High Court of KeralaDivision Bench2022-03-25Disposed of with directions (see final court de...

Writ Appeal No. 223 of 2022 (In the High Court of Kerala at Ernakulam)

Case / Petition Number:W.A. No. 223 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas, J.
Viju Abraham, J.
Judgment Date: 2022-03-25
Court Decision / Holding: Disposed of, with directions: The Division Bench directs the PSC to prepare a special rank list of physically disabled candidates from Ext.P-2/Ext.P-5 and to implement the disability reservation provisions under the 2016 Act, including Sec.34, over backlog vacancies; if Turn Nos. 1, 34, 66 etc. have been bypassed, those should be recouped against the next vacancy; the PSC should inform the writ petitioner of the decision and provide details on backlog vacancies and the creation of the post; delays in implementing the reservation policy should be avoided; the impugned judgment is modified accordingly and the writ petition/writ appeal is disposed of with these directions.
Final Disposition: Disposed of with directions (see final court decision)

Parties to the Case

Appellants / Petitioners

The Kerala Public Service Commission, represented by its Secretary
Secretary, Kerala Public Service Commission, Pattom, Thiruvananthapuram 695 001

Respondents

George Mathew
Kerala State Beverages (Manufacturing and Marketing) Corporation Limited (BevCo)
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P.C. Sasidharan, Standing Counsel (for KPSC)

Counsels for Respondents

• M/S. George Varghese (Perumpallikuttiyil) & A.R. Dileep (for R-1)
• Sri. Saigi Jacob Palatty, Senior Government Pleader (for R-3)
• Sri. T. Naveen, Standing Counsel (for R-4)

Case Synopsis & Summary

This intra-court appeal challenges a single-judge order directing the respondent PSC to consider the writ petitioner, George Mathew, a locomotor disabled candidate, for a vacancy in the Kerala Beverages (Manufacturing and Marketing) Corporation Ltd. (BevCo) under the Rights of Persons with Disabilities Act, 2016. The writ petitioner had been included in Ext.P-5 ranked list as Rank 56 in the Open Competition category for the post of Computer Programmer-cum-Operator. The PSC contends that the Government Order dated 27.09.2021 described the post as “Computer Operator cum Operator (Beverages Corporation)”, a misdescription, and that the intended post was Computer Programmer-cum-Operator; later corrected by erratum GO 21.12.2021 (GO P 18/2021). The Court holds that the identifying orders (GO 27.09.2021 corrected by 21.12.2021) relate back to the commencement of the 2016 Act and that backlog vacancies can be addressed by preparing a special rank list from Ext.P-2/Ext.P-5; it directs PSC to implement Sec.34 and associated provisions, and to inform the writ petitioner of the decision and backlog details. The judgment emphasizes timely compliance with disability-reservation mandates, while leaving scope for grievances to be pursued by the petitioner. The matter clarifies the retroactive effect of identification orders and the permissible inter-change among disability sub-categories for reservations.

Provisions of Law Cited

Kerala High Court Act, 1958, Sec. 5(i)Central Act No. 1 of 1996 (Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995), Sec. 32Rights of Persons with Disabilities Act, 2016, Sec. 33Rights of Persons with Disabilities Act, 2016, Sec. 34Rights of Persons with Disabilities Act, 2016, Sec. 34(2)Rights of Persons with Disabilities Act, 2016, Sec. 36Rights of Persons with Disabilities Act, 2016 (Central Act No. 49 of 2016)

Legal Doctrines & Maxims

Retroactive effect of government orders identifying post suitability relates back to the commencement of the Act (Sec. 34, 2016 Act)
Backlog vacancies may be addressed using pending ranked lists without fresh recruitment
Inter-changeability among disability sub-categories within a recruitment year

Submissions & Arguments

Contentions of Appellants / Petitioners

The PSC contends that the post identification for lateral reservation was described incorrectly in G.O. dated 27.09.2021 and that Ext.P-2/Ext.P-5 correspond to the post of Computer Programmer-cum-Operator; the typographical mistake in the Schedule of the correction GO (P) No. 18/2021 must be corrected; steps must be taken to prepare a special rank list for physically disabled candidates to fill backlog vacancies, and that sub-category interchanges must be permitted only as per Sec.34 of the 2016 Act. The writ petitioner’s inclusion and potential appointment arise from the corrected notification and not from the erroneous description. The court is urged to uphold the correction and require PSC to implement the disability reservations in accordance with the 2016 Act, including preparing a dedicated special rank list and recouping overlooked turns for physically disabled candidates.

