ZAFFER.C.N. v Union of India and Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN OP (CAT).No. 758 of 2013 (Z) ----------------------------- THURSDAY, THE 18TH DAY OF SEPTEMBER 2014/27TH BHADRA, 1936 ## O.A.813/10 & R.A.5/2012 OF CAT, ERNAKULAM BENCH ## PETITIONER/APPLICANT IN ORIGINAL APPLICATION 813/2010.: ----------------------------------------------------------------------------------------ZAFFER.C.N. AGED 32 YEARS S/O.MR.CHERIYA KOYA, CHERIYANALLAL HOUSE KALPENI ISLAND, UNION TERRITORY OF LAKSHADWEEP. BY ADV. SRI.N.ANILKUMAR RESPONDENT(S)/RESPONDENT IN THE ORIGINAL APPLICATION NO.813/2010): ------------------------------------------------------------------------------------------------------------- ## 1. UNION OF INDIA REPRESENTED BY THE SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001. ## 2. THE ADMINISTRATOR UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555. 3. THE COLLECTOR COM DEVELOPMENT COMMISSIONER UNION TERRITORY OF LAKSHADWEEP, KAVARATTI-682555. **ADDL.R4 IMPLEADED:** ADDL.R4: MOHAMMED HUSSAIN K.C., S/O T.KASIM, KARICHECHETTA HOUSE, KADAMATH, UNION TERRITORY OF LAKSHADWEEP-682 556. (ADDL.R4 IMPLEADED AS PER ORDER DT.20.8.2013 IN I.A.10393/2013). ## **ADDL.R5 IMPLEADED:** ADDL.R5: RUBAYYA KASIM BINTH, AGED 22, D/O JAMAUDHEEN C., CHALAKKAD HOUSE, AGATTI ISLAND, LAKSHADWEEP- 682 555. ADDL.R5 IMPLEADED AS PER ORDER DATED 18.9.14 IN I.A.NO.5248/14) R1 BY SRI.N.NAGARESH ,ASG OF INDIA R2 &3 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN. ADDL.R4 BY ADV. SRI.S.ARUN RAJ ADDL. R5 BY ADV. SRI.VINOD VALLIKAPPAN THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 18-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 758 of 2013 (Z) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE ORIGINAL APPLICATION NO.813 OF 2010 FILED BY THE RESPONDENT/APPLICANT ALONG WITH THE ANNEXURE BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN OA 813 OF 2010. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 20-10-2011 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN ORIGINAL APPLICATION NO.813/2010. EXHIBIT P4: TRUE COPY OF THE REVIEW APPLICATION NO.5/2012 IN OA 813/2010 FILED BY THE PETITIONER BEFORE THE HONOURABLE C.A.T.ERNAKULAM. EXHIBIT P5: TRUE COPY OF THE AFFIDAVIT AND MISCELLANEOUS APPLICATION FILED BY THE PETITIONER BEFORE THE HONOURABLE C.A.T. ERNAKULAM FOR ACCEPTING ADDITIONAL DOCUMENTS. EXHIBIT P6: TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT NOS.2 AND 3 IN RA 5/2012 IN OA 813 OF 2010 BEFORE THE HONOURABLE C.A.T.,ERNAKULAM BENCH. EXHIBIT P7: TRUE COPY OF THE AFFIDAVIT AND MISCELLANEOUS APPLICATION FILED BY THE PETITIONER BEFORE THE HONOURABLE C.A.T.ERNAKULAM FOR ACCEPTING ADDITIONAL DOCUMENTS. EXHIBIT P8: TRUE COPY OF THE AFFIDAVIT FILED ON BEHALF OF RESPONDENTS 2 AND 3 IN RA 5/2012 IN OA 813/2010 BEFORE THE HONOURABLE C.A.T., ERNAKULAM BENCH. EXHIBIT P9: TRUE COPY OF THE ORDER DT.17-8-2012 PASSED BY THE HONOURABLE C.A.T.ERNAKULAM BENCH IN RA 5/2012 IN OA 813/2010. EXHIBIT P10: TRUE COPY OF CIRCULAR DT.29.12.2012 ISSUED BY THE 2ND RESPONDENT. ## **RESPONDENTS' EXHIBITS :** EXT.R4(A): COPY OF SELECT LIST DATED 30.3.2013 ISSUED BY THE DEPUTY COLLECTOR, LAKSHADWEEP DEPARTMENT. TRUE COPY P.S.TO JUDGE dsn **ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. -------------------------------------------------O.P.(C.A.T.)No.758 OF 2013** **-------------------------------------------------DATED THIS THE 18[th] DAY OF SEPTEMBER, 2014** ## **JUDGMENT** ## **ANTONY DOMINIC , J** . This Original Petition is filed challenging Exhibits P3 and P9 orders passed by the Central Administrative Tribunal in O.A.No.813/2010 and R.A.No.5/2012, both filed by the petitioner. 2. Briefly put, the facts of the case are that, on 12.2.2008. Annexure A1 notification was issued by the 2[nd] respondent inviting applications to the post of Deputy Surveyor/Draftsman. Along with others, including additional respondents 4 and 5, the petitioner submitted Annexure A2 application enclosing Annexure A4 certificate to the effect that he suffered from 45% disability. His application was not considered and therefore he filed O.A.No.511/2008 before the Central Administrative Tribunal, Ernakulam. That O.A. was dismissed by the Tribunal taking the view that the post of Deputy Surveyor/Draftsman was not one identified under Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995 OP(CAT)No.758/13 -2- (hereinafter referred to as the 'Disabilities Act' for short). 3. The order passed by the Tribunal was challenged before this Court in W.P.(C)No.33134/2009. In the Writ Petition, the petitioner relied on an Office Memorandum dated 29.12.2005 issued by the Government of India, identifying various posts, including the post of Surveyor. Taking note of this, the Writ Petition was disposed of by Annexure A9 judgment of this Court directing the 2[nd] respondent to consider the claim of the petitioner in the light of the O.M. dated 29.12.2005. Accordingly, his claim was considered and by Annexure A11 order, the 2[nd] respondent rejected the claim on the ground that the 2[nd] respondent did not identify the notified post under Section 32 of the Disabilities Act. 4. It was challenging Annexure A11 order, O.A.No.813/2010 was filed by the petitioner before the Central Administrative Tribunal. By Exhibit P3 order, the Tribunal held that in view of the O.M. dated 29.12.2005 issued by the Government of India, the identification of posts done by the 2[nd] respondent cannot stand in the eye of law. However, the Tribunal declined relief to the petitioner on the ground that in OP(CAT)No.758/13 -3- order to allow 3% reservation provided under Section 33 of the Disabilities Act, there should be at least 33 posts and that since the reply statement showed that the total number of posts was less than 33, there is no scope for considering the case of the petitioner against the reserved quota. 5. Subsequently, the petitioner sought review of the order by filing R.A.No.5/2012, in which he contended thus: “8. It is most respectfully submitted that as per Annexure 6 OM and rules relating to reservation the computation has to be taken by taking posts in group C or D as the case may be, and not the particular post of Deputy Surveyor/Draftsman. According to the reply of Administration there is 58 posts. Hence they are bound to make 2 posts filed by disabled person. Applicants contention is that there are more than 115 posts. As per rules the total group C or D posts in the establishment has to be counted for giving reservation and not the vacancy in Deputy Surveyor/Draftsman alone. In the above circumstances the stand taken by respondents are not correct and applicant is eligible to get the relief prayed. 9. It is further submitted that for effecting this 3% reservation the roster applicable is 1 to 33 as first block 34 to 66 as second block and 67 to 100 as third block. In this posts 1, 34 and 67 are to be earmarked for OP(CAT)No.758/13 -4- reservation. After 100 fresh cycle roster has to start. According to Administration itself there is 58 posts. In such a case posts 1 and 34 are to be earmarked for the reservation. In this point also applicant has to be granted the reliefs.” The Review Application was dismissed by the Tribunal by Exhibit P9 order stating that there were only nine posts of Deputy Surveyor and three posts of Draftsman and that therefore, there is no merit in the contention raised. It is in these circumstances, this Original Petition is filed. 6. We heard the learned counsel for the petitioner, learned Standing Counsel appearing for respondents 1 to 3 and also the learned counsel appearing for additional respondents 4 and 5 who are rank Nos.1 and 2 in the ranked list prepared pursuant to the notification to the aforesaid post issued on 29.12.2012. 7. As we have already seen, the only reason stated by the Tribunal in Exhibit P3 order to decline relief to the petitioner was that the total number of posts was less than 33 and that therefore, the reservation provided in Section 33 of the Disabilities Act is inapplicable. This reasoning is reiterated by the OP(CAT)No.758/13 -5- Tribunal in Exhibit P9 order, while dismissing Review Application No.5/2012 filed by the petitioner also. It is the correctness of this reason, which calls for consideration. 8. In our view, answer to the aforesaid question is the judgment of the Apex Court in **Union of India** v. **National Federation of the Blind [(2013)10 SCC 772]** where the Hon'ble Supreme Court has held that the 3% reservation provided in Section 33 of the Disabilities Act should be computed on total number of vacancies in the cadre strength. The relevant portion of the judgment reads thus: “52. Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz. “ _computing 3% reservation on total number of vacancies in the cadre strength_ ” which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new office memorandum(s) consistent with the decision rendered by this Court. 53. Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, _Indra Sawhney_ is not applicable with respect to OP(CAT)No.758/13 -6- ## the disabled persons. 54. We also reiterate that the decision in _R.K.Sabharwal_ is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST and OBC, which is vertical reservation, whereas reservation in favour of persons with disabilities is horizontal.” Reading of the principles laid down by the Apex Court in the above paragraphs show that unlike in the case of reservation provided pursuant to Article 16(4) of the Constitution of India, reservation provided pursuant to the provisions of the Disabilities Act is not post based, but is vacancy based. Therefore, even if it is assumed that the actual number of posts is less than 33 as found by the Tribunal, reservation should be worked out on the basis of the vacancies. If that be so, the reasoning of the Tribunal as contained in Exhibits P3 and P9 is totally untenable and cannot be accepted. In the result, this Original Petition will stand allowed. Exhibit P3 will stand modified to the above effect and Exhibit P9 will stand set aside. Respondents 1 to 3 are directed to implement the reservation as provided in the Disabilities Act to OP(CAT)No.758/13 -7- the post notified in Annexure A1 either against an existing vacancy or against an immediately arising vacancy. They shall invite applications accordingly, complete selection process and make appointment on that basis. In any case, the process should be completed as expeditiously as possible and at any rate within six months from the date of receipt of a copy of this judgment. It is made clear that irrespective of the age limit prescribed, it would be open to the petitioner to apply in response to the notification to be issued and if he makes an application, his candidature will be considered in accordance with law. Sd/- **ANTONY DOMINIC** , **JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn