex Court’s doctrine on regularization of temporary employees is relied upon to deny a “special case” appointment, and the High Court accepts this principle to justify denial of regularization in Ext.P14.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY ,THE 28TH DAY OF JANUARY 2019 / 8TH MAGHA, 1940** ## **WP(C).No. 21211 of 2017** ## **PETITIONER:** **SUNNY JACOB AGED 47 YEARS, S/O.P.J.CHACKO,THEVERUTHUNDIYIL PARUTHIYIL HOUSE, KOLABHAGOM P.O., THADIYOOR, THIRUVALLA, PATHANAMTHITTA DIST.** **BY ADV. SRI.N.N.SASI** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REP. BY THE CHIEF SECRETARY TO GOVT., GOVERNMENT**| ||**SECRETARIATE, THIRUVANANTHAPURAM - 695001.**| |**2**|**THE CHIEF SECRETARY**| ||**GOVERNMENT SECRETARIATE,THIRUVANANTHAPURAM –**| ||**695 001.**| |**3**|**THE DISTRICT COLLECTOR**| ||**PATHANAMTHITTA DISTRICT, PATHANAMTHITTA P.O.,**| ||**689 645.**| |**4**|**THE SECRETARY**| ||**SOCIAL WELFARE DEPARTMENT,GOVERNMENT**| ||**SECRETARIATE,TRIVANDRUM - 695 001.**| ## **SR GP -SRI ARAVINDA KUMAR BABU. T.K** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 21211 of 2017** **2** ## **JUDGMENT** The petitioner, a physically handicapped person having 65% disability is before this Court ventilating his grievance regarding refusal on the part of the Government to provide him with regular employment in spite of repeated requests. It is submitted that the petitioner has studied up to Pre-Degree and had registered his name with the Employment Exchange, way back in the year 1988. Though, the petitioner had worked on temporary basis during different spells, on being sponsored by the Employment Exchange, he was not provided with a regular employment in terms of the provisions under 'the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995'. 2. It is pointed out that the petitioner had approached the State Human Rights Commission through a representation, which had culminated in Ext.P9 proceedings by which the State Human Rights Commission had forwarded his petition to the District Collector, Pathanamthitta for lenient consideration and appropriate action. Since, there was no consideration in accordance with the direction contained in Ext.P9, the petitioner filed W.P.(C) No.1388 of 2016 before this Court, where in Ext.P10 judgment was rendered directing the Secretary, Social **WP(C).No. 21211 of 2017** **3** Welfare Department to take an appropriate decision in a time bound manner. 3. The learned counsel for the petitioner points out that, even though there was a recommendation to appoint him, as evidenced by the endorsement in Ext.P11, the Government, as per Ext.12 rejected his request for untenable reasons. The petitioner challenged Ext.P12 by filing W.P.(C) 26926 of 2016 and this Court rendered Ext.P13 judgment, setting aside Ext.P12 order and consequently directing the 3[rd] respondent to consider the case of the petitioner as per the directives by the Human Rights Commission, this Court, as well as the Chief Minister, also taking note of the provisions contained under the Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995. Thereupon, the Government issued Ext.P14 order rejecting the petitioner's request for regular appointment. 4. In the writ petition, petitioner seeks to quash Ext.P14 order and for the issue of writ of mandamus to the 2[nd] respondent to put up the case of the petitioner as a special case before the State Cabinet and to urgently appoint the petitioner in any Government Department at least to the post of a peon by considering Exts.P9, P10, P11, and P13. 5. The learned counsel for the petitioner assails Ext.P14 order **WP(C).No. 21211 of 2017** **4** on the ground that it is only reiteration of Ext.P12 order, which has been set aside by this Court under Ext.P13 judgment. It is contended that, the state is under a duty to give employment to the petitioner considering the fact that, he is a person having 65% disability, especially in view of the earlier directions, as also various provisions contained under the 'Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995'. It is also contended that other persons like the petitioner, with varying percentages of disability, who had also been temporarily appointed through Employment Exchanges, have already been appointed by the Government and therefore, denial of appointment to the petitioner amounts to discrimination. 6. The learned Senior Government Pleader refuted the contention and pointed out that there cannot be any appointment as a special case, so far as public employment is concerned. It is contended that regularization of temporarily appointed persons have been frowned upon by the Apex Court in **Secretary, State of Karnataka and others v. Umadevi (3) and others ((2006) 4 SCC 1)** and subsequent decisions. It is also pointed out that, specific reasons have been pointed out in Ext.P14 for rejecting the petitioner’s request. Reliance is placed on paragraph 10 of Ext. P14 to contend that even though, as on **WP(C).No. 21211 of 2017** **5** date, a scheme for appointing persons with disability, who had worked for a total of more than 179 days, on being sponsored by the Employment Exchange, during the period between 16.08.1999 and 31.12.2003, is in force, the petitioner does not satisfy the criteria and therefore, it is not possible to provide employment to the petitioner even under that scheme. It is also pointed out that the requirement under the provisions of 'Persons with Disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995' stand satisfied, by the Government providing 3% reservation for persons with disabilities, in terms of Section 33 of the Act. The learned Senior Government Pleader submits that there is no scheme under which the Government can provide direct appointment to persons with disabilities. It is submitted that there are persons with more grave disabilities, either mental or physical, and therefore, consideration of the petitioner's request as a special case would open up a flood gate of such requests. 7. As has been rightly contended by the learned Senior Government Pleader there cannot be any appointment as a special case, insofar as public employment is concerned. Any appointment even in such cases can only be in accordance with the prescribed procedure. From a reading of Ext.P15 it is evident that the Government **WP(C).No. 21211 of 2017** **6** had considered the issue in its proper prescriptive and has stated valid reasons as to why the petitioner cannot be provided with regular employment. In that view of the matter I do not find any reason to interfere with Ext.P14 and consequently the Writ Petition is dismissed. **Sd/-** **V.G.ARUN JUDGE** mpm **WP(C).No. 21211 of 2017** **7** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXHIBIT-P1: TRUE COPY OF THE DISABILITY CERTIFICATE DTD 3.5.13. EXHIBIT-P2: TRUE COPY OF THE S.S.L.C. CERTIFICATE MARCH 1985. EXHIBIT-P3: TRUE COPY OF THE MARKS SHEET OF PREEDEGREE, GANDHI UNIVERSITY. EXHIBIT-P4: TRUE COPY OF THE EMPLOYMENT EXCHANGE CARD 1988. EXHIBIT-P5: TRUE COPY OF THE LETTER DTD.18-9-10 OF ADDITIONAL CHIEF SECRETARY. EXHIBIT-P6: TRUE COPY OF THE LETTER DTD.12.10.11 OF MEMBER SECRETARY,KLSA. EXHIBIT-P7: TRUE COPY OF THE LETTER DTD.11.3.11 OF ADDITIONAL CHIEF SECRETARY. EXHIBIT-P8: TRUE COPY OF THE LETTER DATED 1.1.99 OF THOTTAPUZHASSERY PANCHAYAT. EXHIBIT-P9: TRUE COPY OF THE ORDER DTD.27.1.14 OF HUMAN RIGHTS COMMISSION. EXHIBIT-P10: TRUE COPY OF THE JUDGEMENT IN W.P(C) NO.1388/16. EXHIBIT-P11: TRUE COPY OF THE LETTER ADDRESSED TO THE CHIEF MINISTER 26.2.16. EXHIBIT-P12: TRUE COPY OF THE ORDER DTD.13.5.16 OF THE 4TH RESPONDENT. EXHIBIT-P13: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.26926/18. EXHIBIT-P14: TRUE COPY OF THE ORDER DATED 7.3.17 OF THE 4TH RESPONDENT.** **WP(C).No. 21211 of 2017** **8** **EXHIBIT-P15: TRUE COPY OF THE LETTER DTD. 5.6.17 OF PRIME MINISTERS OFFICE.** ## **RESPONDENTS' EXHIBITS : NIL** //TRUE COPY// PA TO JUDGE