Dejo Jacob vs State Of Kerala
2021 Latest Caselaw 16105 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
        TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
                        WP(C) NO. 20861 OF 2020
PETITIONER/S:

            DEJO JACOB
            CHARUVILAPUTHAN VEEDU, H NO.120, MUSEUM NAGAR,
            EDAPPALLY, ERNAKULAM-682024.

            BY ADV M.P.PRAKASH


RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY ITS PRINCIPAL SECRETARY, AGRICULTURE
            (DIARY) DEPARTMENT, SECRETARIAT,
            THIRUVANANATHAPURAM-695001.

    2       SECRETARY
            SOCIAL JUSTICE DEPARTMENT,
            SECRETARIAT,
            THIRUVANANATHAPURAM-695001.

    3       ERNAKULAM REGIONAL CO OPERATIVE MIL PRODUCERS UNIION LTD
            NO. E-150 (D), REPRESENTED BY ITS MANAGING DIRECTOR, HEAD
            OFFICE, EDAPPALLY, COCHIN-682024.

    4       RECRUITMENT COMMITTEE
            REPRESENTED BU ITS CONVENOR AND MANAGING DIRECTOR,
            KERALA CO-OPERATIVE MILK MARKETING FEDERATION, PATTOM,
            THIRUVANANTHAPURAM-695024.

    5       AKHIL RAJ.S,
            MANNATHU PUTHAN VEEDU, PALLIKANAKKU P.O.,KAYAMKULAM,
            ALAPPUZHA-690 537.

    6       RAJEEVIAL.R.,
            RAREEAM T C 18 556 3, PUNNAKKAMUGHAL, ARAMADA P.O.,
            THIRUVANANTHAPURAM-695 032.
 WP(C) NO. 20861 OF 2020
                             2




    7    BINU.G.,
         VARAVUVILA PUTHEN VEEDU, KULATHOOR UCHAKKADA, P.O.
         THIRUVANANTHAPURAM-695 506.
         ADDL.R5 TO R7 IMPLEADED AS PER ORDER DATED 19-01-
         2021 IN IA 1/21.

         SMT.LATHA ANAND
         SRI.V.M.KRISHNAKUMAR
         RINNY STEPHEN CHAMAPARAMPIL
         SRI.RENJITH THAMPAN (SR.)
         ASHA ELIZABETH MATHEW



OTHER PRESENT:

          GP SRI B HARISH KUMAR




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 27.07.2021, THE COURT ON 3.8.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 20861 OF 2020
                                      3



                                JUDGMENT

The petitioner is suffering from mild mental retardation

as per the certificate Ext.P1. Pursuant to the notification

dated 2.3.2016 Ext.P6, 25 (twenty five) posts of Technician

Grade II in different trades were notified, and applied.

However, do to various complaints, the aforementioned

notification was interdicted by the Director of Diary

Development. During the interregnum 1st respondent vide

Government order dated 21.11.2018 constituted a recruitment

committee for selection and appointment to various posts in

three Regional Milk Producers Unions, Ext.P7. Pursuant to the

order of this Court, the Government quashed Ext.P6

Notification and directed to conduct a new recruitment by the

Committee, Ext.P8. Pursuant to Ext.P8, a fresh notification

dated 25.10.2019, Ext.P9 was promulgated inviting the

application for filling up the posts.

2. W.P.(C) No.30323/2019 was filed, for modification of

the notification, ibid for the purpose of providing reservation, WP(C) NO. 20861 OF 2020

age and qualification. Pursuant to the aforementioned

notification, the petitioner submitted separate application to

the post of Technician (General) Grade II and Plant Attender

Grade III and in the present writ petition restricting the claim

for the post of Technician (General) Grade II, referred to

application Ext.P10.

3. Learned counsel appearing on behalf of the petitioner

submitted that as per Section 34 of the Rights of Persons with

Disabilities Act, 2016 (herein after called 'the 2016 Act', there

was no reservation for the said post, except, that reservation

for certain posts, as per the provisions of Section 80(5) of

Kerala Co-operative Societies Act (KCS Act) which was not in

existence at the time when the notification Ext.P6 was issued.

