IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WA NO. 628 OF 2022
AGAINST THE JUDGMENT DATED 10.05.2022 IN WP(C) 3622/2021
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 10 & 11 IN THE W.P.(C):
1 REMYA V.R.,
ASSISTANT PROFESSOR IN ENGLISH T.K.M.M COLLEGE,
NANGIARKULANGARA RESIDING AT SIJU VIHAR,
PADA NORTH, KARUNAGAPPALLY, KOLLAM-690518.
2 ARUNA S.AJAYAN,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, SIVAGIRI, VARKALA, RESIDING AT
SAMANUAYA, STRA-33 THURUVIKKAL P.O., ULLOOR,
THIRUVANANTHAPURAM-695011.
BY ADVS.
S.MUHAMMED HANEEFF
M.H.ASIF ALI
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 9 IN THE WP(C):
1 ANU JAYAPAL,
AGED 33 YEARS, D/O.K.JAYAPALAN, RESIDING AT
KALACHANAZHIKOM, VALIYAKADA, CHIRAYINKEEZH P.O.,
THIRUVANANTHAPURAM-695 304.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, COLLEGIATE
EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM-695 001.
W.A. No.628 of 2022 & con. cases
2
4 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, THIRUVANANTHAPURAM-695 001.
5 UNIVERSITY OF KERALA,
REPRESENTED BY ITS REGISTRAR, OFFICE OF THE
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695001.
6 THE MANAGER,
SREE NARAYANA COLLEGE, KOLLAM-691 001.
7 APARNA AJITH,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE FOR WOMEN, KOLLAM-691001, RESIDING AT
KRISHNAVANDANA NEW NAGAR-23, MANAKKAD,
VADAKKEVILA P.O., KOLLAM-691010.
8 NARMA S.PRATHEEP,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT ALUVILA VEEDU
YEROOR P.O. YEROOR, ANCHAL KOLLAM-691312.
9 ASWATHY ANILKUMAR,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT KANJIRAM THUNDIL,
ASWATHY, MUKKADA, KUNDARA P.O., KOLLAM-691501.
10 JYOTHSNA C.R.,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, KOLLAM, RESIDING AT KOOTTUNKAL HOUSE,
PERUMBODATH ROAD, KEDAMANGALAM, NORTH PARAVUR,
ERNAKULAM - 683513.
SRI.ELVIN PETER P.J.
SRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL
SRI.THOMAS ABRAHAM SC
SRI.A.N.RAJAN BABU, SC, S.N. COLLEGE
SRI.B.G.HARINDRANATH
SMT.VINITA V SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2022, ALONG WITH WA NOS.646/2022, 653/2022 AND
679/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.628 of 2022 & con. cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WA NO. 646 OF 2022
AGAINST THE JUDGMENT DATED 10.05.2022 IN WP(C) 3622/2021
OF HIGH COURT OF KERALA
APPELLANT/5TH RESPONDENT:
THE MANAGER,
SREE NARAYANA COLLEGE, KOLLAM-691001.
BY ADV A.N.RAJAN BABU
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4 AND 6 TO 11:
1 ANU JAYAPAL,
AGED 33 YEARS, D/O.K.JAYAPALAN, KALACHANAZHIKOM,
VALIYAKADA, CHIRAYINKEEZH P.O.,
THIRUVANANTHAPURAM-695304.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, COLLEGIATE
EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 THE DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM -695001.
4 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, THIRUVANANTHAPURAM-695001.
5 UNIVERSITY OF KERALA,
REPRESENTED BY ITS REGISTRAR, OFFICE OF THE
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695001.
W.A. No.628 of 2022 & con. cases
4
6 APARNA AJITH,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE FOR WOMEN, KOLLAM-691001, RESIDING AT
KRISHNAVANDANA, NEW NAGAR-23, MANAKKAD,
VADAKKEVILA P.O., KOLLAM-691010.
7 NARMA S. PRATHEEP,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT ALUVILA VEEDU,
YEROOR P.O., ANCHAL, KOLLAM- 691312.
8 ASWATHY ANILKUMAR,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT KANJIRAM THUDIL,
ASWATHY MUKKADA, KUNDARA P.O., KOLLAM-691501.
9 JOYTHSNA C.R.
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, KOLLAM, RESIDING AT KOTTUNKAL HOUSE,
PERUBODATH ROAD, KEDAMANGALAM, NORTH PARAVUR,
ERNAKULAM-683513.
10 RAMYA V.R.,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, NANGIARKULANGARA, RESIDING AT SIJU
VIHAR, PADA NORTH, KARUNAGAPPALLY, KOLLAM-690518
11 ARUNA S. AJAYAN,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, SIVAGIRI, VARKALA, RESIDING AT
SAMANUAYA STRA-23, THURUVIKKAL P.O., ULLOOR,
THIRUVANANTHAPURAM-695011.
SRI.ELVIN PETER P.J.
SRI.S.SUJIN
SRI.S.MUHAMMED HANEEFF
SRI.THOMAS ABRAHAM SC
SMT.VINITA V SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2022, ALONG WITH WA NOS.628/2022, 653/2022 AND
679/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.628 of 2022 & con. cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WA NO. 653 OF 2022
AGAINST THE JUDGMENT DATED 10.05.2022 IN WP(C) 3622/2021
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 6 TO 9:
1 APARNA AJITH,
AGED 29 YEARS, ASSISTANT PROFESSOR IN ENGLISH,
SREE NARAYANA COLLEGE FOR WOMEN, KOLLAM 691 001,
RESIDING AT KRISHNAVANDANA NEW NAGAR-23,
MANAKKAD, VADAKKEVILA P.O, KOLLAM 691 010.
2 ASWATHY ANILKUMAR,
ASSISTANT PROFESSOR IN ENGLISH, SREENARAYANA
COLLEGE, PUNALUR, RESIDING AT KANJIRAM THUNDIL,
ASWATHY, MUKKADA, KUNDARA P.O, KOLLAM 691 501.
3 NARMA S. PRATHEEP,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT ALUVILA VEEDU
YEROOR P.O, YEROOR, ANCHAL KOLLAM 691 312.
4 JYOTHSNA C.R,
ASSISTANT PROFESSOR IN ENGLISH, SREENARAYANA
COLLEGE, KOLLAM, RESIDING AT KOOTTUNKAL HOUSE,
PERUMBODATH ROAD, KADAMANGALAM, NORTH PARAVUR,
ERNAKULAM.
BY ADVS.
N.N.SUGUNAPALAN (SR.)
S.SUJIN
W.A. No.628 of 2022 & con. cases
6
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5 & 10, 11:
1 ANU JAYAPAL,
AGED 33 YEARS, D/O. K. JAYAPALAN, RESIDING AT
KALACHANAZHIKOM, VALIYAKADA, CHIRAYINKEEZH P.O,
THIRUVANANTHAPURAM- 695 304.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, COLLEGIATE
EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM- 695 001.
3 THE DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM- 695 001.
4 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, THIRUVANANTHAPURAM- 695 001.
5 UNIVERSITY OF KERALA,
REPRESENTED BY ITS REGISTRAR, OFFICE OF THE
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM- 695001
6 THE MANAGER,
SREE NARAYANA COLLEGE, KOLLAM 691 001.
