The Kerala Agricultural University and Others v. Dr. Rekha V.R. Nair and Others

## **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.** **THURSDAY, THE 16[TH] DAY OF DECEMBER 2021 / 25TH AGRAHAYANA, 1943** **WA NO. 1057 OF 2021** **AGAINST THE JUDGMENT DATED 31.03.2021 IN WP(C) 28306/2020 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 5:** - **1 THE KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR, K.A.U. MAIN CAMPUS, KAU P.O., VELLANIKKARA, THRISSUR-680 654.** - **2 THE GENERAL COUNCIL, REPRESENTED BY ITS CHAIRMAN AND VICE CHANCELLOR, THE KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR-680 654.** - **3 THE EXECUTIVE COMMITTEE, REPRESENTED BY ITS CHAIRMAN AND VICE CHANCELLOR, THE KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR-680 654.** - **4 THE VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, KAU MAIN CAMPUS, K.A.U P.O., VELLANIKAKRA, THRISSUR-680 654.** - **5 THE SELECTION COMMITTEE FOR APPOINTMENT TO THE POST OF ASSISTANT -PROFESSOR (SOIL SCIENCE AND AGRICULTURAL CHEMISTRY), REPRESENTED BY THE EXOFFICIO CHAIRMAN AND THE VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, MAIN CAMPUS, VELLANIKKARA, THRISSUR-680 654.** **BY ADV SRI.ROBSON PAUL, SC, KERALA AGRICULTURAL UNIVERSITY** **SRI.S.SREEKUMAR, SR** :2: W.A. No. 1057 of 2021 ## **RESPONDENTS:** **1 DR. REKHA V.R.NAIR AGED 34 YEARS D/O.SRI.B.RADHAKRISHNAN NAIR, RESIDING AT 'ANIZHAM', KOTTAMUGAL, NALANCHIRA P.O., THIRUVANANTHAPURAM-695 015. 2 DR. RAJIMOL R.P AGED 29 YEARS D/O.SR.RAJAN.K., RESIDING AT CHANDRA VILASAM, MOOTHALA P.O., PALLICKAL, KILLIMANOOR, TRIVANDRUM695 604.** **3 DR. ARYA LEKSHMI.V AGED 33 YEARS D/O.SRI.P.K.SASIDHARN NAIR, RESIDING AT CHERUKOTTUKALLOOR HOUSE, MANJAKALA P.O., KUNNIKODU, KOLLAM-691 508.** **BY ADVS. SRI.D.KISHORE SRI.MEERA GOPINATH SRI.R.MURALEEKRISHNAN (MALAKKARA) SMT.ARYA JOSEPH** ## **OTHER PRESENT:** ## **SR ADV S SREEKUMAR (APPELLANT)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **16.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: W.A. No. 1057 of 2021 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The Kerala Agricultural University and its officers are the appellants before us aggrieved by the judgment dated 31.03.2021 of the learned Single Judge in WP(C).No.28306 of 2020. The issue involved in the appeal relates to a recruitment to the post of Assistant Professor in Soil Science and Agricultural Chemistry coming under the Faculty of Agriculture of the appellant University. Through the notification dated 03.03.2016, four posts of Assistant Professors were notified for selection, and in the selection process that followed, the respondents/writ petitioners were variously ranked as Sl.No.12, 14 and 17 in the common rank list prepared for selection to the said post. We are told that during the pendency of the Writ Appeal, the persons ranked 12 and 14, who are writ petitioners 1 and 2, subsequently obtained appointment as Assistant Professors, and hence, their grievance already stands redressed. We are in this Writ Appeal concerned only with the claim of Smt.Arya Lekshmi V, who is a :4: W.A. No. 1057 of 2021 candidate under the open merit quota who was ranked as Sl.No.17 in the rank list of 33 persons that was prepared by the University. It would appear that in the appointment chart that was prepared by the University for the post, six persons were shown as appointed and two vacancies were left unfilled as Non Availability of Candidates (NCA) vacancies. We note, however, that of the two vacancies notified as NCA one pertained to a Differently Abled (Blind) category and the other was for SIUC Nadar. The question that was posed in the Writ Petition was essentially with regard to the propriety of keeping the NCA vacancy for Differently Abled (Blind) candidate unfilled notwithstanding that this was the second year of recruitment to the post in question and no disabled candidate in any category was identified for the post. 2. The learned Single Judge relied on Clause 8.5 of the notification dated 15.01.2018 of the Central Government (Ext.P18), which dealt with the manner of reservation for persons with benchmark disabilities as defined under Section 2 (r) of the Rights of Persons with Disabilities Act, 2016 effected from 19.04.2017. It was found, based on the said notification, that the vacancy in question had to be filled by a person in the open merit quota, pursuant to a de-reservation of the post on finding that there was no disabled candidate available for filling the :5: W.A. No. 1057 of 2021 post even after the second recruitment year. The finding of the learned Single Judge with regard to the recruitment in question being the second one was based on the appointment chart (Ext.P3) that was produced in the Writ Petition, which clearly showed that the rotation for the community quota had began from Point.35 onwards, which suggested that there had been an earlier recruitment for the post. The learned Judge, therefore, proceeded to hold that the appellant University was obliged to de-reserve the post and offer the post to the next meritorious candidate in the open merit category. 3. When this Writ Appeal came up for orders before us, we noticed that in almost identical circumstances, and in a matter that arose from the same notification as is impugned in the present proceedings, this Court had by judgment dated 05.07.2021 in W.A.No.536 of 2021, held as follows: “6. Before us, it is the submission of the learned Senior counsel Sri.S.Sreekumar, appearing for the appellants, that the recruitment carried on pursuant to Ext.P1 Notification had to be treated as the first year of recruitment for the purposes of implementing the reservation contemplated under the 1995 Act. That this was more so because, it was only pursuant to Annexure R3(d) Government Order dated 20.02.2016 and Ext.P10 Government Order dated 06.05.2017 that the University had proceeded to :6: W.A. No. 1057 of 2021 identify those posts that were suitable for being filled up through appointment of candidates with disabilities. It is contended, therefore, that in the absence of any candidate under the category of differently abled (blind/visually impaired) being available for appointment, the vacancy had to be carried forward to the next year of recruitment as mandated under the 1995 Act, read with the relevant Office Memoranda. 7. We are afraid, we cannot accept the contentions of the learned senior counsel. The mandate of the 1995 Act as directed to the appropriate government is to identify posts in various establishments under it that can be held by persons with benchmark disabilities, and thereafter, to reserve 3% of the vacancies in those posts for appointment of such persons. The statute also envisages the maintenance of a 100 point roster for filling up vacancies in the identified posts and the earmarking of specific points in the roster to provide the reservation for disabled candidates. As has been held by the Supreme Court in **Indra Sawhney and Others v. Union of India and Others (1992 Supp (3) Supreme Court Cases 217)** , **Anil Kumar Gupta and Others v. State of U.P and Others [(1995) 5 Supreme Court Cases 173]** and **Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others [(2007) 8 Supreme Court Cases 785]** , there is a distinction between communal reservation which falls under the category of vertical reservation and reservation for disabled candidates that falls under the category of horizontal reservation. While the former is a form of social reservation intended exclusively for the backward class of people, it differs from the latter in that if a person entitled to reservation secures a position based on merit, his/her appointment is not counted towards fulfilment of the class reservation. In the case of disabled candidates, the reservation is horizontal and, accordingly, if the candidates secures a position on merit and without using the benefit of such :7: W.A. No. 1057 of 2021 reservation, he/she is nevertheless counted against the position reserved for disabled persons. In other words, as pointed out by the Supreme Court in **Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others [2007 (8) SCC 785]** a disabled candidate satisfies the requirement of reservation irrespective of whether he is appointed in his turn to a roster point, which is reserved for such candidate unlike in the case of vertical reservation were the reserved candidate satisfies the requirement of reservation only when he is appointed in the turn and against the roster point, which makes the reservation. It is also relevant to note that the reservation contemplated under the 1995 Act is of a specified percentage (3%) of the vacancies in the identified posts and not to the cadre strength of the identified post. 8. A Division Bench of this Court, by judgment dated 06.01.1996 in W.A.No.362 of 2015 has found that that the 1995 Act, having come into force with effect from 01.01.1996, the principles of reservation therein, which are not dependant on the identification of posts, would come into operation with effect from 01.01.1996 itself. This would mean that the vacancies earmarked for the disabled persons are to be reckoned not with effect from the date of identification of posts suitable for such candidates, but with effect from the date of commencement of operation of the Act. On the facts of the instant case, we find that to the posts of Assistant Professor (Mathematics) in the Agricultural Engineering Department of the University there has been at least one prior recruitment, in 2013, which fact is apparent from Ext.P3 appointment chart prepared by the University itself. If that be so, then for the purposes of applying the principles of reservation under the 1995 Act, we have to necessarily treat the present vacancy in the post of Assistant Professor (Mathematics) as one that exists in a subsequent recruitment year and not in the first recruitment year. Going by the principles laid down in Section 36 of the :8: W.A. No. 1057 of 2021 1995 Act, in all recruitment years subsequent to the initial recruitment year, an unfilled vacancy earmarked for filling up with a category of differently abled persons has either to be filled by a differently abled person of the same or different category or, in their absence, by a person other than a person with disability. This would be the position as regards reservation for persons with disabilities in any subsequent year after the first recruitment year. As the facts in the instant case clearly reveal that the recruitment pursuant to Ext.P1 Notification was not the first recruitment to the post of Assistant Professor (Mathematics) in the Agricultural Engineering Department, we are of the view that the University was not justified in refusing to fill up the post by appointing the petitioner who was ranked first in the rank list prepared pursuant to Ext.P1 Notification. We also find that no prejudice would be caused to any disabled candidate through the offering of the present appointment to the writ petitioner because they would be able to secure an appointment in any subsequent recruitment so long as they feature in a rank list prepared in connection therewith. Thus, for the reasons given by the learned Single Judge, as supplemented by the reasons in this judgment, we dismiss the Writ Appeal.” 4. We find that the said judgment, the SLP against which was dismissed by the Supreme Court by the order dated 22.11.2021 in SLP(C).No.18600/2021, squarely covers the issue in the instant case. We, therefore, see no reason to interfere with the judgment of the learned Single Judge impugned in the Writ Appeal. The Writ Appeal fails and is accordingly dismissed. :9: W.A. No. 1057 of 2021 Taking note of the submission of the learned Senior counsel for the appellants that contempt proceedings have been initiated against the appellants for non-compliance with the directions of the learned Single Judge, we grant the appellants a period of one month from today for issuing the appointment order to the 3[rd] writ petitioner Smt.Arya Lekshmi V, the 3[rd] respondent in the Writ Appeal. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :10: W.A. No. 1057 of 2021 ## **APPENDIX** ## **PETITIONERS ANNEXURES:NIL** ## **RESPONDENTS ANNEXURES:** **ANNEXURE R3(A): TRUE COPY OF THE JUDGMENT DATED 12.2.2021 IN WP(C).NO.26740/2020 OF THIS HONOURABLE COURT** **ANNEXURE R3(B):TRUE COPY OF THE JUDGMENT DATED 5.7.2021 IN WP(C).NO.536/2021 OF THIS HONOURABLE COURT** **ANNEXURE R3(C):TRUE COPY OF THE JUDGMENT DATED 22.11.2021 IN SLP(C).NO.18600/2021 OF THE HONOURABLE SUPREME COURT** ## **//TRUE COPY//** ## **P.A TO JUDGE**