Contentions of Respondents

The writ petitioner contends for consideration under the disability reservation provisions as a locomotor disabled candidate under sub-category III; the government argues that the 2021 GO correctly identified the required post and that the five sub-categories are to be considered for lateral reservations; if sub-categories I and II are not available, vacancies may be carried forward and, per Sec. 34 and related provisions, may be interchanged among the five categories in the subsequent recruitment cycle; the matter should be decided with respect to backlog vacancies and the correct post description to avoid misinterpretation; the Government pleader cites precedence to support retroactive consideration for reserved posts.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Govt. of India through Secretary & Anr. v. Ravi Prakash Gupta & Anr.	(2010) 7 SCC 626	Positive	Cited as authority that statutory authorities must consider suitability for lateral reservation and that orders may relate back to the Act’s commencement.
Union of India & Anr. v. National Federation of the Blind & Ors.	(2013) 10 SCC 772	Positive	Used to reinforce the obligation to consider disability reservations and identify suitable posts.
Kerala Public Service Commission & Anr. v. E. Dineshan & Ors.	(2016) 2 KHC 910	Positive	Cited for backlog vacancy handling and use of existing ranked lists in disability reservations.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **WA NO. 223 OF 2022** **AGAINST THE JUDGMENT IN WP(C).NO.22650/2019 OF THE HIGH** **COURT OF KERALA** ## **APPELLANTS/RESPONDENT NOS.2 & 3:** - **1 THE KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM 695 001.** - **2 SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM 695 001.** **BY SRI.P.C.SASIDHARAN, STANDING COUNSEL** ## **RESPONDENTS/PETITIONER & RESPONDENT NOS.1, 4 & 5:** - **1 GEORGE MATHEW, AGED 48 YEARS, S/O. P. G. MATHEW, PADINJARE VEEDU, KARIKKAM P.O., KOTTARAKARA 691 531.** - **2 KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, BEVCO TOWER, VIKAS BHAVAN, P.O. PALAYAM, THIRUVANANTHAPURAM 695 033.** - **3 STATE OF KERALA,** **REPRESENTED BY SECRETARY T TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **ADVS. M/S. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) & A.R.DILEEP FOR R1 SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER FOR R3 SRI.T.NAVEEN, STANDING COUNSEL FOR R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **25.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 223 of 2022 ..2.. ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. -------------------------------------------------------------------------W.A. No. 223 of 2022 _(arising out of the impugned judgment dated 21.12.2021 in W.P. (C) No. 28517/2021)_ --------------------------------------------------------------------------Dated this the 25[th] day of March, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The judgment rendered on 22.10.2021 by the learned Single Judge in the instant Writ Petition (Civil) WP(C).No.22650/2019 is under challenge in the present intra court appeal filed under Sec.5(i) of the Kerala High Court Act, 1958. The appellant in the W.A. are respondents 2 & 3 in the WP(C), R-1 in the W.A. is the writ petitioner and R-2 & R-3 in the W.A. are respondents 4 & 5 in the WP(C). 2. Heard Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public Service Commission, appearing for the appellants, Sri.George Varghese (Perumpallikuttiyil), learned counsel appearing for R-1 in the W.A./writ petitioner, Sri.T.Naveen, learned Standing Counsel for the Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. W.A. No. 223 of 2022 ..3.. appearing for R-2 in the W.A. and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for R-3 (State). 3. The writ petitioner had responded to Ext.P-2 selection notification dated 15.11.2013 issued by the respondent Kerala Public Service Commission (PSC) for selection to the post of Computer Programmer-cum-Operator in the Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. _[hereinafter referred to as “The Beverages Corporation”]_ . After due process of selection, the writ petitioner has been included in Ext.P-5 ranked list dated 3.7.2019 finalized by the PSC. We are told that Ext.P-5 ranked list is still in force. The writ petitioner has been duly included in Ext.P-5 ranked list as Rank No.56 in the Main List of said ranked list, and he has been considered as an Open Competition category candidate. 4. There is no dispute that the writ petitioner does not have any claim for community reservation (vertical reservation). The specific case of the writ petitioner is that he is suffering from physical disability as certified by Ext.P-1 disability certificate issued by the competent medical board, and that he has the right to W.A. No. 223 of 2022 ..4.. be considered for lateral reservation of physically disabled candidates in government services going by the mandate contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation )Act, 1995 (Central Act No.1 of 1996) which came into force on 7.2.1996, which has been later repealed and replaced by the Rights of Persons with Disabilities Act, 2016 (Central Act No. 49 of 2016) which came into force on 28.12.2016. 5. The writ petitioner suffers from locomotor disabilities as certified in Ext.P-1 certificate. It is also common ground that no notification or proceedings has been issued by the competent authority of the State Government identifying the abovesaid post of Computer Programmer-cum-Operator in the Beverages Corporation for lateral reservation of physically disabled candidates either in terms of Sec.32 of the repealed Act or in terms of Sec.33 of the present Act. Hence, the PSC has not prepared any special rank list of physically disabled candidates in respect of the zone of consideration covered by Ext.P-5 ranked list and Ext.P-2 selection notification. The abovesaid post of Computer Programmer-cum-Operator in the Beverages Corporation was W.A. No. 223 of 2022 **==> picture [18 x 9] intentionally omitted <==** identified as suitable for lateral reservation under the abovesaid Central Act for the first time only as per G.O.(P) No. 16/2021/SJD dated 27.9.2021. However, in the Schedule to said G.O. dated 27.9.2021, the post was erroneously described as Computer Operator cum Operator (Beverages Corporation). The learned Single Judge, after hearing both sides, has rendered the impugned judgment on 22.10.2021 disposing of instant WP(C).No.22650/2019 holding that the description in the Schedule of the G.O. dated 27.9.2021 is only mistake and what was intended to be conveyed is the instant post of Computer Programmer-cum-Operator of the Beverages Corporation and that since, the applicant is the sole physically disabled candidate in Ext.P-5 ranked list and since, one vacancy is now available then the writ petitioner should be advised and appointed as against such vacancy on account of his inclusion in Ext.P-5 ranked list. 6. The present intra court appeal has been filed by the PSC. One of the grounds urged in this appeal is that the description of post in abovesaid G.O. dated 27.9.2021 is not the notified post covered by Ext.P-2 selection notification and Ext.P-5 ranked list. W.A. No. 223 of 2022 **==> picture [19 x 9] intentionally omitted <==** The second contention is that even going by the stipulations made by the Government in the abovesaid G.O.(P) No. 16/2021/SJD dated 27.9.2021, all the 5 sub categories of disabled candidates as conceived in the present Act are included as suitable and eligible for lateral reservation of disabled candidates and that therefore, the writ petitioner, who is claiming to suffer locomotor disability, can come only within sub category III and his turn, even in the physically disabled category, could be considered only in sub category III after exhausting the claims of sub category I (visually impaired candidates) and sub category II (hearing impaired candidates), etc. As regards the first contention, we felt at the Admission stage itself that the description of the name of the post in the G.O. dated 27.9.2021 could only be a typographical mistake, and what was intended to be conveyed is the instant post of Computer Programmer-cum-Operator in the Beverages Corporation covered by Ext.P-2 selection notification and Ext.P-5 ranked list. 7. The learned Senior Government Pleader, on instructions, has also fairly submitted that this could be only a W.A. No. 223 of 2022 **==> picture [18 x 9] intentionally omitted <==** typographical mistake and that steps for correction will be taken immediately. Accordingly, we have passed an interim order on 11.2.2022 in this W.A. directing the competent authority of the State Government in the Social Justice Department, who has issued the abovesaid G.O.(P) No. 16/2021/SJD dated 27.9.2021 to ascertain as to whether what was meant to be conveyed by the said G.O. was to identify the suitability of present notified post in the Beverages Corporation for lateral reservation and if that be so, steps will be taken to immediately correct the typographical mistake and to issue a revised erratum G.O., etc. Now, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondent State authorities would submit that a revised erratum G.O. has been issued as per G.O. (P) No.18/2021/SJD dated 21.12.2021 wherein the abovesaid typographical mistake has been corrected and the description of the post in Schedule to the G.O. has been clearly shown as Computer Programmer-cumOperator (Beverages Corporation) and all the other conditions in the earlier G.O. dated 27.9.2021 have been retained. The revised/erratum G.O. dated 21.12.2021 containing the W.A. No. 223 of 2022 ..8.. ## corrected Schedule reads as follows: “ ## കകേരള സർകക്കാർ സസംഗ്രഹസം സക്കാമമൂഹഹ്യനനീതതി വകുപപ് - ബനീവകറേജപ് സപ് കകേക്കാർപകറേഷനതിലലെ കേമഹ്യമൂട്ടർ കപക്കാഗ്രക്കാമർ കേസം ഓപ്പകറേറ്റർ തസസതികേ ഭതിന്നകശേഷതികക്കാർകപ് അനുകയക്കാജഹ്യമക്കായതി പപുറേപപ്ലപടപുവതിച്ച GO(P) No 16/2021/SJD തനീയതതി 27/09/2021 ഉത്തരവപ് കഭദഗതതി ലചെയയ്തു ഉത്തരവപ് പപുറേപപ്ലപടപുവതിക്കുന. ## സക്കാമമൂഹഹ്യനനീതതി (ബതി) വകുപപ് സ.ഉ.(അച്ചടതി) നസം.18/2021/സക്കാ.നനീ.വ തനീയതതി, തതിരുവനന്തപപുരസം, 21/12/2021 - പരക്കാമർശേസം: 1. ശനീ.കജക്കാർജപ് മക്കാതഹ്യപു ഫയൽ ലചെയസ WP(C) No:22650/2019 കകേസതികന്മേലെപുള്ള 2.3.2020 ലലെ ഇടകക്കാലെ ഉത്തരവപ്. - 2. 27/09/2021 ലലെ GO(P) No. 16/2021/SJD നമർ സർകക്കാർ ഉത്തരവപ്. ## ഉത്തരവപ് പരക്കാമർശേസം 1 ലലെ ബഹ. ഹഹകകക്കാടതതിയപുലട ഇടകക്കാലെ ഉത്തരവപ് പകേക്കാരസം ബനീവകറേജപ് സപ് കകേക്കാർപകറേഷനതിലലെ കേമഹ്യമൂട്ടർ കപക്കാഗ്രക്കാമർ കേസം ഓപ്പകറേറ്റർ തസസതികേ ഭതിന്നകശേഷതികക്കാർകപ് അനുകയക്കാജഹ്യമക്കായതി കേലണ്ടെത് **ത** ലകേക്കാണ്ടെപുസം ബഹ. കകേക്കാടതതി ഉത്തരവപ് തനീർപ്പക് **ക** ാ തിലകേക്കാണ്ടെപുസം പരക്കാമർശേസം (2) പകേക്കാരസം ഉത്തരവപ് പപുറേപപ്ലപടപുവതിച്ചതിരുന. 2. എന്നക്കാൽ പരക്കാമർശേസം 2 ലലെ ഉത്തരവതിലലെ 4-)0 ഖണതികേയതിലലെ കടബതിളതിൽ കേമഹ്യമൂട്ടർ ഓപ്പകറേറ്റർ കേസം ഓപ്പകറേറ്റർ എന്നപ് ലതറ്റക്കായക്കാണപ് കരഖപപ്ലപടപുത് **ത** യതിട്ടപുള്ളതപ് . 