7 REMYA V.R,
ASSISTANT PROFESSOR IN ENGLISH T.K.M.M. COLLEGE,
NANGIARKULANGARA, RESIDING AT SIJU VIHAR, PADA
NORTH, KARUNAGAPPALLY, KOLLAM 690 518.
8 ARUNA S. AJAYAN,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, SIVAGIRI, VARKALA, RESIDING AT
SAMANUAYA, STRA-33, THURUVIKKAL P.O, ULLOOR,
THIRUVANANTHAPURAM- 695 011.
SRI.ELVIN PETER P.J.
SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
SRI.A.N.RAJAN BABU
SMT.VINITA V. SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2022, ALONG WITH WANOS.628/2022, 646/2022 AND
679/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.628 of 2022 & con. cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
WA NO. 679 OF 2022
AGAINST THE JUDGMENT DATED 10.05.2022 IN WP(C) 3622/2021
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
ANU JAYAPAL,
AGED 33 YEARS, D/O.K.JAYAPALAN, RESIDING AT
KALACHANAZHIKOM, VALIYAKADA, CHIRAYINKEEZHU P.O,
THIRUVANANTHAPURAM - 695 304.
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, COLLEGIATE
EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM - 695 001.
3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, THIRUVANANTHAPURAM - 695 001.
4 UNIVERSITY OF KERALA
REPRESENTED BY ITS REGISTRAR, OFFICE OF THE
UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM - 695 001.
W.A. No.628 of 2022 & con. cases
8
5 THE MANAGER
SREE NARAYANA COLLEGES, KOLLAM - 691 001.
6 SMT.APARNA AJITH,
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYA
COLLEGE FOR WOMEN, KOLLAM - 691 001 RESIDING AT
KRISHNAVANDANA, NEW NAGAR -23, MANAKKAD,
VADAKKEVILA P.O., KOLLAM - 691 010.
7 SMT.NARMA S.PRATHEEP
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT ALUVILA VEEDU,
YEROOR P.O., YEROOR, ANCHAL, KOLLAM - 691 312.
8 SMT.ASWATHY ANILKUMAR
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, PUNALUR, RESIDING AT KANJIRAM THUNDIL,
ASWATHY, MUKKADA, KUNDARA P.O., KOLLAM - 691501.
9 SMT.JYOTHSNA C.R.
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, KOLLAM, RESIDING AT KOOTTUNKAL HOUSE,
PERUMBODATH ROAD, KEDAMANGALAM, NORTH PARAVUR,
ERNAKULAM - 683 513.
10 SMT.REMYA V.R.
ASSISTANT PROFESSOR IN ENGLISH, T.K.M.M.COLLEGE,
NANGIARKULANGARA, RESIDING AT SIJU VIHAR, PADA
NORTH, KARUNAGAPPALLY, KOLLAM- 690 518.
11 SMT.ARUNA S.AJAYAN
ASSISTANT PROFESSOR IN ENGLISH, SREE NARAYANA
COLLEGE, SIVAGIRI, VARKALA, RESIDING AT
SAMANUAYA, STRA - 33, THURUVIKKAL P.O., ULLOOR,
THIRUVANANTHAPURAM - 695 011.
SRI.THOMAS ABRAHAM SC
SRI.A.N.RAJAN BABU, SC, S.N. COLLEGE
SRI.B.G.HARINDRANATH
SMT.VINITA V. SR GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.06.2022, ALONG WITH WA NOS.628/2022, 646/2022 AND
653/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.628 of 2022 & con. cases
9
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
Writ Appeal Nos.628, 646,
653 and 679 of 2022
-----------------------------------------------
Dated this the 29th day of June, 2022
JUDGMENT
P.B.Suresh Kumar, J.
These appeals are directed against the judgment dated 10.05.2022 in W.P.(C) No.3622 of 2021. Parties and documents are referred to in this judgment, as they appear in the writ petition. The documents referred to herein as annexures are documents produced in W.A.No.646 of 2022.
2. The petitioner is a person with disability. She suffers from locomotor disability to the extent of 50%. The writ petition relates to the right of the petitioner to be considered for appointment as Assistant Professor in English in the aided colleges run by the corporate educational agency represented in the proceedings through its Manager, the fifth respondent in W.A. No.628 of 2022 & con. cases 10 terms of the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the 1996 Act) and the Rights of Persons with Disabilities Act, 2016 (the 2016 Act), collectively referred to in this judgment as "the Statutes".
3. In terms of the 1996 Act, which came into force with effect from 07.02.1996, appropriate governments are required to fill up not less than 3% of the vacancies in every establishment with persons with disabilities, after identifying the posts which could be reserved for such persons. In the light of the provisions contained in the 1996 Act, on 17.10.2012, in terms of Ext.P6 order, the State Government has identified the posts in establishments which could be reserved for persons with disabilities. The post of Assistant Professor is one of such posts. In terms of the 2016 Act, which replaced the 1996 Act with effect from 27.06.2016, appropriate governments are required to fill up not less than 4% of the vacancies in every establishment with persons with disability. On 18.11.2018, the State Government issued Annexure A2 order clarifying that the W.A. No.628 of 2022 & con. cases 11 provisions in the Statutes insofar as it relate to the appointment of persons with disabilities, would apply to all educational institutions receiving aid from the State Government by way of staff salary, maintenance etc. and they shall reserve the requisite number of vacancies for such persons and shall also fill up the backlog with effect from 07.02.1996 in terms of the 1996 Act and with effect from 19.04.2017 in terms of the 2016 Act.
4. The petitioner holds qualifications required for appointment to the post of Assistant Professor in English in aided colleges. On 01.01.2020, the fifth respondent issued Ext.P8 notification calling for applications for appointment to the post of Assistant Professor in different Arts subjects in the aided colleges run by the educational agency. The total number of vacancies notified were 60 including 6 vacancies in English. Ext.P8 notification was neither in accordance with the provisions of the Statutes nor in compliance with the directions issued by the Government in Ext.P6 and Annexure A2 orders, inasmuch as it does not provide reservation for persons with W.A. No.628 of 2022 & con. cases 12 disabilities. Nevertheless, the petitioner applied for appointment in response to Ext.P8 notification and participated in the selection process. She was however not selected for appointment. The writ petition was filed at that point of time seeking a direction to the fifth respondent to earmark 4% of vacancies in the post of Assistant Professor covered by Ext.P8 notification for appointment of persons with disabilities and for a direction to the fifth respondent to appoint the petitioner against one among the said vacancies. The case set out by the petitioner in the writ petition in essence was that Ext.P8 notification is bad in law inasmuch as it is not one issued in compliance with the provisions of the Statutes.
5. A counter affidavit has been filed by the fifth respondent in the writ petition contending, among others, that the Statutes cannot be applied to aided institutions as appointments are made therein, in terms of the provisions in the statutes governing the universities (University Statutes) and the Regulations issued by the University Grants Commission (UGC Regulations). It is also stated in the counter affidavit that W.A. No.628 of 2022 & con. cases 13 six persons were appointed against the vacancies in the post of Assistant Professor in English pursuant to Ext.P8 notification, that all of them have joined duty and that their appointments have been approved by the University long before the institution of the writ petition.
6. It is seen that in the light of the stand taken by the fifth respondent in the counter affidavit, the petitioner impleaded the persons appointed pursuant to Ext.P8 notification as Assistant Professors in English as respondents 6 to 11 in the writ petition and amended the writ petition incorporating necessary pleadings to challenge their appointments. Later, in the course of the proceedings, the petitioner has amended the writ petition again to incorporate a prayer to quash Ext.P8 notification also.
7. In the course of the proceedings, on 15.09.2021, the fifth respondent issued Ext.P15 notification calling for applications for appointment to the post of Assistant Professor in the vacancies arose after Ext.P8 notification. Ext.P15 notification was also one issued without complying with W.A. No.628 of 2022 & con. cases 14 the provisions contained in the Statutes as also the directions issued by the Government in Ext.P6 and Annexure A2 orders. The fifth respondent however issued a corrigendum later to Ext.P15 notification, in terms of which 4% of the vacancies covered by that notification were reserved for persons with disabilities.
8. The learned Single Judge, having regard to the provisions in the Statutes as also the various judgments of the Apex Court and this Court dealing with the object, purpose and scope of the provisions in the Statutes, held that Exts.P8 and P15 notifications are illegal inasmuch as they are issued flouting the provisions in the Statutes as well as the directions of the Government in Ext.P6 and Annexure A2 orders. The defect in Ext.P15 notification found by the learned Single Judge was that the reservation made in favour of persons with disabilities by way of corrigendum notification was not in compliance with the directions issued by the Apex Court that aided institutions shall fill up the backlog vacancies right from the date of commencement of the 1996 Act. In the W.A. No.628 of 2022 & con. cases 15 circumstances, the learned single judge quashed Exts.P8 and P15 notifications and disposed of the writ petition directing the fifth respondent to comply with the provisions of the Statutes and directions of the Government. The operative portion of the judgment reads thus:
"(a) Exhibit P8 and P15 notifications issued by the 5th respondent will stand quashed. As Exhibit P8 stands quashed, the prayer sought by the petitioner to appoint her to the vacancy earmarked for PwD candidates in pursuance to Exhibit P8 cannot be granted.
(b) The 5th respondent shall issue fresh notification after earmarking 3%/4% of the vacancies in the post of Assistant Professor in Aided Colleges run by the 5th respondent and affiliated to various Universities in the State of Kerala in terms of the mandate under Act 1 of 1996 and Act 49 of 2016 and strictly in tune with law laid down by the Apex Court as well as this Court and in adherence to the guidelines in G.O.(P) No.18/2018/SJD dated 18.11.2018.
(c) The 5th respondent, while calling for fresh applications as directed above, shall not insist upon the petitioner or the party respondents whose appointments have been quashed to file fresh applications. The applications filed by them in pursuance to Exhibit P8 shall be reckoned as sufficient.
W.A. No.628 of 2022 & con. cases 16
(d) The 5th respondent shall strictly take steps to fill the backlog from 7.2.1996 to 18.4.2017 as per the provisions of Act 1 of 1996 and earmark 4% vacancies for the period thereafter in terms of Act 49 of 2016.
(e) As I have held that the 5th respondent has attempted to intentionally frustrate the rights of disabled persons such as the petitioner by blatantly ignoring the provisions of the relevant statutory enactments, there will be a direction to the 5th respondent to pay a sum of Rs.10,000/- by way of costs to the petitioner, to be paid within a period of three weeks from the date of receipt of a copy of this Judgment."
As is evident from the operative portion of the judgment, this Court also directed the fifth respondent to pay to the petitioner a sum of Rs.10,000/- by way of costs. The appeals are preferred challenging the said decision of the learned Single Judge.
9. Among the appeals, writ appeal No.628 of 2022 is preferred by respondents 10 and 11, W.A.No.646 of 2022 is preferred by the fifth respondent, W.A.No.653 of 2022 is preferred by respondents 6 to 9 and W.A.No.679 of 2022 is preferred by the petitioner herself.
W.A. No.628 of 2022 & con. cases 17
10. Heard Senior Counsel Sri.N.N.Sugunapalan for the appellants in W.A.No.653 of 2022, Adv.Sri.S.Muhammed Haneef for the appellants in W.A.No.628 of 2022, Adv.Sri.A.N.Rajan Babu for the appellant in W.A.No.646 of 2022 and Adv.Sri.Elvin Peter P.J. for the appellant in W.A.No.679 of 2022.
11. Sri.A.N.Rajan Babu, learned counsel for the Manager who is the appellant in W.A.No.646 of 2022 submitted that insofar as appointments to the post of Assistant Professor in aided colleges affiliated to the Universities in the State are governed by the provisions contained in the University Statutes, without appropriate amendments in the University Statutes and without instructions from the State Government, the colleges could not have, on their own, given effect to the provisions of the Statutes. It was argued by the learned counsel alternatively that even assuming that amendments to the University Statutes were not necessary and a direction from the Government as done in Annexure A2 order alone is sufficient for the said purpose, the direction in Annexure A2 order was only that W.A. No.628 of 2022 & con. cases 18 instructions for implementation of the provisions in the Statutes will be issued by the concerned administrative department of the State Government. According to the learned counsel, detailed instructions for implementation of the provisions of the Statutes were issued by the State Government only much later in terms of Annexures A3 and A4 orders on 15.02.2021 and on 18.05.2022 respectively, and insofar as Ext.P8 notification is one issued before Annexures A3 and A4 orders, there is no infirmity in the said notification. It was also argued by the learned counsel that the petitioner has in fact applied for selection against open vacancies and she could have, therefore, challenged the appointments of respondents 6 to 11 by way of an appeal before the University Appellate Tribunal in terms of the provisions of the concerned University Statute, and the writ petition instituted without taking recourse to the said alternative remedy should have been dismissed as not maintainable. It was also argued by the learned counsel that it was long after the conclusion of the selection process and long after the appointments were approved by the University, the W.A. No.628 of 2022 & con. cases 19 petitioner approached this court with the writ petition. It was pointed out by the learned counsel that initially when the writ petition was instituted, there was no prayer to quash the notification and such a prayer was made only at the fag end of the hearing of the writ petition and when such a prayer was made, the prayers in the writ petition have become mutually destructive in as much as the petitioner cannot seek orders quashing Ext.P8 notification and orders directing the fifth respondent to appoint her in one among the vacancies covered by Ext.P8 notification at the same time. According to the learned counsel, the writ petition should have been dismissed on that score as well. It was also pointed out by the learned counsel that Annexure A2 order was challenged by other educational agencies before this Court in W.P.(C) No.1806 of 2019 and connected cases and the said writ petitions were disposed of only on 26.08.2020. According to the learned counsel, insofar as Ext.P8 notification was issued during the pendency of the said writ petitions, the educational agency cannot be found fault with for not having made a provision W.A. No.628 of 2022 & con. cases 20 therein for appointment of persons with disabilities. The learned counsel concluded his arguments pointing out that at any rate, there was absolutely no justification for the learned Single Judge to take the stand that the fifth respondent has acted deliberately for frustrating the provisions of the Statutes, and there was no justification for the learned Single Judge in imposing a cost on the fifth respondent on that basis.
12. Sri.N.N.Sugunapalan, the learned Senior Counsel for the appellants in W.A.No.653 of 2022 who are some among the appointees, has supported the arguments advanced by the learned counsel for the appellant in W.A.No.646 of 2022. In addition, the learned Senior Counsel has placed reliance on the decision of the Apex Court in K.H.Siraj v. High Court of Kerala, (2006) 6 SCC 395, in support of the contention that the petitioner who has participated in the selection process after fully knowing that there was no provision for reservation in the notification, is precluded from challenging Ext.P8 notification. That apart, it was pointed out by the learned Senior Counsel that altogether 60 appointments W.A. No.628 of 2022 & con. cases 21 have been made pursuant to Ext.P8 notification and only six among them were arrayed as parties to the writ petition. According to the learned Senior Counsel, in the circumstances, this Court ought not have interfered with Ext.P8 notification. The learned Senior Counsel has relied on the decision of the Apex Court in B.Ramanjini v. State of A.P., (2002) 5 SCC 533, in support of the said contention. The learned counsel has also contended that the writ petition was a highly belated one and should have been dismissed on that ground inasmuch as it was instituted after the conclusion of the selection process and after the approval of the appointments by the University. The learned Senior Counsel has relied on the decision of the Apex Court in University of Delhi v. Union of India, (2020) 13 SCC 745, in support of the said contention. The learned Senior Counsel has concluded his arguments pointing out that insofar as the fifth respondent has come forward with a corrigendum to Ext.P15 notification earmarking 4% of the vacancies to persons with disabilities, there was absolutely no reason for the learned Single Judge in interfering with the selection process W.A. No.628 of 2022 & con. cases 22 commenced and concluded pursuant to Ext.P8 notification in as much as the interest of the petitioner could have been protected by permitting her to apply for appointment pursuant to Ext.P15 notification.
13. Sri.S.Muhammed Haneef, the learned counsel for the appellants in W.A.No.628 of 2022 who are also some among the appointees, supported the arguments advanced by Sri.A.N.Rajan Babu as also the learned Senior Counsel Sri.N.N.Sugunapalan. In addition, the learned counsel submitted that the backlog vacancies to be filled up with persons with disabilities in terms of the provisions of the Statutes in the various colleges under the fifth respondent upto date would only be around 20 and there are, as of now, 72 vacancies and the learned Single Judge, in the circumstances, could have ensured compliance of the provisions of the Statutes by directing the fifth respondent to earmark the up-to-date backlog in the selection process commenced as per Ext.P15 notification. According to the learned counsel, it was unnecessary, therefore, to set at naught the entire selection W.A. No.628 of 2022 & con. cases 23 process commenced and concluded in terms of Ext.P8 notification.
14. Sri.Elvin Peter P.J., the learned counsel for the appellant in W.A.No.679 of 2022 contended that the judgment of the learned Single Judge to the extent it has not directed the fifth respondent to appoint the petitioner in one among the vacancies in any of the aided colleges under the fifth respondent is illegal.
15. We have given a thoughtful consideration to the submissions made by the learned counsel for the parties on either side.
16. Before examining the sustainability or otherwise of the various contentions raised by the learned counsel for the parties on either side, we deem it apposite to make a brief note of the background of the Statutes, its objectives, the roadblocks that came in the way of its implementation, the interventions made by the Apex Court to ensure its compliance etc.
17. There is no ounce of doubt to the fact that W.A. No.628 of 2022 & con. cases 24 employment is a key factor in the empowerment and inclusion of people with disabilities. As observed by the Apex Court in Union of India v. National Federation of the Blind, (2013) 10 SCC 772, disabled people are out of employment not because their disability comes in the way of their functioning, but because of social and practical barriers that prevent them from joining the workforce. As the world is not able to tackle this menace, many disabled people still live in poverty and in deplorable conditions and they are deprived of the right to make a useful contribution not only to their own lives but also to the lives of their families and community. An urgent need was felt therefore, in the meeting of the Economic and Social Commission for Asia and Pacific (ESCAP) held at Beijing in December, 1992 to tackle this menace and consequently, a proclamation was made in the said meeting on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region. As noted by the learned Single Judge, India being a signatory to the aforesaid proclamation, it was obligatory to enact a suitable legislation and it is in this W.A. No.628 of 2022 & con. cases 25 background that the 1996 Act was brought into force with a view to provide better employment opportunities to persons with disabilities.
18. It is seen that the initial roadblock which came in the way of implementing Section 33 of the 1996 Act providing for reservation of employments for persons with disabilities was that the provision was understood by the authorities concerned as dependent on identification of posts. The said impediment was removed by the Apex Court in terms of the judgment in Govt. of India v. Ravi Prakash Gupta, (2010) 7 SCC 626 holding that implementation of Section 33 of the 1996 Act is not dependent upon the identification of posts and that the question of identification comes only at the stage of appointment. Another roadblock which came in the way of implementing the provisions of the 1996 Act was the argument that computation of reservation against the total vacancies in the cadre strength will violate the rule of 50% ceiling on reservation. The said impediment was removed by the Apex Court in the judgment in National Federation of the Blind W.A. No.628 of 2022 & con. cases 26 (supra), holding that the rule of 50% ceiling on reservation applies only to the reservation in favour of Other Backward Classes under Article 16(4) of the Constitution of India and that the reservation in favour of persons with disabilities falls under Article 16(1) of the Constitution. It is seen that since the provisions of the Statutes have not been given effect to even after the judgments of the Apex Court referred to above, in Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383, the Apex Court directed the Central and State Governments to implement the provisions of the 1996 Act in its letter and spirit without delay, and positively, before the end of 2014. It was observed by the Apex Court in the said case that the beneficial provisions in the 1996 Act cannot be allowed to remain on paper for years, thereby defeating the very purpose of such a law and legislative policy and that the role of the governments in matters of this nature has to be proactive and not obstructive or lethargic. Later, in Dineshan v. State of Kerala, 2015 (1) KLT 540, this Court clarified that the 1996 Act being one passed by the Parliament will prevail over the State W.A. No.628 of 2022 & con. cases 27 Acts or Regulations as envisaged by Article 254 of the Constitution and any repugnance in the State Acts or Regulations shall not stand in the way of implementing the mandate in the 1996 Act.
19. While matters stood thus, with a view to implement the Convention on the Rights of Persons with Disabilities adopted by the United Nations General Assembly on 13th day of December 2006, the Parliament enacted the 2016 Act for empowerment of persons with disabilities in a more elaborate manner to confer more benefits to persons with disabilities. In terms of the provisions contained in the 2016 Act, the percentage of reservation provided for in the 1996 Act was raised to 4%. Section 3 of the 2016 Act provides that the appropriate government shall ensure that persons with disabilities enjoy the right to equality and that no person with disability is discriminated on such ground. It is seen that having regard to the fact that more elaborate and comprehensive legislation, viz, the 2016 Act has been introduced covering the subject on 25.05.2017, the Apex Court W.A. No.628 of 2022 & con. cases 28 in Justice Sunanda Bhandare Foundation v. Union of India, (2017) 14 SCC 1, has directed the States and Union Territories again to give effect to the provisions contained in the 2016 Act within 12 weeks, after observing that when the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in promptitude. It was also directed by the Apex Court in the said case that steps taken in this regard shall be stated in the compliance report to be filed before the Apex Court within the time stipulated. It is seen that it is in compliance with the said direction that Annexure A2 order has been issued by the State Government directing, among others, to ensure 3% reservation on the total number of vacancies in the cadre strength in appointments in aided colleges and to fill the backlog from 7.2.1996 to 18.4.2017 on that basis in terms of the 1996 Act and to provide 4% reservation on the total number of vacancies in the cadre strength in appointments in aided colleges with effect from 19.04.2017 in terms of the 2016 Act forthwith.
W.A. No.628 of 2022 & con. cases 29
20. As pointed out by the learned counsel for the appellants, Annexure A2 order was under challenge before this Court in a batch of writ petitions on various grounds and the challenge was repelled by this Court as per the decision in Renjith v. State of Kerala, 2020 (5) KLT 324, and the matters were disposed of directing the institutions concerned to conduct selection and appointment in tune with Annexure A2 order and to fill up the vacancies as directed therein.
21. It is seen that it is in the above background that the learned Single Judge held that Exts.P8 and P15 notifications which do not provide for 3%/4% reservation as mandated in the Statutes are illegal, and quashed the same. The defect found by the learned Single Judge in Ext.P15 notification was that although there was an attempt to incorporate a provision in the notification subsequently for reservation of 4% of the vacancies for persons with disabilities, the fifth respondent has not attempted to fill up the backlog in the selection process as directed in Annexure A2 order.
22. As noted, the mandate on the appropriate W.A. No.628 of 2022 & con. cases 30 government in terms of the 1996 Act is to appoint persons with disabilities in every establishment in not less than 3% of the vacancies, whereas the mandate on the appropriate government in terms of the 2016 Act is to appoint persons with disabilities in every establishment in not less than 4% of the vacancies. The fact that aided colleges would fall within the scope of the definition of "establishment" as defined in the Statutes is not disputed by any of the respondents. The contentions taken by the respondents are only as regards the alleged bottlenecks in the matter of implementing the provisions of the Statutes and as regards the manner in which the learned Single Judge has dealt with the matter.
23. Let us first examine the contentions taken by the fifth respondent. The first and foremost contention of the fifth respondent is that insofar as the appointments to the post of Assistant Professor in aided colleges affiliated to the Universities in the State are governed by the provisions contained in the University Statutes, without appropriate amendments in the University Statutes and without instructions W.A. No.628 of 2022 & con. cases 31 from the State Government, the colleges could not have, on their own, given effect to the provisions in the Statutes. As noted, the contention that the provisions of the Statutes cannot be implemented without appropriate amendments in the University Statutes is one repelled by this Court in Dineshan (supra). As regards the requirement of instructions from the State Government, Annexure A2 order issued by the State Government categorically directs that the appointments in aided colleges shall not be made thereafter otherwise than in accordance with the provisions of the Statutes. On a query from the court as to the justification for seeking further instruction from the Government even after Annexure A2, the feeble argument advanced by the learned counsel for the fifth respondent was that the direction in Annexure A2 order is only that the concerned administrative department of the State Government will communicate to the colleges directions for implementation of the provisions of the Statutes and such instructions have not been received by the aided colleges from the Collegiate Education Department. The fifth respondent has W.A. No.628 of 2022 & con. cases 32 no case that he was not aware of Annexure A2 order. If the fifth respondent was aware of Annexure A2 order before issuing Ext.P8 notification, it was obligatory for him to seek appropriate clarification from the Collegiate Education Department before venturing into the selection process. Admittedly, the fifth respondent has not resorted to such a course of action. Instead what could be seen from the materials on record is that the fifth respondent has proceeded to make appointments in the colleges flouting the provisions of the Statutes. According to us, the contention now raised that the administrative department of the State Government has not issued directions for implementation of the provisions of the Statutes is one taken without any bona fides. Needless to say, the contention is only to be rejected.
24. Another contention of the fifth respondent is that Annexure A2 order was impugned in a batch of writ petitions before this court and since Ext.P8 notification was issued during the pendency of the said writ petitions, the fifth respondent is not expected to comply with the direction W.A. No.628 of 2022 & con. cases 33 contained in Annexure A2 order. The fifth respondent has admittedly not challenged Annexure A2 order before this court and since he has not challenged Annexure A2 order, according to us, it was obligatory for him to implement the directions contained in the said order. Merely for the reason that someone else has challenged the said order, it cannot be contended that the fifth respondent was not obliged to comply with the order, especially when there was no interim order in the matters in which Annexure A2 order was challenged.
25. Another contention of the fifth respondent is that it is in terms of Annexures A3 and A4 orders dated 15.02.2021 and 18.05.2022 respectively, necessary administrative instructions have been given by the Government for implementing the provisions of the Statutes and Ext.P8 notification is one issued long prior to the same. A perusal of Annexure A3 order would show that the Government has only clarified that Annexure A2 order would apply to all appointments made in private aided Arts and Science colleges in the State and that a separate ranked list should be prepared W.A. No.628 of 2022 & con. cases 34 including the candidates belonging to persons with disabilities. It is seen that even the said clarification was issued by the Government in compliance with the direction issued by this Court in W.P.(C) No.224 of 2019. True, in terms of Annexure A4 order, the Government has issued a few instructions for implementation of the provisions of the Statutes. The instructions in Annexure A4 order insofar as it relate to aided colleges read thus:
"1) സ സ നത യ ണ ററ മ നനജതമനറ വ ഭ ഗ ൽത ട
എയഡ ആർട & സയൻസ ന" ന#ജ$"ൾ /എയഡ ത&'യ ന ങ
ന" ന#ജ$"ൾ / എയഡ അറബ " ന" ന#ജ$"ൾ, എയഡ
എഞ ന,യറ ഗ ന" ന#ജ$"ൾ, എയഡ ന- # ത'"ന "
ന" ന#ജ$"ൾ എന വ 'ങ# ൽ അനദ1 -" തസ4 ""ൾ
എല "' ഒറ യ ണ റ യ$ അദ1 -" തസ4 ""ൾ എല
"' ഒറ യ ണ റ യ$ ന" ർ നററ മ നനജതമനറ
വഭ ഗ ൽത ട ന" ന#ജ$"# ൽ ഓന8
യ ണ നവഴ റ യ$ത'യ$ -8 ധ യ ൽ ഒ8$ മ നനജതമനറ ന
",ഴ ൽ വ8$ന എല ന" ന#ജ$"# ന<യ$ അനദ1 -"
തസ4 ""ൾഎല " ' ഒറ യ ണ റ യ$ അദ1 -" തസ4 ""ൾ
എല "' ഒറ യ ണ റ യ$ "ണ ഭ നന>ഷ സ വ8ണ
ന' < ന@ണത ണ.