In fact, vide Ext.P7 the Government having deep and

pervasive control, constituted a Recruitment Committee

therefore, the writ under Article 12 of the constitution of India

would lie. The Government of Kerala vide order dated

27.4.2013, Ext.P12 while considering the case of one Sri.Dias

Davis, who also was a physically handicapped, noticed that WP(C) NO. 20861 OF 2020

Co-operative Society, while undergoing the process of

recruitment, ought to have applied the provisions of Section

34 of the 2016 Act or even Section 80(5) of the KCS Act where

at least 3% of the total post of employees of every society are

required to be reserved for physically handicapped candidates

ie., the disability of 40% or above. It is in that background, the

notification Ext.P9 was promulgated but again there was no

reservation for twenty two (22) posts. Reservation was kept

only for Plant Attender. The order Ext.P12 dated 27.4.2013

was challenged in this Court vide WP(C) No.13308/2013

which was upheld by this Court, resulted into writ appeal

reported in 2016(2) KLT 894 (Ernakulam Regional Co-

operative Milk Producers Union Ltd. v. State of Kerala)

whereby the judgment of the Single Bench was upheld.

Considering the aforementioned directions a resolution dated

14.12.2019 was passed whereby reservation was provided

only under one category ie., Plant Attender Grade III and not

for Technicians, as evidenced from letter dated 18.12.2019,

Ext.P18.

WP(C) NO. 20861 OF 2020

4. In order to buttress the argument, learned counsel for

the petitioner submitted that the objection of the respondents

of non maintainability of the writ petition on account of the

alternative/efficacious remedy would not have any substance

as the petitioner as per the provisions of Section 69(2) (d) of

the Kerala Co-operative Societies Act is not the employee of

any of the Society. Division Bench of this Court by noticing all

the provisions ie., Section 80(5) of the KCS Act and 2016 Act,

found that the vacancies earmarked for physically

handicapped under PWD Act were to be reckoned from the

date of commencement of the 2016 Act to the extent of three

percent (3%).

5. On the other hand, learned counsel appearing on

behalf of the respondent No.3 submitted that the writ petition

would not lie as Co-operative Societies would not fall within

the definition of Section Section 2 (k) of the 2016 Act as it

applicable to only Corpoation and Companies. Co-operative

Societies are governed by Co-operative Societies Act and in

this case Section 80(5) would be applicable, where only 3% WP(C) NO. 20861 OF 2020

reservation is prescribed for physically disabled persons. The

petitioner is a mentally retarded person and would not thus

fall within the 40% of physically handicapped. The duties of

the Technician involved repairs and maintenance of

mechanical equipment's of plant, office and machineries,

maintenance of pneumatic and mechanical filling machines,

maintenance of conveyors, welding works, custodian of tools

and spares for the repairs and maintenance with eight hours

shift duty round the clock. Since it is a skilled post could not

be identified for reservation. In this view of the matter, the

Director Board of the third respondent decided to limit the

reservation to non-technical post ie., Plant Attender Gr.III.

Against the notified 50 (fifty) vacancies for the post of Plant

Attender Gr.III, candidates who secured 50% marks in the

written test qualified for the skill assessment test and there

were only three(3) candidates who applied in the category of

physically challenged and qualified for skill assessment tests

as they secured more than 50 percent marks in the written

test ,i.e.cut off marks. Out of the 3 candidates only two(2) WP(C) NO. 20861 OF 2020

candidates appeared for the skill assessment test and both

ranked as (Rank No.48 and Rank No.49) and selected as Plant

Attenders Gr.III. There was no interview for the lower posts

including the post of Technician Gr.II for which the petitioner

had submitted an application.

6. The reservation is required to be maintained for total

post and not for each category. There is no such direction in

the Government order or circulars of the Registrar to treat the

post of Technician reserved for physically handicapped

persons. As regards the certificate to which the petitioner

banked upon, through an interim application, Ext.P14 of 2013,

it was made available only after the interview thus cannot be

looked into at this stage, as Ext.P1 had a validity of three

years, which expired in 2016 whereas the date of application

was of October 2019. In support of the aforementioned

contentions, the judgment reported in 2013 KHC 783 (Saji

K.A v. Sree Sankaracharya University of Sanskrit,

Kalady and Others was cited whereby the action of the

appointing authority fixing of cut off marks for the written test WP(C) NO. 20861 OF 2020

as well as interview was held to be met unconstitutional or

illegal.

