Ushakumari K v. Kerala Financial Corporation Ltd, Kerala Public Service Commission, and The District Officer, Kerala Public Service Commission, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942** ## **WP(C).No.16667 OF 2018(G)** ## **PETITIONER:** **USHAKUMARI.K ADVOCATE, MANCHERY VEEDU,CHEDICHERY, ALUMMUKKU,PERUVALATHUPARAMBA P O,KANNUR-670593.** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.S.K.ADHITHYAN SRI.P.MOHANDAS (ERNAKULAM) SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.SABU PULLAN SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN** ## **RESPONDENTS:** |**1**|**KERALA FINANCIAL CORPORATION LTD**| |---|---| ||**REPRESENTED BY ITS GENERAL MANAGER,**| ||**VELLAYAMBALAM P O, THIRUVANANTHAPURAM-695033.**| |**2**|**KERALA PUBLIC SERVICE COMMISSION**| ||**REPRESENTED BY ITS SECRETARY,P.S.C.OFFICE, PATTOM,**| ||**THIRUVANANTHAPURAM-695004.**| |**3**|**THE DISTRICT OFFICER**| ||**KERALA PUBLIC SERVICE COMMISSION,DISTRICT OFFICE,**| ||**KOZHIKODE-673020.**| ||**R1 BY ADV. SRI.M.R.VENUGOPAL**| ||**R1 BY ADV. SMT.DHANYA P.ASHOKAN**| ||**R2-3 BY SRI.P.C.SASIDHARAN, SC, KPSC**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0411-2020, THE COURT ON 13-11-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.16667/18 2 ## **JUDGMENT** **Dated this the 13[th] day of November 2020** ## 1.This writ petition is filed seeking the following reliefs:- “1. to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P6 communication No. D V(1) 452/15-1 dated 19-03-2018 issued by the 3[rd] respondent that since no Differently Abled Low Vision candidate in the ranked list the said post is kept unfilled for advising the candidates from the next general ranked list; 2. to issue a Writ of Mandamus or order or direction to the 3[rd] respondent to advice the petitioner for appointment as Legal Officer in the first respondent Corporation in Kozhikode district since the first vacancy for differently disabled person is already filled up in Kottayam district; 3. to declare that since the cadre strength of Legal Officer in the first respondent Corporation is five, the first vacancy alone need be filled up by differently abled person irrespective of the district in which he is appointed; 4. to declare that Ext. P3 Government order cannot have any impact in the process of selection and publication of the ranked list pursuant to Ext. P1 notification since the qualification or reservation cannot be changed after the commencement of the selection process;” 2.Heard the learned Senior Counsel appearing for the petitioner, the learned Senior Counsel appearing for the 1[st] respondent as W.P.(C).No.16667/18 3 well as the learned standing counsel appearing for respondents 2 and 3. 3.The petitioner submits that he is included as Rank No.1 in the District wise main list for appointment to the post of Legal Officer in the 1[st] respondent-Corporation. Exhibit P1 is the notification and Exhibit P2 is the ranked list in which the petitioner stands included as Sl.No.1. It is submitted that when the petitioner was not advised for appointment, she had made enquiries with the respondents and had been told that the first vacancy from every ranked list is reserved to be filled up by appointing a person with disability in terms of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) (for short, the 'Act, 1996'). It is submitted that Exhibit P3 Government Order provides that turn 1, 34 and 67 are liable to be filled up from persons with disability and that therefore the first vacancy is reserved to be filled up after renotification. W.P.(C).No.16667/18 4 4.The learned Senior Counsel appearing for the petitioner submits that there are only five posts of Legal Officers in the 1[st] respondent-Corporation. It is submitted that the cadre strength being five, the appointments from different district lists are not warranted. It is further stated that the cadre strength of Legal Officer is State wide as is evident from Exhibit P4 reply given to the petitioner by the 1[st] respondent in response to a query under the Right to Information Act. It is stated that Exhibit P4 would show that one low vision candidate has been advised for appointment to the post of Legal Officer in Kottayam district and one low vision candidate has been advised for appointment in Ernakulam district. It is contended by the learned counsel for the petitioner that since there are only five posts of Legal Officers and since the percentage of reservation is to be applied to the cadre strength, the action of the respondents in reserving the first post in all the ranked lists would create a situation where all the posts available in the 1[st] respondent being filled up by persons with disability and that such a situation was not warranted by the Act or the Rules. It is contended that since W.P.(C).No.16667/18 5 the cadre strength is five and since one differently abled person is already working in Kottayam district, the vacancy in Kozhikode is to be filled up by appointing the petitioner, who is the first ranked candidate in Exhibit P2. It is further contended that Exhibit P5 communication from the 3[rd] respondent would show that there is no Differently Abled candidate available in Exhibit P2 ranked list in respect of the Kozhikode district for advise to the post of Legal Officer and that the turn is kept unfilled for want of a low vision candidate. Exhibit P6, which is a communication in response to the application under the RTI Act is also relied on to contend that there has been no ranked list for the post of Legal Officer from 1996 to 2014 in the Kozhikode district. - 5.A counter affidavit has been placed on record by respondents 2 and 3. It is contended therein that the Act came into force in 1996. By G.O. dated 14.7.1998 the Government had reserved 3% of vacancies in Class II and Class IV posts in Public Services for appointment from physically handicapped persons. Later Government issued G.O. dated 15.9.2007 W.P.(C).No.16667/18 6 entrusting the selection for 3% reservation to the Public Service Commission. It is stated that the 3% of the vacancies was to be apportioned between persons suffering from blindness or low vision, hearing impairment, locomotor disability or cerebral palsy in the ratio 1:1:1. It is stated that every 33[rd] , 66[th] and 99[th] vacancy in a cycle of 100 vacancies was reserved to be filled up from the respective categories of disabled persons. It is further submitted that Government vide Exhibit P3 Government Order had ordered that instead of issuing advise to differently abled candidates against turn No.33,66 and 99 in a cycle of 100 vacancies, advise has to be issued against Sl.Nos.1, 34 and 67 and the Commission had decided to comply with the direction with regard to all ranked lists published by it. It is stated that a circular had also been issued by the Commission, which is produced as Exhibit R2(b). Exhibit R2(b) would show that in pursuance to the Government Order, the Commission had decided to set apart every 1[st] , 34[th] and 67[th] vacancy to be filled up from Differently Abled persons. This is made applicable to all current ranked lists as well. It is further contended by the learned counsel for W.P.(C).No.16667/18 7 respondents 2 and 3 that the percentage of reservation has been enhanced to 4% and therefore every 1[st] , 34[th] , 67[th] and 99[th] vacancy would stand reserved for Differently Abled persons. It is contended that since there is no challenge against Exhibit P3 Government Order and since the petitioner had admittedly applied for appointment pursuant to Exhibit P1 notification which invites applications for appointment to the post of Legal Officer in the 1[st] respondent in the district of Kozhikode and since she stands included in Exhibit P2 ranked list which is a district wise list, the petitioner cannot raise any claims for appointment to the post of legal officer in the Kozhikode district which is liable to be filled up in accordance with Exhibit P3. It is contended that the 2[nd] and 3[rd] respondents are duty bound to work out the reservation for Differently Abled persons in respect of each ranked list prepared by it in terms of Exhibit P3 and that the contentions to the contrary cannot be accepted. - 6.A counter affidavit has been placed on record by the 1[st] respondent as well. It is submitted that the petitioner had W.P.(C).No.16667/18 8 been granted a provisional appointment as Legal Officer pursuant to interim order dated 18.7.2018, since the Corporation was in need of Legal Officers. It is stated that the appointment was purely provisional and subject to the result of the writ petition. While so, it is submitted that the Board of the Corporation held on 17.10.2019 had resolved to restructure the Legal wing of the Corporation and all five posts of Legal Officers which is the entry cadre had been abolished. The proposal was sent up to the Government and Government had passed an order dated 10.8.2020 accepting the proposal and abolishing the entry level post of Legal Officer. It is held that the present incumbents, who are regularly holding the post would be entitled to continue and as and when they vacate the posts, the posts would stand abolished. It is submitted that since the post against which the petitioner had been provisionally appointed stood abolished, a decision was taken by the Corporation to terminate the petitioner's service w.e.f. 30.10.2020 and termination notice was issued to the petitioner. It is submitted by the learned Senior Counsel appearing for the Corporation W.P.(C).No.16667/18 9 that the action of the Corporation in having issued a termination letter to the petitioner in spite of the orders of this Court directing the continuance of the petitioner on a provisional basis was a mistake and that the Corporation ought to have informed this Court of the situation and sought orders in this regard. In any view of the matter, the contention is that there is no post to accommodate the petitioner and that as such, the petitioner is not entitled to continue on the basis of the interim arrangement made by this Court pending disposal of the writ petition. 7.The learned Senior Counsel for the 1[st] respondent relied on the decisions of the Apex Court in **Ramanatha Pillai v. State of Kerala** [1973 KHC 251] and **Balakrushna Behera and another v. Satya Prakash Dash** [2008 KHC 4014]. The Apex Court in **Ramanatha Pillai's case** specifically held that the right of the Government to create or abolish a post is a matter of Governmental policy and that such power is dictated by policy decisions, exigencies of circumstances and administrative necessity. It was further held that though W.P.(C).No.16667/18 10 it has consequence of termination of a Government servant, such termination would not come within the meaning of dismissal or removal under Article 311 of the Constitution of India and there is no requirement of any opportunity to show cause. It was held that the right to hold the post comes to an end by the abolition of the post and a Government servant cannot complain of violation of his fundamental rights when a post is abolished by the Government in administrative exigencies. 8.In **Balakrushna Behera and another's case,** the Apex Court held that the creation or abolition of post being a policy decision, the High Court cannot direct the State Government by a writ of mandamus to appoint a person against a post which has been abolished. It was held that while it may be open to the Government to direct continuance of persons who stood appointed to the post, the constitutional court exercising the power of judicial review cannot direct such continuance where the post is no longer in existence. W.P.(C).No.16667/18 11 9.I have considered the contentions advanced on all sides at considerable length. The petitioner admittedly had submitted application for the selection pursuant to Exhibit P1 notification dated 15.11.2014. Exhibit P1 specifically states that the selection is being made on a district wise basis and that separate ranked list would be prepared in respect of each district, that is Kottayam and Kozhikode. Exhibit P2 ranked list would show that it is a ranked list prepared pursuant to Exhibit P1 for appointment to the post of Legal Officer in Kozhikode district. In the above factual situation, the contention made by the learned Senior Counsel for the petitioner that there are only five posts of Legal Officers and therefore the posts should be considered as a State wise unit, cannot be accepted. - 10.The further contention of the petitioner is that the reservation of the first vacancy in respect of all ranked lists published by the Commission for low vision candidates would lead to an anomalous situation where all posts of Legal W.P.(C).No.16667/18 12 Officers would be filled up by low vision candidates. The Act, 1996 contains provisions for identification of posts which can be reserved for disabled persons and provides for reservation of vacancies for such persons. ## 11.Section 33 of the Act, 1996 reads as follows:- “33. **Reservation of posts** -Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of persons with disability of which one per cent. each shall be reserved for persons suffering from- (i) Blindness or low vision; ## (ii) Bearing impairment; (iii) Loco motor disability or cerebral palsy, in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. “ 12.Exhibit P3 is a Government Order issued to modify the turn of reservation under Section 33 of the 1996 Act. It specifically provides that every first turn to be filled up from a ranked list W.P.(C).No.16667/18 13 is to be set apart for a physically disabled (low vision candidate). This Government Order has not been directly challenged by the petitioner in this writ petition. The State is not a party to this writ petition. The petitioner seeks a declaration that Exhibit P3 Government Order cannot have any impact in the process of selection and publication of ranked list pursuant to Exhibit P1, since reservation cannot be changed after the commencement of the selection process. Exhibit P3 order is issued on the basis of judicial pronouncements to identify and fill up the backlog vacancies existing from 7.2.1996 onwards in Government Departments, Public Sector Undertakings, Universities, Local Bodies, etc. It specifically states that the turn for physically handicapped persons is to be operated in the manner provided therein, in respect of all ranked list. Exhibit P3 therefore does not involve any criteria for selection or any mode of selection to the post. It only provides the turns against which the backlog vacancies of physically handicapped persons in identified posts is to be filled up in terms of the Act, 1996. W.P.(C).No.16667/18 14 13. In the above view of the matter, I am of the opinion that the contention that Exhibit P3 has no application to the selection initiated by Exhibit P1 is absolutely untenable. Exhibit P2 is a ranked list which has been brought into force from 23.1.2018.. When the ranked list is brought into force, Exhibit P3 order is in existence. If that be so, I am of the opinion that the contention of respondents 2 and 3 that they are bound by Exhibit P3 and that Exhibit P3 is liable to be followed in respect of Exhibit P2 ranked list is liable to be accepted. 14.The further question is with regard to the abolition of the post of Legal Officer to which the petitioner stood provisionally appointed pursuant to orders of this Court. I have found that since Exhibit P3 order governs the issue the action of the 2[nd] and 3[rd] respondents in reserving the first turn from every ranked list to be filled up by a Differently Abled person cannot be found fault with. Therefore, the petitioner would have no indefeasible claim to be appointed as Legal Officer from Exhibit P2 ranked list. It is clear that while the petitioner was continuing in service on the basis of the interim W.P.(C).No.16667/18 15 orders of the Court, the post against which the petitioner was continuing stood abolished. The Government, while permitting the proposal for reorganisation of the legal cadre held that those persons who were holding the posts substantively will be allowed to continue. It is trite law that the creation or abolition of posts are completely administrative policy matters, the wisdom of which cannot be gone into by this Court exercising its powers of judicial review. In that view of the matter, this Court would not be justified in examining the rationale behind the abolition of the entry cadre posts by the 1[st] respondent Corporation on the orders of the Government. Suffice it to say that the post which the petitioner was holding on a provisional basis now stands abolished by a competent decision of the Government. Having found that the petitioner did not have a right to be appointed as Legal Officer from Exhibit P2 ranked list in the light of Exhibit P3, I am of the opinion that the further contention that the petitioner should be permitted to continue in service de hors the abolition of the post cannot be accepted. W.P.(C).No.16667/18 16 In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.16667/18 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION IN CATEGORY NO.435/2014 DATED 15-11-2014 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE RANKED LIST NO.43/2018/SS II PUBLISHED BY THE 2ND RESPONDENT FOR KOZHIKODE DISTRICT WHICH CAME INTO FORCE WITH EFFECT FROM 23-12018** - **EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER G.O(P)NO.8/17/SJD DATED 6-5-2017** - **EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN BY THE FIRST RESPONDENT UNDER RIGHT TO INFORMATION ACT DATED 26-04-2018** - **EXHIBIT P5 TRUE COPY OF THE LETTER WRITTEN BY THE 3RD RESPONDENT TO THE FIRST RESPONDENT DATED 22-2-2018** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION NO D V(1) 452/15-1 DATED 19-3-2018 GIVEN BY THE 3RD RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.HRD/LO/749/2017-18 DATED 20-07-2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.84/2020/FIN.DATED 10.08.2020.** - **EXHIBIT P9 TRUE COPY OF THE MEMO GIVEN BY THE 1ST RESPONDENT DATED 13-10-2020.** - **RESPONDENT'S EXHIBITS:** **EXHIBIT R2 A RUE COPY OF THE GO-(P) NO-8/17/SJD DATED 06-05-2017** 18 W.P.(C).No.16667/18 **EXHIBIT R2 B TRUE COPY OF THE CIRCULAR 5/2017 ISSUED BY THE COMMISSION** True copy PS to Judge