2) 7.2.1996 മ$തൽ 18.4.2017 വത8 3 >തമ നവ$ 19.4.2017 മ$തൽ 4 >തമ നവ$ ഓന8 ഭ നന>ഷ വ ഭ ഗ ന$ 1 >തമ ന W.A. No.628 of 2022 & con. cases 35 <ഭ @$ന 8,ത യ ൽ ഭ നന>ഷ സ വ8ണ ന' < ന@ണത ണ.
3) ഭ നന>ഷ സ വ8ണ ഇത$വത8 ന' < @
സ -നങൾ@ 7.2.1996 മ$തൽ 18.4.2017 വത8 ന' യ
ന യമങ# ൽ 3 >തമ നവ$ 19.4.2017 മ$തൽ ഇത$വത8
ന' യ ന യമങ# ൽ 4 >തമ നവ$ ബ@ ന< ഗ
ഒഴ വ$"# യ "ണ@ @ ഇന മ$തൽ ഒഴ വ$ വ8$ന
തസ4 ""# ൽ സ വ8ണ ന' ന@ണത ണ. ന <വ ൽ
ഭ നന>ഷ @ ത8 ന യമ ച ട$ണ എങ ൽ ആ ന യമനങൾ
ബ @ ന< ഗ ൽ "$റവ വ8$ വ$നത ണ.
4) 4% ഭ നന>ഷ സ വ8ണ , റ സർനവഷൻ നറ സറ ൽ 25 നതറ
ഓന8 നE @ <$ ആദ1 തസ4 " ഭ നന>ഷ @ ർ@ യ
സ വ8ണ തGയ4 $ റ സർനവഷൻ നറ സർ തറ നടഷൻ
അ' സ ന ൽ തയ റ ന@ണത ണ.
5) മ$ൻഗണന &"മ 1. " ഴI-8 മ തർ, 2. &>വണ -8 മ തർ, 3.
അ ഗവവ"<1മ$ളവർ, 4.ന< ന@ നമ നട ർ ഡ സബ < റ /
തസറ &ബൽ - ൾസ എന 8,ത യ < യ 8 @ണ .
6) തറ നടഷൻ വ1വസ&-" 8 അദ1 -" തസ4 "യ ത< ഏത
വ ഭ ഗങ# ൽത ട ന- സ$"# ണ ഭ നന>ഷ സ വ8ണ ൽ
ഉൾത '$" എന ന ശയ ച വ ജ -ന ൽ വ1കമ യ
ന8ഖത '$ യ 8 @ണ .
7) അർഹതത ട എല വ ഷയങൾ@$ സ വ8ണ <ഭ @$ന
8,ത യ ൽ തറ നടഷന < യ 8 @ണ ന യമന ന'ന ണത.
8) ആറ വ1വസ&-" 8 തസ4 " ന ശയ @$നS ൾ
W.A. No.628 of 2022 & con. cases
36
ന <വ ൽ ഭ നന>ഷ @ ർ 4 >തമ ന ഉള -ഠനവ ഭ ഗ ത<
തസ4 " തതന വന ൽ തത ട'$ വഭ ഗ ത<
തസ4 "യ ന<@ സ വ8ണ മ റ വ$നത ണ.
-ഠനവ"$ $"#$ത' ഇ ഗ,ഷ അക8മ < &"മ <$ള ഒ8$
-ട " തയ റ @ അത ത< &"മ < യ 8 @ണ ഇങതന
മ റ$നത.
9) സയൻസ വ ഷയങ# ൽ " ഴI -8 മ തർ@$ള സ വ8ണ
GO(P)No.119/2005/SWD dated 6/8/2005 നSർ ഉ 8വ നനറയ$
" < " <ങ# ൽ സ മ ഹ1ന,ത വ"$ -$റത '$വ @$ന
നഭദഗത ഉ 8$വ$"# ത< വ1വസ"ൾ@$
വ നധയമ യ 8 @$ .
10) " യ " വ ദ1 ഭ1 സ വ"$ തന സ വ8ണ -8 ധ യ ൽ
ന ന$ ഒഴ വ @$നത ന$ നവണ RPWD Act മ$ ന <
വ"$ ത< (1)-)o ഉ-വ"$ നതറ 2-)o ക പ4ന ബനന &-" 8
സ സന ഭ നന>ഷ "മ,ഷണറ$മ യ ആന< G ച
വ ജ -ന -$റത '$വ @$നത ണ.
11) ഭ നന>ഷ സ വ8ണ ഉൾത '$ യ നറ സർ അത ത
എയഡ വ ദ1 ഭ1 സ സ -നങൾ സ ക ന@ണത ണ.
" ' തത ' നറ സറ നതറ -"ർ തസ<കൻ
"മറ യ ന<@$ള സർ@ ർ നന മ ന @ യ അന-ക @$ന
നവ#യ <$ ന യമന ഗ," 8 ന യ അന-ക @$ന
നവ#യ <$ ന യമന ധ " 8 ഹ ജ8 ന@ണത ണ.
12) ഭ നന>ഷ @ ർ@ യ സ വ8ണ തGയ4 തസ4 "യ ൽ
അന-ക"ർ ഇല തത വന ൽ ഒ8 വർ " ട വ ജ -ന
തGനയണത$ അത ന$ ന>ഷവ$ ഇല തത വന ൽ ഖണ " (8)
W.A. No.628 of 2022 & con. cases
37
ത< ന ബനന&-" 8 തറ നടഷൻ മ റ വ$നത$മ ണ.
13) എയഡ ആർട & സയൻസ ന" ന#ജ$"ൾ/എയഡ ത&'യ ന ങ
ന" ന#ജ$"ൾ/ എയഡ അറബ " ന" ന#ജ$"ൾ എന വയ ൽ
7/2/1996 മ$ത<$ള അദ1 -" തസ4 ""ൾ "ണ@ @
തറ നടഷൻ &-" 8 ബ@ ന< ഗ നവ@ൻസ
ന ശയ @$നത ന സർവ"< > <"ത#യ$ അനദ1 -"
തസ4 ""ൾ "ണ@ @ തറ നടഷൻ &-" 8 ബ @ ന< ഗ
നവ@ൻസ ന ശയ @$നത ന ന" ന#ജ വ ദ1 ഭ1 സ
ഡയറക^നറയ$ G$മത<ത '$ $ന$. ന യമന ന സർ@ ർ
&-ത ന ധ തയ ആവ>1ത '$ന ഘട ൽ സർവ"< > <യ$
ന" ന#ജ വ ദ1 ഭ1 സ ഡയറക^റ$ തയ റ @ നൽ"$ന നറ സർ
സർ@ 8 ൽ ഹ ജ8 ന@ണത ണ. " ' തത, ന യമന ഗ," 8
നലa$ന നവ#യ ൽ ' തറ നടഷൻ - < ച ട$തണന ബനത ട
അധ " 8 ഉറ $വ8$ന ണത ണ.
14) എയഡ എഞ ന,യറ ഗ ന" ന#ജ$"# ൽ 7/2/1996 മ$ത<$ള തസ4 ""ൾ "ണ@ @ തറ നടഷൻ &-" 8 ബ @ ന< ഗ നവ@ൻസ ന ശയ @$നത ന എ.- .തജ. അബ$ൾ "< സ നങത " സർവ"< > <തയയ$ സ നങത " വ ദ1 ഭ1 സ ഡയറക^നറയ$ G$മത<ത '$ $ന$. ന യമന ന സർ@ ർ &-ത ന ധ തയ ആവ>1ത '$ന ഘട ൽ സർവ"< > <യ$ സ നങത " വ ദ1 ഭ1 സ ഡയറക^റ$ തയ റ @ നൽ"$ന നറ സർ സർ@ 8 ൽ ഹ ജ8 ന@ണത ണ. " ' തത, ന യമന ഗ," 8 നലa$ന നവ#യ ൽ ' തറ നടഷൻ
- < ച ട$തണന ബനത ട അധ " 8 ഉറ $വ8$ന ണത ണ.
15) എയഡ ന- # ത'കc " ന" ന#ജ$"# ൽ 7/2/1996 മ$ത<$ള തസ4 ""ൾ "ണ@ @ തറ നടഷൻ &-" 8 ബ @ ന< ഗ W.A. No.628 of 2022 & con. cases 38 നവ@ൻസ ന ശയ @$നത ന സ നങത " വ ദ1 ഭ1 സ ഡയറക^തറ G$മത<ത '$ $ന$. സർ@ ർ &-ത ന ധ തയ ന യമ @$ന ഘട <$ ന യമന ഗ," 8 നലa$ന നവ#യ <$ ' തറ നടഷൻ - < ച ട$തണന സ നങത "
വ ദ1 ഭ1 സ ഡയറക^ർ ഉറ $വ8$ന ണത ണ.
16) ഈ സർ@ ർ ഉ 8വ നതറ അ' സ ന ൽ
സർവ"< > <"# ൽ സ ററ1$ട ന< തറഗ$ന<ഷന$"# ന<
നഭദഗത വ8$ന ണത$തണങ ൽ ഈ ഉ 8വ ത,യത മ$തൽ 3
മ സ ന" ആയത ന' ൽ വ8$ന ണത ണ.
17) ബ@ ന< ഗ തസ4 ""ൾ ന" $നത ന &-നത1"
വ ജ -ന -$റത '$വ @ വ$നത ണ.
(18) എയഡ ആർട & സയൻസ ന" ന#ജ$"ൾ /എയഡ ത&'യ ന ങ
ന" ന#ജ$"ൾ / എയഡ അറബ " ന" ന#ജ$"ൾ, എയഡ
എഞ ന,യറ ഗ ന" ന#ജ$"ൾ, എയഡ ന- # ത'"ന "
ന" ന#ജ$"ൾ എന, സ -നങ# ത< ന യമനങ# ൽ
ഭ നന>ഷ സ വ8ണ ന യ ന യമന&-&" യയ$ത' ഭ ഗമ യ
&-നത1" റ ങ -ട " തയ റ ന@ണത ണ. റ ങ -ട "യ ത<
ആദ1റ ങ$" 8ൻ നജ < യ ൽ &-നവ> @$ന ല തയങ ൽ
അർഹത മ നദണ അന$സ8 ച$ള അ'$ റ ങ$" 8ന
സ വ8ണ മ റ നൽന"ണത ണ.
19) യ$.ജ .സ മ നദണമന$സ8 ച$ള നയ ഗ1തയ$ മറ
ത 8തe'$ മ നദണങ#$ സ വ8ണതസ4 ""ൾ@$
ബ ധ"മ യ 8 @$ .
20) ഈ ഉ 8വ ന മ$ൻ- ന' യ ന യമനങൾ
W.A. No.628 of 2022 & con. cases
39
സ ധ "8 @$ന$. ഇവ "' ബ @ ന< ഗ തസ4 "യ യ
"ണ@ @ ന "ന ണത ണ."
A close reading of the extracted instructions would show that the same is issued in the nature of clarifications for effective implementation of the provision of the Statutes and it cannot be said that the provisions of the Statutes could not have been implemented without the said instructions. If as a matter of fact, there was any genuine difficulty in implementing the provisions of the Statutes without clarifications as mentioned by the Government in Annexure A4 order, it was open to the fifth respondent to seek appropriate clarification/direction from the Government. That apart, the fifth respondent has no case in the counter affidavit that it is due to want of clarifications in respect of matters covered by Annexure A4 order that he could not implement the provisions of the Statutes. The contentions aforesaid also are, in the circumstances, mischievous.
26. Another contention raised by the fifth respondent is that the petitioner is a person who has applied for selection against an open vacancy and if at all she was W.A. No.628 of 2022 & con. cases 40 aggrieved by the appointments made against open vacancies, she should have taken recourse to the alternative remedy available to her before the University Appellate Tribunal. The contention is feeble, for it is trite that the existence of alternative remedy is not a bar for entertaining a writ petition and the Court, having regard to the facts and circumstances of the case, has the discretion to take a call as to whether a writ petition should be entertained having regard to the alternative remedy available to the party approaching the court. On facts, having regard to the persistent efforts taken by the Apex Court in removing the impediments that stood in the way of giving effect to the provisions of the Statutes and to ensure its compliance, we are of the view that in a matter of this nature, this Court is obliged under law to entertain a writ petition of the present nature to issue peremptory orders to ensure compliance of the provisions of the Statutes. The contention therefore, lacks merit and is also, accordingly, rejected.
27. Another contention raised by the fifth respondent is that the petitioner being a person who has W.A. No.628 of 2022 & con. cases 41 participated in the selection process pursuant to Ext.P8 notification and failed to secure a place in the select list, she is precluded from challenging the notification. We do not find any merit in this contention as well. A candidate who participates in a selection process only accepts the procedure prescribed for the selection. But if there is a substantive defect in the selection process which would affect the constitutional and statutory rights of the party, we do not think that such a person would be precluded from challenging the selection process, for such a selection is non-est in the eye of law which would render the appointments, if any, a nullity. The said proposition has been reiterated by the Apex Court in Meeta Sahai v. State of Bihar, (2019) 20 SCC 17. The relevant portion of the said judgment reads thus:
"16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , observing as follows: (SCC p. 584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat W.A. No.628 of 2022 & con. cases 42 321 : (2008) 4 PLJR 93] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57] The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in W.A. No.628 of 2022 & con. cases 43 it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process". Reverting to the facts, as rightly found by the learned Single Judge, rights of persons with disabilities recognised under the Statutes, especially the 2016 Act are constitutional rights flowing from Articles 14, 15, 16 and 41 of the Constitution of India and what is sought to be enforced in the writ petition is the said constitutional rights of the petitioner. In such a case, according to us, the participation of the petitioner in the selection process is not of any consequence, for there is no estoppel against the provisions contained in the constitution and the laws. K.H.Siraj (supra) cited by the learned Senior Counsel who appeared for the appointees was a case where the question considered was as to whether the petitioner in the said case who has participated in the selection process and lost in the selection would be entitled to challenge the selection W.A. No.628 of 2022 & con. cases 44 process inasmuch as the provision made in the notification prescribing a minimum mark for the interview was not proper. As noted, prescription of minimum mark for a selection is purely a procedural one and not a substantive one as in the case on hand and the said decision cannot have, therefore, any application to the facts of the present case.
28. Another contention raised was that when the writ petition was instituted, there was no prayer for quashing the notification and when such a prayer was made only at the fag end of the hearing of the writ petition, this Court ought not have entertained the said prayer at that point of time. It is well settled that in this era of public interest litigations where social circumstances compel the court to be proactive in the matter of discharging its constitutional obligations, strict compliance of procedural rules as regards pleadings and prayers cannot always be insisted upon, especially when insistence of such procedural rules would deprive the citizens of their constitutional rights. We do not think that the fact that the application preferred by the petitioner for amendment of the W.A. No.628 of 2022 & con. cases 45 writ petition which was allowed by the learned Single Judge only at the time of hearing of the writ petition, is of any consequence.
29. One contention which was pressed seriously by the learned counsel for the fifth respondent was that there was absolutely no justification for the learned Single Judge in holding that the fifth respondent has acted deliberately to frustrate the provisions of the Statutes. Having regard to the totality of the facts and circumstances of the case, especially the fact that the Statutes were brought into force in recognition of the constitutional rights of persons with disabilities and having regard to the various initiatives made by the Apex Court to implement the provisions of the Statutes all these years, we are of the view that insofar as the fifth respondent cannot plead ignorance of the development of law in this field in all these years, the learned Single Judge cannot be found fault with for having arrived at the said conclusion.
30. Yet another contention pressed into service by the contesting respondents is that altogether 60 appointments W.A. No.628 of 2022 & con. cases 46 have been made pursuant to Ext.P8 notification and only six among them were arrayed as parties to the writ petition and therefore the writ petition ought to have been dismissed on that sole ground. We fail to understand as to how the appointees who are parties to the writ petition could raise such a contention. As noted, other than the appointees who are arrayed as parties to the writ petition, no one has preferred any appeal challenging the decision of the learned Single Judge. Be that as it may, merely for the reason that some among the appointees in a case of this nature were not arrayed as parties to the writ petition, the writ petition is not liable to be dismissed. As noted, it is a case where the notification was set at naught by the learned Single Judge not only as violative of the constitutional and statutory rights of the petitioner, but also on the ground that it defeats the various directions issued by the Apex Court. The rule audi alteram partem is not an absolute rule, and in a case where the Court finds that a fair hearing of the affected would not make any difference in the decision proposed, the decision cannot be held to be bad merely for the W.A. No.628 of 2022 & con. cases 47 reason that the affected person was not heard [See Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, (2015)8 SCC 519]. That apart, it is seen that the impugned decision is one taken by the learned Single Judge in public interest as well. The decision cited by the learned Senior Counsel for the appointees in support of their contention that all the appointees pursuant to Ext.P8 notification should have been arrayed as parties to the writ petition is the decision of the Apex Court in B.Ramanjini (supra). It is seen that it is clarified in the said decision also that the principle laid down therein may not have any application in a case involving public interest.
31. Another contention raised by the learned Senior Counsel appearing for some of the appointees is that the writ petition having been instituted after the selection process, it should be dismissed as belated. As noted, even going by the facts stated by the contesting respondents, the selection process ended only sometime during September 2020. The writ petition was instituted during February 2021 itself. We do not W.A. No.628 of 2022 & con. cases 48 think that there is any justification to dismiss a writ petition of this nature on the ground of delay and laches, especially when it is in the nature of seeking directions for implementation of the provisions of the Statutes as also the directions of the Apex Court.
32. One equitable relief sought by the appointees at the culmination of the hearing was that since the backlog upto date does not exceed the number of vacancies now available, the matter can be closed directing the fifth respondent to earmark the backlog among the vacancies in Ext.P15 notification and fill up the same without disturbing the appointments already made. We do not find any merit in this argument. When there is a conflict between law and equity, it is the law which has to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law [See B.Premanand v. Mohan Koikal (2011) 4 SCC 266]. In other words, the court cannot extend equity, if such extension of equity would amount to infraction of any provisions of the constitution and the laws. That apart, extension of the benefit W.A. No.628 of 2022 & con. cases 49 claimed by the appointees would infringe the right to equality guaranteed to the petitioner, for even if she is selected and appointed in the subsequent selection process, she will not be entitled to the same rights as would be enjoyed by the appointees by virtue of their earlier appointments to the service.
33. Coming to the appeal filed by the petitioner, having regard to the facts and circumstances of the case, we do not think that in a case of this nature, the petitioner is entitled to anything more than what is granted to her in terms of the impugned judgment.
The writ appeals, in the circumstances, are devoid of merits and are accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB/Mn W.A. No.628 of 2022 & con. cases 50 APPENDIX OF WA 628/2022 PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE G.O.(P) NO.18/2018/SJD DATED 18-11-2018 ISSUED BY THE GOVERNMENT OF KERALA.
Annexure 2 TRUE COPY OF THE GO (MS) NO.96/2021/HEDN DATED 15-2-2021 ISSUED BY THE 1ST RESPONDENT.
Annexure 3 TRUE COPY OF THE G.O.(MS) NO.242/2022/HEDN DATED 18-5-2022 ISSUED BY THE 1ST RESPONDENT W.A. No.628 of 2022 & con. cases 51 APPENDIX OF WA 646/2022 PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE INTERIM ORDER DATED 25-11-2021 IN W.P.(C) NO.3622/2021.
Annexure 2 TRUE COPY OF THE G.O.(P) NO.18/2018/SJD DATED 18-11-2018.
Annexure 3 TRUE COPY OF THE GO (MS) NO.96/2021/GEDN DATED 15-2-2021 ISSUED BY THE 2ND RESPONDENT GOVERNMENT Annexure 4 TRUE COPY OF THE G.O.(MS) NO.242/2022/HEDN DATED 18-5-2022 ISSUED BY THE 1ST RESPONDENT Annexure A5 A TRUE COPY OF THE ORDER IN SLP NO.6669/2021 DATED 05.07.2021 Annexure A6 A TRUE COPY OF THE JUDGMENT DATED 03.01.2022 IN WPC NO.29695 OF 2021 OF THIS HON'BLE COURT W.A. No.628 of 2022 & con. cases 52 APPENDIX OF WA 679/2022 PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE G.O.(P) NO.18/2018/SJD DATED 18/11/2018 ISSUED BY THE GOVERNMENT PROVIDING 4% RESERVATION AS PER THE PROVISIONS OF ACT 49 OF 2016 IN AIDED SCHOOLS AND AIDED COLLEGES.
Annexure A2 TRUE COPY OF THE ORDER G.O.(MS) NO.96/2021/HEDN DATED 15/02/2021 ISSUED BY THE GOVERNMENT ORDERING THAT ANNEXURE - A1 GOVERNMENT ORDER DATED 18/11/2018 WOULD BE APPLICABLE TO ALL APPOINTMENTS MADE IN PRIVATE, AIDED, ARTS AND SCIENCE COLLEGES IN THE STATE