7. W.P.(C) No.9981 of 2010 titled as Association of

Milma Officers' Ksheera Bhavan v. State of Kerala and

others decided on 17.12.2014 wherein, while dealing with the

objection of maintainability of the writ petition under Article

226 of the constitution of India in a matter pertaining to Co-

operative Society was held to be maintainable, if the action is

violative of statutory provisions. None of the statutory

provisions were violated and therefore the writ petition would

not lie. Ext.P12 cannot come to the rescue of the petitioner,

for, at the relevant point of time for the purpose of making

appointments in Co-operative Society as there was no vacancy

for physically handicapped persons, in view of the provisions

of Section 80(5) of the KCS Act. It was followed as evident

from Exts.P17 and P18 dated 14.12.2019 and 18.12.2019. The

judgment of Single Bench of this Court would not be

applicable as it was a stage where no steps were taken by the

organization for designating any specified post for physically WP(C) NO. 20861 OF 2020

disable persons. The appointments were made prior to the

filing of the writ petition whereas in the instant case the

appointment was in favour of 5 to 7.

8. Learned counsel appearing on behalf of respondents 5

to 7 submitted that writ petition has been filed after the

selection process is over. There is no allegation against the

recruitment authority or the fact that the private respondents

are not qualified. As per Ext.P2, it was the Managing Director

of the Society, who was directed to identify the categories

which has been done. There was no such directions to keep

reservation for all categories in the stream of Technician. The

post of technician is more arduous than that of Plant Attender.

9. In rebuttal, learned counsel for the petitioner

submitted that there is a categoric averment in the reply

affidavit that the first respondent ie., the Government has a

deep and pervasive control over the Society by constituting

the recruitment committee, which fact is evident from Ext.P7.

Thus writ petition would be maintainable. Ext.P5 are series of

certificates issued by the various authorities where the WP(C) NO. 20861 OF 2020

petitioner had discharged the technical duties despite

handicapness.

10. I have heard the learned counsel for the parties and

appraised the paper book. It would be expedient to extract

Section 34 of 2016 Act and Section 80(5) of the Kerala Co-

operative Societies Act. The same reads as under:

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 WP(C) NO. 20861 OF 2020

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. 17 (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. Section 80.Officers, etc., of co-operative societies.- xxxxx [(5)Notwithstanding anything contained in sub-section (1) or (2) three percent of the total posts of employees of every society shall be reserved for physically handicapped persons having disability of forty percent or above, as certified by the medical board and the procedure of appointment shall be such as may be prescribed: Provided that in societies where there are more than ten and less than thirty three employees including cadre and sanctioned posts, there shall be reserved a minimum of one employee belonging to physically handicapped persons.

11. The foundation of the present writ petition is based

upon the orders Exts.P7 and P12 whereby the Government

appointed a recruitment committee consisting of Secretory to

Government, in charge of Dairy Development Department,

Chairman of Kerala Co-operative Milk Marketing Federation,

Registrar of Dairy Co-operative Societies, and Managing

Director of the respective Regional Co-operative Milk WP(C) NO. 20861 OF 2020

producers Union, Committee member etc.. Section 69(2)(d) of

the KCS Act, reads as follows:

69.Disputes to be decided by Co-operative Arbitration Court and Registrar.- xxxxxx 2(d) any dispute arising in connection with employment of officers and servants of the different classes of societies specified in sub-section (1) of section 80, including their promotion and inter se seniority.

12. On perusal of the aforementioned, I am of the view

that the provisions of Section 69(2)(d) would not be applicable

as the petitioner is not the employee of the Society and

therefore the objection qua maintainability of the writ petition

in the absence of availment of alternative remedy is over

ruled.

13. Ext.P12 is dated 27.4.2013 whereby the directions

were issued considering the fact that while giving employment

on Board there was no adherence to the provisions of Section

80(5) of Kerala Co-operative Societies Act as well as of

Section 34 of the 2016 Act. It is in that background, the

resolution dated 14.12.2019 was passed by the Board of

Director for providing reservation to the physically

handicapped in the process of filling posts of various WP(C) NO. 20861 OF 2020

categories and vide Ext.P18 reservation of physically

handicapped persons was provided against the post of Plant

Attender Gr.III. Contention of the petitioner that the

petitioner had discharged the technical duties as per the

series of certificate Ext.P5, in my view would not help him to

seek the appointment under the category of reservation for

Technician Grade -II. The role of the employer in decision

making while assessing the nature of the duties cannot be

interdicted since it involves physical work. The petitioner is

not a physically handicapped but a mentally retarded may not

be able to do the same. This Court though not an expert, still

can form a prima facie view, that petitioner would not be able

to discharge the technical duties of technician as culled out in

the affidavit ie., repairs and maintenance of mechanical

equipments of the plant, office and machineries, maintenance

of pneumatic and mechanical filling machines, maintenance of

conveyors, welding works, custodian of tools and spares for

the repairs and maintenance with eight hours shift duty round

the clock. The judgment of this Court relied upon was in the WP(C) NO. 20861 OF 2020

context of absence of any reservation for physically

handicapped persons which has been taken care of vide

Ext.P18. As per Section 80(5) of KCS Act, the reservation of

3% has to be kept while employing more than 10 (ten)

persons. There is no statutory violation of the Government

instructions enabling the petitioner to bring the case within

the realm of judicial review under Article 226 of the

Constitution of India.

I do not find any merit in the writ petition and

accordingly dismissed.

Sd/-

sab                                       AMIT RAWAL

                                             JUDGE
 WP(C) NO. 20861 OF 2020


                      APPENDIX OF WP(C) 20861/2020

PETITIONER EXHIBITS

EXHIBIT P1              TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY
                        THE DISTRICT MEDICAL BOARD.

EXHIBIT P2              TRUE COPY OF THE IDENTITY CARD ISSUED BY THE
                        SOCIAL JUSTICE DEPARTMENT.

EXHIBIT P3              TRUE COPIES OF THE NATIONAL TRADE CERTIFICATE
                        DATED 09.10.2017.

EXHIBIT P4              TRUE COPY OF THE CERTIFICATE DT 10.07.2018 ISSUED
                        BY INDIAN RARE EARTHS LTD.

EXHIBIT P5 (1)          TRUE COPY OF THE CERTIFICATE DATED 22.12.2018

ISSUED BY THE SR. ENVIRONMENTAL ENGINEER KERALA PC BOARD.

EXHIBIT P5(2) TRUE COPY OF THE CERTIFICATE DATED 25.03.2017 ISSUED BY TELK.

EXHIBIT P 5(3) TRUE COPY OF THE CERTIFICATE DATED10.07.2017 ISSUED BY TCC LTD.

EXHIBIT P5 (4) TRUE COPY OF THE CERTIFICATE DATED 09.02.2019 ISSUED BY TCC LTD.

EXHIBIT P5(5) TRUE COPY OF THE CERTIFICATE DATED 09.02.2019 ISSUED BY TCC LTD.

EXHIBIT P5(6) TRUE COPY OF THE CERTIFICATE DATED 10.02.20120 ISSUED BY KAMCO.

EXHIBIT P6 TRUE COPY OF THE NOTIFICATION DT. 02.03.2016 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE G.O DATED 21.11.2018.

EXHIBIT P8 TRUE COPY OF THE G.O DATED 24.07.2019.

EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 25.10.2019 OF THE 4TH RESPONDENT.

WP(C) NO. 20861 OF 2020

EXHIBIT P10 TRUE COPY OF THE APPLICATION OF THE PETITIONER.

EXHIBIT P11 TRUE COPY OF THE HALL TICKET ISSUED TO THE PETITIONER.

EXHIBIT P 12 TRUE COPY OF THE G.O DATED 27.04.2013.

EXHIBIT P13 TRUE COPIES OF THE JUDGMENT DATED 10.12.2015 IN W.P (C) NO.13308/2013 OF THIS HON'BLE COURT.

EXHIBIT P14 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE ISSUING MEDICAL AUTHORITY, GOVERNEMENT OF INDIA

EXHIBIT P15 TRUE COPY OF THE UNIQUE DISABILITY ID ISSUED TO THE PETITIONER BY THE GOVERNMENT OF INDIA

EXHIBIT P16 TRUE COPY OF THE RANK LIST DATED 7.9.2020 PUBLISHED BY THE 3RD RESPONDENT

EXHIBIT P17 TRUE COPY OF THE RESOLUTION DATED 14.12.2019 OF THE BOARD OF DIRECTORS OF THE 3RD RESPONDENT

EXHIBIT P18 TRUE COPY OF THE LETTER DATED 18.12.2019 OF THE 3RD RESPONDENT

RESPONDENT EXHIBITS

EXHIBIT R4(A) TRUE COPY OF THE JUDGMENT IN WPC NO 15529/2020 DATED 17.9.2020

EXHIBIT R4(B) TRUE COPY OF THE RANK LIST PUBLISHED BY THE 3RD RESPONDENT DATED 7.9.2020

EXHIBIT R4(C) TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE CONVENOR OF 4TH RESPONDENT RECRUITMENT COMMITTEE DATED 18.12.2019