3. കമൽ സക്കാഹചെരഹ്യത് **ത** ൽ ശനീ. കജക്കാർജപ് മക്കാതഹ്യപു ഫയൽ ലചെയസ WP(C) No.22650/2019 കകേസതികന്മേലെപുള്ള 02/03/2020 ലലെ ബഹ. ഹഹകകക്കാടതതിയപുലട ഇടകക്കാലെ ഉത്തരവപ് തനീർപ്പക് **ക** ാ തിലകേക്കാണ്ടെപുള്ള പരക്കാമർശേസം 2 ലലെ ഉത്തരവതിൽ തക്കാലഴ കചെർക്കുസം പകേക്കാരസം ബനീവകറേജപ് സപ് കകേക്കാർപകറേഷനതിലലെ കേമഹ്യമൂട്ടർ കപക്കാഗ്രക്കാമർ കേസം ഓപ്പകറേറ്റർ എന്നപ് കഭദഗതതി ലചെയയ്തു ഉത്തരവപ് പപുറേപപ്ലപടപുവതിക്കുന. W.A. No. 223 of 2022 ..9.. |**_Sl._** **_No._**|**_Name_** **_of_** **_Post_**|**_Physical_** **_requirement for_** **_performing in the_** **_particular post_**|**_Categories of_** **_Disabilities_**|**_Details of Disability_** **_which_** **_may_** **_be_** **_considered_** **_with_** **_Disability_** **_percentage_**| |---|---|---|---|---| |_1_|_Computer_ _Programmer_ _cum Operator_ _(Beverages_ _Corporation)_|_S, MF, SE, RW, H, C_|**_Category 1_** _Blindness and_ _low vision_|_Low_ _Vision_ _–_ _40% - 60%_| ||||**_Category II_** _Deaf and hard_ _of hearing_|_Hearing_ _Impaired_ _(40-100%)_ _Communication skills_ _– sign language,_ _verbal, read/written as_ _required for the post_ _assessed_ _by_ _the_ _interview_ _board_ _(Expert_ _Committee_ _23-06-2021)_| ||||**_Category III_** _Loco-motor_ _disability,_ _leprosy cured,_ _dwarfism, acid_ _attack victims_ _and muscular_ _dystrophy_|_OL, OA, OAL, BL-_ _Functional_ _upper_ _extremities_| ||||**_Category IV &_** **_V_** _Autism_ _spectrum_ _disorders,_ _intellectual_ _disability,_ _specific learning_ _disability,_ _cerebral palsy_ _and_ _mental_ _illness_ _Multiple_ _disabilities_ _including_ _the_ _above identified_ _combinations_|_ASD_ _(ISSA-mild-_ _moderate)_ _CP (Up to GMFCS-_ _level-3 disability-51-_ _60%) with MACS-_ _level-2_ _SLD_ _Mental_ _Illness_ _40-60%_ _(Moderate)_| _Expansion : S-Sitting, MF-Manipulation by Finger, SE-Seeing, RWReading and Writing, H-Hearing/Speaking, C-Communication, OL-One Arm, OAL – One Arm One Leg, BL-Both Legs._ W.A. No. 223 of 2022 ..10.. 4. പരക്കാമർശേസം 2 ലലെ ഉത്തരവപ് കമൽ കഭദഗതതികയക്കാലട നതിലെനതിൽക്കുന്നതക്കാണപ് . (ഗവർണറേപുലട ഉത്തരവതിൻ പകേക്കാരസം) ഷതിബപു ആർ ലഡെപഹ്യമൂട്ടതി ലസക്രട്ടറേതി കജക്കാർജപ് മക്കാതഹ്യപു , പടതിഞക് **ക** ാറേ വനീടപ്, കേരതികസം വനീടപ്, ലകേക്കാട്ടക്കാരകര അഡെഡ്വകകറ്റപ് ജനറേൽ , എറേണക് **ക** ാ ളസം (with C/L) ലസക്രട്ടറേതി , കകേരള പബപ്ലെതികേപ് സർവനീസപ് കേമനീഷൻ, തതിരുവനന്തപപുരസം (with C/L) ഡെയറേകേക്ടർ , സക്കാമമൂഹഹ്യ നനീതതി വകുപപ്, വതികേക്കാസപ് ഭവൻ, തതിരുവനന്തപപുരസം, മക് **ക** ാനജതിങപ് ഡെയറേകേക്ടർ, കകേരള ബനീവകറേജപ് സപ് കകേക്കാർപകറേഷൻ, തതിരുവനന്തപപുരസം ഭതിന്നകശേഷതികക്കാർകക്കായപുള്ള സസംസസക്കാന കേമതിഷണർ, തതിരുവനന്തപപുരസം സപ്റേപ്കറേക് **ക** ാ പ് ഫയൽ / ഓഫനീസപ് കകേക്കാപ്പതി ഉത്തരവതിൻ പകേക്കാരസം ലസക്ഷൻ ഓഫനീസർ ” 8. So, now there cannot be any dispute that the post of Computer Programmer-cum-Operator in the Beverages Corporation has been identified as suitable by the competent authority of the State Government in the Social Justice Department in terms of Sec.33 of the present Central Act and the 5 Sub categories of disabled candidates mentioned in the Schedule to said G.O. are now identified as suitable and eligible for lateral reservation under the said Act as against the said post. 9. It is now well settled by a series of decisions of the Apex Court as well as of this Court in cases as in _**Govt. of India through Secretary & anr. v. Ravi Prakash Gupta & Anr. [(2010) 7 SCC 626], Union of India & Anr. v. National Federation of**_ W.A. No. 223 of 2022 **==> picture [22 x 7] intentionally omitted <==** _**the Blind & Ors. [(2013) 10 SCC 772]**_ as well as the decision of the Division Bench of this Court in _**Kerala Public Service Commission & Anr. v. E.Dineshan & Ors. [2016 (2) KHC**_ _**910]**_ , etc that the statutory authorities concerned are obliged to consider and pass orders on the issue of suitability of physically disabled candidates for lateral reservation under the abovesaid acts and many a time, there will be delay on the part of the authorities in issuing such orders identifying suitability, etc and once such orders are passed identifying the posts as suitable for such lateral reservation, then the same would relate back to the commencement of the act and in such a situation, the lapsing of lateral reservation as conceived in the provisions of the Act will not occur since, the post was not never earlier identified and therefore, the issue of backlog arrears will also arise, etc. What is more relevant in this case is that the issuance of G.O. dated 27.9.2021 as corrected by G.O. dated 21.12.2021 would result in a situation that the identification of the post in question as suitable for lateral reservation will relate back to the date of commencement of the Act and all the 5 Sub categories mentioned in the Schedule to the G.O. will have to be W.A. No. 223 of 2022 **==> picture [24 x 7] intentionally omitted <==** treated as identified as suitable for such lateral reservation under the Central Act. 10. Sri.P.C.Sasidharan, learned Standing Counsel for the PSC appearing for the appellants would submit that a reading of the provisions contained in Sec.34(2) and its proviso as per the 2016 Act as well as the Sec.36 of the repealed act would make it clear that separate lateral reservation is made for each of the identified sub category of disabled candidates and that the inter change among the sub categories will arise only in the succeeding recruitment year etc and that if, candidates in Sub categories I and II are not available for the present recruitment, then those vacancies will have to be carried forward going by the mandate contained in Sec.34(2) of the present Act and that such vacancies for Sub categories I and II cannot now be claimed by the writ petitioner, who is in Sub Category III, etc. 11. This contention is opposed by Sri.George Varghese (Perumpallikuttiyil), learned counsel appearing for R-1 in the W.A./writ petitioner. 12. Sec.34 of the Rights of Persons with Disabilities Act, 2016, reads as follows: W.A. No. 223 of 2022 ..13.. _“_ _**34. Reservation.** —(1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—_ _(a) blindness and low vision;_ _(b) deaf and hard of hearing;_ _(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness;_ _(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:_ _Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:_ _Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section._ _(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability:_ _Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government._ _(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.”_ 13. We specifically queried as to both sides as to when the abovesaid post of Computer Programmer-cum-Operator was W.A. No. 223 of 2022 **==> picture [24 x 9] intentionally omitted <==** sanctioned in the respondent Beverages Corporation, and as to how many appointments have been made in the previous occasions, and also as to the number of vacancies reported and advised from amongst candidates included in Ext.P-5 ranked list, and the present turn where the selection stopped, etc. Both sides have not been able to apprise us in this regard. There are no pleadings in that regard both in the WP(C) as well as in the W.A. However, _prima facie_ , we may infer that atleast more than one advise would have been made from the present ranked list, and therefore the first turn as far as the present selection process covered by Ext.P-5 ranked list would have been over. We say so because, now, as per the orders passed by the Government, the turns for physically disabled candidates have been now pinpointed as Turn Nos. 1, 34 & 66 instead of the previous Turn Nos. 33, 66 & 99. So, the tenability or otherwise of the rival contentions as to whether candidate like the writ petitioner who claims to be in Sub category III (locomotor disability) could be straightaway considered for advise and appointment, if candidates in Sub categories I & II are not available, etc need not be decided by us at this stage, as decision in that regard has to be taken initially by the PSC. W.A. No. 223 of 2022 ..15.. 14. In view of the indisputable legal position, we have already declared that the effect of the present Government Orders of identifying the suitability of the posts is that the same would relate back to the commencement of the Act. It has also been held by the decisions of this Court as in _**Kerala Public Service Commission & Anr. v. E.Dineshan & Ors. [2016 (2) KHC 910]**_ that for the purpose of backlog vacancies, there is no necessity for a special recruitment and the pending ranked list could be utilized appropriately as against the vacancies reported. Hence, it is ordered that the competent authority of the PSC will take immediate steps to prepare a special rank list of physically disabled candidates from amongst the candidates considered for the selection process covered by Ext.P-2 selection notification and Ext.P-5 ranked list, and if any of the turns of physically disabled candidates like Turn Nos. 1, 34 & 66 have already been bypassed, then the same should be recouped as against the next available vacancy without any further delay by advising such suitable candidates. Till a decision is taken by the PSC on abovesaid aspects, the pending reported vacancy in question shall not be utilized for advice. W.A. No. 223 of 2022 **==> picture [24 x 9] intentionally omitted <==** 15. The issue as to whether in case candidates belonging to Sub Categories I & II are not available in the present zone of consideration, then as to whether Sub category III candidates could be straightaway considered, etc are left open to be raised and decided at the appropriate stage in the manner known to law. All what we would direct now is that after the preparation of special rank list of physically disabled candidates as above, the PSC should take necessary steps to implement the mandate contained in the provision contained in the Central Act, 2016, more particularly Sec.34 thereof, and in the light of the dictum settled by the Apex Court and by the Division Bench of this Court in that regard. The PSC will intimate the above decision so taken by them to the writ petitioner. 16. The directions and orders of the learned Single Judge as per the impugned judgment rendered on 22.10.2021 in WP(C).No.22650/2019 will stand modified and substituted as above. 17. Further, it is made clear that in case the writ petitioner has any legally justiciable grievances after the PSC takes the decision, then he will be at liberty to seek appropriate remedy in the manner known to law. So also, to equip the writ petitioner to know the details W.A. No. 223 of 2022 **==> picture [23 x 9] intentionally omitted <==** of backlog vacancies if any, it is ordered that the respondent Beverages Corporation will immediately inform the writ petitioner the factual details regarding the creation of abovesaid post of Computer Programmer-cum-Operator and how many regular appointments have been made to the said post since its inception and since when, the selection has been entrusted to the PSC, so that the writ petitioner can be apprised as to whether he has got any legally sustainable claims for backlog vacancies etc. Those issues are left open to be raised and decided in the manner known to law. With these observations and directions, the above Writ Appeal will stand disposed of. ## Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG