Kerala High Court
State Of Kerala vs State Of Kerala on 16 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942
OP(KAT).No.449 OF 2020
AGAINST THE ORDER IN OA (EKM)NO.144/2017 DATED 29.08.2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 4 IN O.A.:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF COMMERCIAL
TAXES, SECRETARIAT, THIRUVANANTHAPURAM-695 001
3 THE SECRETARY TO GOVERNMENT, DEPARTMENT OF SOCIAL
JUSTICE, SECRETARIAT, THIRUVANANTHAPURAM-695 001
4 STATE COMMISSIONER FOR PERSONS AND DISABILITIES,
THIRUVANANTHAPURAM-695 012
BY SRI.B.UNNIKRISHNA KAIMAL, GOVT.PLEADER
RESPONDENTS/APPLICANT & RESPONDENTS 5 & 6 IN O.A.:
1 JACOB M.V., S/O. VARGHESE, MECHERY HOUSE, PALAPPILLY,
KOOVAKKATTUKUNNU P.O, THRISSUR-680 311
2 KERALA PUBLIC SERVICE COMMISSION,
REPRESENTED BY SECRETARY, PATTOM,
THIRUVANANTHAPURAM-695 004
3 THE SECRETARY,
KERALA PUBLIC SERVICE COMMISSION, PATTOM,
THIRUVANANTHAPURAM- 695 004.
R1 BY ADV. SRI.C.A.CHACKO
R2-3 BY ADV. SRI.P.C.SASIDHARAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD
ON 03-02-2021, THE COURT ON 16-02-2021 DELIVERED THE FOLLOWING:
O. P. (KAT) No. 449/2020
2
ALEXANDER THOMAS & T.R.RAVI, JJ.
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O. P. (KAT) No. 449 of 2020
[Arising out of the impugned final order dated 29.8.2019 in
O.A. (Ekm) No. 144 of 2017 on the file of the KAT, Ernakulam Bench]
---------------------------------------------------------------------------------
Dated this the 16th day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayer in the afore captioned Original Petition filed under
Articles 226 & 227 of the Constitution of India are as follows: {See page 11
of the paper book of this OP(KAT)}
"..........set aside Exhibit P8 order in OA(EKM) No.144/17 on the files of the
Kerala Administrative Tribunal, Additional Bench, Ernakulam by allowing this
original petition."
2. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government
Pleader appearing for the petitioners in the O.P./R-1 to R-4 in the O.A.
(The State of Kerala and 3 others), Sri.C.A.Chacko, learned counsel
appearing for R-1 in the O.P./sole applicant in the O.A. before the Tribunal
and Sri.P.C.Sasidharan, learned Standing Counsel for the Kerala Public
Service Commission appearing for R-2 & R-3 herein/R-5 & R-6 in the O.A.
before the Tribunal.
O. P. (KAT) No. 449/2020
3. The 1st respondent herein had filed Ext.P-1 O.A. (Ekm) No.
144/2017 before the Kerala Administrative Tribunal, Ernakulam Bench,
with the following prayers: {See page 27 of the paper book of this OP(KAT)}
"
a) set aside Annexure A13 GO(Rt)No.939/2016/TAXES dated
3/12/2016 after calling for the records leading to its issuance;
b) declare that non identification of back log vacancies in the post of
Commercial Tax Officer in Commercial Taxes Department from the
year 2004 onwards is illegal and against the spirit and object of the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995;
c) direct the respondents to effect appointment to the post of
Commercial Tax Officer in Commercial Taxes Department from
Annexure A2 rank list in the back log vacancies with effect from
2004 in the light of judgment of the Hon'ble Supreme Court reported
in (2010) 7 SCC 626; and
d) grant such other reliefs as this Hon'ble Tribunal deems fit and
proper in the circumstances of the case including costs of this
Original Application."
4. The original applicant is a differently abled person inasmuch
as, he suffers from locomotor disability to the tune of 40% as certified in
Anx.A-1 disability certificate issued by the competent Medical Board
concerned. The applicant is fully qualified and eligible to be considered for
selection and appointment to the post of Sales Tax Officer (STO) [later re-
designated as Commercial Tax Officer (CTO)] in the Sales Tax
Department/Commercial Taxes Department under the Government of
Kerala. Pursuant to the selection notification issued by the respondent
O. P. (KAT) No. 449/2020
Kerala Public Service Commission (PSC) for Category No.2/2006, the
applicant had submitted application for consideration, selection and
appointment to the post of STO in the Commercial Taxes Department, and
after the due process of selection the applicant has been included as rank
No.149 in Anx.A-2 rank list finalized by the PSC with effect from
31.7.2007. It is common ground that the said rank list has expired on
30.1.2012. It is also common ground that the competent authority of the
State Government had not taken any steps to take appropriate decision as
to whether the post of STO/CTO is suitable for appointment of physically
disabled candidates in the 3% quota set apart in terms of the provisions
contained in Section 32 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995,
(Central Act 1 of 1996 which came into force on 7.2.1996) for the 3% quota
set apart for physically disabled candidates as mandated in Section 33 of
said Central Act at any point of time prior to the finalization of Anx.A-2
rank list which came into force on 31.7.2007. Being aggrieved thereby, the
applicant had approached this Court by filing a Writ Petition (Civil) as
WP(C) No. 24046/2009 which was later transferred to the Kerala
Administrative Tribunal (KAT), Thiruvananthapuram Bench, after the
O. P. (KAT) No. 449/2020
establishment of said Tribunal and thereupon the said case was
renumbered as T.A. No. 5570/2012 on the file the KAT,
Thiruvananthapuram Bench.
5. After hearing both sides the Tribunal has rendered Anx.A-8
final order dated 22.5.2013 in the said T.A. No. 5570/2012 (arising out of
WP(C) No. 24046/2009) directing that the competent authority of the
State Government will immediately take steps to consider the pleas made
by the applicant in the representation referred to Ext.P-7 therein in the
matter of taking an appropriate decision as to whether the post of
STO/CTO is to be treated as suitable in terms of Section 32 of abovesaid
Act for appointment of the physically disabled candidates in the 3% quota
set apart in Section 33 thereof, and the decision was directed to be taken
within 3 months, and also on the plea of the applicant for taking action for
making appointments in the backlog vacancies in the 3% quota.
6. The plea made by the applicant as per Ext.P-7 therein was
rejected by the competent authority of the State Government in the Taxes
Department as per Anx.A-9 G.O.(Rt.) No.12/2014/Taxes dated 4.1.2014.
The said rejection order as per Anx.A-9 herein was challenged by the
applicant by filing original application as O.A. No. 2190/2014 before the
O. P. (KAT) No. 449/2020
KAT, Thiruvananthapuram Bench. The Tribunal after hearing both sides
has rendered Anx.A-11 final order dated 18.12.2015 in O.A. No. 2190/2014.
In para 5 of Anx.A-11 order, the Tribunal has found that as to the case of
the Government, the post of CTO was identified as suitable in terms of
Section 32 of the Central Act for appointment of physically disabled
candidates in the 3% quota set apart under Section 33 of said Act, as per
the G.O.(P) No.43/2009/SWD dated 13.10.2009 issued by the competent
authority of the State Government in the Social Welfare Department,
which has been produced as Anx.A-5 in Anx.A-11 O.A. No. 2190/2014.
Further, the Tribunal has also noted in para 5 of Anx.A-11 order that
according to the Government, yet another Government Order was issued
by them on 24.1.2011 wherein it was directed to conduct special
recruitment for 3% backlog vacancies and various posts have been
identified, etc. However, the Tribunal has also found in para 5 of Anx.A-11
order that, inspite of all this the post of CTO/STO in the Sales Tax
Department/Commercial Taxes Department under the State Government
has not been included for appointment in the backlog vacancies of
different departments which arose during the period from 1.1.2004 to
31.12.2007 as per the admitted case of Government authorities.
O. P. (KAT) No. 449/2020
7. In para 10 of Anx.A-11 order the Tribunal has also noted the
submission of the Government that they have issued G.O.(P)
No.61/12/SWD dated 17.10.2012 ordering that the post of CTO is included
in the list of categories of posts under Class I and II which are identified as
suitable for appointment of physically disabled candidates. Further, in
para 6 of the statement filed by the Government in O.A. No. 2190/2014, it
is stated by them that in compliance with Government Orders as per G.O.
(P) No.43/2009/SWD dated 13.10.2009 and G.O.(P) No.40/2011/SWD
dated 26.8.2011, the Commissioner of Commercial Taxes has requested the
Secretary, Kerala PSC to advise candidates as against 3 vacancies of CTO
from the existing rank list, meaning thereby Anx.A-2 rank list dated
31.7.2007 which was current up to 30.1.2012, in the category of physically
challenged persons as per the norms of the existing Government Orders,
and further that no backlog vacancies of CTO were identified by the Social
Welfare Department for special recruitment vide G.O.(P) No.7/2011/SWD
dated 24.7.2011, etc.
8. Taking note of said submissions of the Government, the
Tribunal has passed Anx.A-11 final order dated 18.12.2015 in O.A. No.
2190/2014 finding that the Public Service Commission cannot be
O. P. (KAT) No. 449/2020
faulted for not applying reservation in the physically disabled quota
inasmuch as, the post was admittedly found suitable by the State
Government in the PH quota only as per the Government Order issued on
13.10.2009 (Anx.A-5 in Anx.A-11) and later by G.O.(P) No.61/12/SWD
dated 17.10.2012, and even the backlog vacancies have admittedly not been
reported by the competent authority of State Government/department to
the Kerala PSC, etc. Hence, the Tribunal has found in the last
paragraph of Anx.A-11 order that since the Public Service Commission
cannot be found fault with for not applying reservation in the 3% quota
for physically disabled candidates in respect of Anx.A-2 rank list, and as
the fault is on account of the long delay on the part of the State
Government authority in identifying the post of CTO/STO suitable for PH
quota appointments by issuing orders in the years 2009 and 2011,
which is after the coming into force of Anx.A-2 rank list, this is a fit case
where the Government should consider the case of the applicant for
appointment by resort to the discretionary powers conferred to
them statutorily under Rule 39 of Part II KS & SSR.
9. It will be pertinent to refer to the directions issued by the
Tribunal in para 10 of Anx.A-11 final order dated 18.12.2015 in O.A.
O. P. (KAT) No. 449/2020
No.2190/2014, which reads as follows: {See page 84 of the paper book of this
OP(KAT)}
"In the light of the above factual position, the PSC cannot be faulted for
not applying the Government Order, Annexure-A5 in respect of the present
selection. As further directions have to be issued by the Government, the
applicant is permitted to move the Government by invoking Rule 39 of Part II KS
& SSR, by filing a proper representation. If such a representation is filed within
six weeks from today, the Government will pass orders within a period of three
months thereafter. The applicant will be heard also."
10. Pursuant to said directions, the Government has purportedly
considered the request of the applicant and has issued Anx.A-13 G.O.(Rt.)
No. 939/2016/Taxes dated 3.12.2016 holding that the rank list has also
expired by then on 30.1.2012 and that the Government has taken
necessary steps for even requesting the PSC to advice 3 physically
disabled candidates as against 3 vacancies (as referred to in para 6 of the
statement filed by them in Anx.A-11 O.A. No.2190/2014) and further that
it has been found that there are no backlog vacancies in respect of
handicapped persons in the category of CTO for the period from 1.1.2004
to 31.12.2007, and if any backlog vacancies arise after 31.12.2007 it
is to be filled up by special recruitment especially from PH candidates
through the PSC etc. Further it is stated in para 6 of Anx.A-13 order that
Anx.A-2 rank list came into force on 31.7.2007 and the government
O. P. (KAT) No. 449/2020
order identifying the post of CTO/STO as suitable in the PH quota was
issued only in the year 2009 and the same has no retrospective effect etc
and that the case of the applicant for appointment by resort to the
discretionary powers conferred under Rule 39 of Part II KS & SSR deserves
only to be rejected etc.
11. Being aggrieved by the rejection order at Anx.A-13, the
applicant was again constrained to approach the Tribunal by filing O.A.
(Ekm) No. 144/2017. The Tribunal after hearing both sides has passed the
impugned Ext.P-8 final order dated 29.8.2019 in said O.A. by holding
categorically that the issuance of Anx.A-13 order dated 3.12.2016 cannot
be said to be in proper and lawful compliance of the directions issued by
the Tribunal in the previous round of litigation as per Anx.A-11 dated
18.12.2015 in O.A. No. 2190/2014 and hence the rejection order as per
Anx.A-13 herein was quashed and the matter was remitted to be
reconsidered and orders were passed afresh in strict compliance of the
directions issued by the Tribunal as per Anx.A-11 and in the light of the
observations and findings made by the Tribunal in the impugned Ext.P-8
order, etc.
12. The Tribunal has found in Ext.P-8 that one of the main reasons
O. P. (KAT) No. 449/2020
given by the Government in the rejection order as per Anx.A-3 is that, the
identification of the post as suitable for appointment in PH quota as per
G.O.(P) No.43/2009/SWD dated 13.10.2009 (produced as Anx.A-5 in
Anx.A-11 O.A.) is not retrospective and that it can have only prospective
effect and that backlog vacancies which arises after 2007 (date of coming
into force of Anx.A-2 rank list) can be utilized only by making appointment
by special recruitment through PSC and not by appointing any candidate
included in Anx.A-2 rank list, etc. The Tribunal found that the said finding
of the Government about lack of retrospectivity to the identification of the
post as suitable for PH appointment in terms of the G.O. issued in the year
2009, is absolutely illegal and improper. The Tribunal has placed reliance
on the decision of the Apex Court in the celebrated case in Govt. of
India & Another v. Ravi Prakash Gupta & another [(2010) 7
SCC 626] wherein the Apex Court has dealt with similar contention that
the post in dispute was identified for the first time as suitable for
appointment of physically disabled candidates only in the year 2005 and
that reservation can be given effect to only thereafter from the year 2006
and therefore there is no backlog vacancies. The Apex Court, while
interpreting the scope and ambit of Section 32 to Section 36 of the
O. P. (KAT) No. 449/2020
abovesaid Central Act 1 of 1996, held categorically and unequivocally that
when a post was identified as eligible for appointment of disabled
candidates in terms of Section 32 of the Act for appointment in the 3%
quota set apart as per Section 33, then the identification of the post as
suitable for PH quota appointment will revert back from the date of
coming into force of Central Act 1 of 1996, viz, 7.2.1996. The argument
therein raised by the Union of India in that case that the identification of
post was undertaken after the year 2005 and about lack of retrospectivity
was completed repelled by the Apex Court. It may be pertinent to refer to
para 25 of the decision of the Apex Court in Ravi Prakash Gupta's
case supra [(2010) 7 SCC 626], which reads as follows:
"The submission made on behalf of the Union of India regarding the
implementation of the provisions of Section 33 of the Disabilities Act, 1995, only
after identification of posts suitable for such appointment, under Section 32
thereof, runs counter to the legislative intent with which the Act was enacted. To
accept such a submission would amount to accepting a situation where the
provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely
by bureaucratic inaction. Such a stand taken by the petitioners before the High
Court was rightly rejected. Accordingly, the submission made on behalf of the
Union of India that identification of Grade 'A' and 'B' posts in the I.A.S. was
undertaken after the year 2005 is not of much substance."
13. Hence the Tribunal held that the issuance of the impugned
rejection order as per Anx.A-13 herein cannot be said to be in lawful and
proper compliance of the directions already rendered by the Tribunal as
O. P. (KAT) No. 449/2020
per Anx.A-11 order, and that main reasonings in Anx.A-13 order about lack
of retrospectivity to the Government Order issued in the year 2009 and
thereafter for identification of the post of STO/CTO as suitable in terms of
Section 32 of the Act for appointment in the 3% PH quota in terms of
Section 33 thereof, is absolutely illegal and ultra vires. Further, it is by
now well established that a bounden statutory obligation is cast upon the
appropriate authorities concerned to take appropriate decision as to
whether the post in question is suitable in terms of Section 32 of the Act
for appointment in the PH quota in terms of Section 33 of the Act, and the
said statutory obligation would arise immediately after coming into force
of Central Act 1 of 1996 from 7.2.1996. Merely because there has been
bureaucratic apathy and delay on the part of the governmental authorities
in taking a decision as to whether the post is suitable or not, is no ground
to say that once the post is held to be suitable subsequently, then there is
no question of retrospectivity and that the vacancies only after the
identification of post alone is to be taken into account for PH quota
appointments, etc. It is by now well established, more so particularly in
view of the categorical declaration of law made by the Apex Court in Ravi
Prakash's case supra that, once the identification of post is suitable in
O. P. (KAT) No. 449/2020
terms of Section 32 is rendered by the appropriate government, then it will
revert back to the date of coming into force of the Act, viz 7.2.1996 and
that backlog vacancies should also be counted and reckoned on that basis
and not on the legally specious premise that there is no retrospectivity to
the subsequent decision taken for identification of post as suitable in the
PH quota appointment.
14. In that view of the matter the Tribunal has categorically held
that the impugned decision at Anx.A-3 cannot stand even for a moment in
the eye of law and would deserve interdiction, and accordingly the
Tribunal has quashed the impugned order at Anx.A-13 and has remitted
the matter to the competent authority of the State Government to
reconsider the case of the applicant in terms of Anx.A-11 order and in the
light of findings and orders made by the Tribunal in Ext.P-8 and also on
the issue in respect of the matter regarding the claim of the applicant for
appointment as CTO/STO by resort to discretionary powers statutorily
conferred on the Government under Rule 39 of Part II KS & SSR. It is this
order at Ext.P-8 that is under challenge in this O.A.
15. We have heard the parties at length on occasions more than
one. We have also heard in detail the learned Standing Counsel for the
O. P. (KAT) No. 449/2020
Kerala Public Service Commission as well. From the submission of parties,
the following factual aspects are beyond any dispute:
1. The rank list in quetion as per Anx.A-2 was finalized with effect
from 31.7.2007 and it was ultimately cancelled with effect from
30.1.2012.
2. At no point of time, prior to the finalization of Anx.A-2 rank
list dated 31.7.2007, the competent authority of the State
Government has not taken any decision in the matter of
identification of the post of CTO/STO as suitable in terms of
Section 32 of the Act for PH quota appointment set apart in
terms of Section 33 of the Act.
3. It is also common ground that, for the first time the competent
authority of the State Government has taken an appropriate
decision so as to identify the post of STO/CTO as suitable in
terms of Section 32 of Central Act for appoitment in the 3% PH
quota set apart in terms of Section 33 thereof, only as per G.O.
(P) No. 43/2009/SWD dated 13.10.2009 (produced as Anx.A-5
in Anx.A-11 O.A. No.2190/2014).
4. A reading of para 10 of Anx.A-11 order would also indicate that
the Government has also a case that, later they have again
issued G.O.(P) No. 61/2012/SWD dated 17.10.2012 ordering
that the post of CTO is included in the list of catogories of post
under Class I and Class II, which are identified as suitable for
O. P. (KAT) No. 449/2020
appointment of physically disabled candidates.
16. Hence it is clear like the daylight that the deciison was taken by
the competent authority of the State Government identifying the post of
CTO/STO as suitable in terms of Section 32 of the Act for appointment in
the 3% PH quota set apart as per Section 33 thereof only on 13.10.2009. In
other words, there is not dispute that the appropriate decision to identify
the post as suitable, was never taken by the Government at any point of
time prior to the finalization of Anx.A-2 rank list dated 31.7.2007. It is by
now well settled that the appropriate Government is under the bounden
statutory obligation by virtue of the mandate contained in Section 32 to
Section 36 of the Central Act 1 of 1996, to enforce the provisions of said Act
immediately after coming into force of said Act on 7.2.1996, and that so the
competent authority of the State Government was under the statutory and
mandatory obligation to have taken an appropriate decision as to whether
the post in question (CTO/STO) is suitable or not in terms of Section 32 of
the Act for appointment in the 3% PH quota as per Section 33 thereof,
immediately after coming into force of the Central Act on 7.2.1996, at any
rate such a decision should have been taken by the competent authority of
O. P. (KAT) No. 449/2020
the State Government atleast before the finalization of Anx.A-2 rank list
dated 31.7.2007. On the other hand, for the first time, the decision of the
Government was rendered only on 13.10.2009, which is after the coming
into force of Anx.A-2 rank list dated 31.7.2007. Hence, if the said decision
had been taken by the competent authority of the State Government at any
time prior to the finalization of Anx.A-2 rank list dated 31.7.2007, then the
Public Service Commission would have easily taken steps for preparing a
special list of PH candidates so as to effect horizontal reservation in the 3%
PH quota from amongst the candidates included in Anx.A-2 rank list.
17. Since the said decision was not taken prior to the finalization
of Anx.A-2 rank list dated 31.7.2007, the Public Service Commission had
no other go, but to prepare a general recruitment rank list in the open
competition and backward classes turns which is in the vertical reservation
basis, and no provision could be made lawfully by the Public Service
Commission for effectuating horizontal reservation in terms of Section 33
of Central Act 1 of 1996. This is only on account of the fault of the
competent authorities of the State Government/Department concerned.
Further, it is also evident that even backlog vacancies from 2007 have not
been reckoned by the State Government in this case at any point of time
O. P. (KAT) No. 449/2020
during the currency of Anx.A-2 rank list, which was current up to
30.1.2012. Be that as it may, it is the admitted case of the Government as
can be seen from a reading of para 6 of the statement filed by the
Government in Anx.A-11 O.A. No.2190/2014, which is extracted in para 10
on pages 4 & 5 of Anx.A-11 final order of the Tribunal in O.A.
No.2190/2014, that the Commissioner of Commercial Taxes had sent a
requisition to the Secretary, Kerala Public Service Commission, that 3
vacancies have been set apart for appointment of PH candidates ad that 3
PH candidates included in Anx.A-2 rank list dated 31.7.2007 be adivsed as
against those 3 vacancies, etc.
18. After hearing both sides it appears that the competent
authority of the Public Service Commission could not accede to the said
request of the governmental authorities concerned, inasmuch as the list
was prepared only for vertical reservation in open competition and
backward class turns and advise of candidates was to be made solely on the
basis of rules of reservation and rotation enshrined in Rules 14 to 17 of KS
& SSR Part II, which is solely withtin in the domain of vertical reservation
and not horizontal reservation. After hearing both sides it appears that
altogether 7 candidates included in Anx.A-2 rank list are certified to be
O. P. (KAT) No. 449/2020
physically disabled candidates, and applicant herein is the 4 th candidate
among the 7 candidates. It is also common ground that, the two
candidates who suffer from physical disability and were included in
Anx.A-2 rank list were advised in the regular OC-BC turns as the case may
be, on account of their inclusion in the general recruitment rank list as pr
Anx.A-2. There does not appear to be any dispute that the said advise of
two such candidates in Anx.A-2 rank list, who were otherwise suffering
from physical disability, were only on account of their ranking and turn in
the open competition and the backward class turn, as the case may be, and
not on the basis of horizontal reservation meant to be effectuted through
the 3% quota set apart as per Section 33 of the Central Act.
19. Sri.C.A.Chacko, learned counsel appearing for the original
applicant would also point out that indisputably one among such
candidate, who is suffering from physical disability and advised for
appointment, had not joined for duty in spite of the order of appointment
issued to him after the advise made by the PSC and therefore that resulted
in a Non Joining Duty (NJD) vacancy.
20. The correctness or otherwise of said factual submission now
made by the learned counsel appearing for the original applicant regarding
O. P. (KAT) No. 449/2020
said NJD vacancy need not be decided by this Court. We will assume for a
moment that 2 candidates in Anx.A-2 rank list, who are otherwise
suffering from physical disability, were advised for appointment from
amongst the candidates included in Anx.A-2 rank list during the currency
of rank list and that too in accordance with the rules of merit and
reservation and rotation enshrined in Rules 14 to 17 of KS & SSR Part II.
21. Therefore, going by the admitted factual matrix in this case, if
the Government had fulfilled its solemn statutory responsibility cast on
them by the Parliament by virtue of Sections 32 to 36 of the Act so as to
render a decision to identify the post of CTO/STO at any time prior to the
finalization of Anx.A-2 rank list, then the Public Service Commission
would have been fully equipped to prepare a special list to be effectuated
for horizontal reservation in terms of Section 33 of the Act. It is also
common ground that, only the category of locomotor disabled candidates
are identified as suitable for appointment to the post of CTO/STO, and the
other two categories of visually impaired and hearing imparied candidates
are not identified in the suitability criteria for appointment in the 3%
quota. In other words, all the vacancies set apart in the PH quota, should
have been utilized only by advising and appointing PH candidates who
O. P. (KAT) No. 449/2020
suffer from locomotor physical disability. If the identification had been
done prior to finalization of rank list dated 31.7.2007, then the
Commission would have been well equipped to prepare a special list, in
which case the applicant would have been rank No.4 among the 7
candidates included therein. In such a situation, the first two candidates in
the said list would have secured advise and appointment even otherwise in
accordance with their ranking a turn going by the OC-BC turns. Then only
five candidates remain, out of which the applicant would have been
second. Admittedly, even going by the case of the Government, the
Commissioner of Commercial Taxes had sent a special requisition during
the currency of rank list that 3 vacancies could be utlized for advise and
appointment of candidates in the PH quota. Therefore, if the Government
had taken the decision with due diligence so as to identify the post of
CTO/STO as suitable for PH quota appointment then, as against the said 3
vacancies, the applicant could have been advised in the second among said
3 vacancies. The applicant has missed the bus only on account of the grave
illegality and impropriety committed by the competent authority of the
State Government and the department concerned in not taking the said
decision at any time prior to the finalization of Anx.A-2 rank list. Hence,
O. P. (KAT) No. 449/2020
the missing of the bus by the applicant who is a physically disabled
candidate, is only on account of the grave illegality and impropriety
committed by the competent authority of the State Government. Hence,
prima facie the Tribunal is fully right in holding both in Anx.A-11 order as
well as in Ext.P-5 order that this is a fit case where the Government should
consider the case of the applicant for appointment by taking decision as to
whether the statutory discretion conferred under Rule 39 of Part II KS &
SSR could be resorted to in the instant case. That apart, Anx.A-11 final
order rendered by the Tribunal in O.A. No. 2190/2014 dated 18.12.2015
has become final and conclusive and is an inter partes judgment between
the original applicant and respondents therein (viz, 1 st respondent herein
and the petitioners herein). The competent authority of the State
Government has not challenged Anx.A-11 order in the manner known to
law. The findings and observations made by the Tribunal in Anx.A-11
order has become final and conclusive, as the same has not been altered in
the manner known to law, inasmuch as the same has not been challenged
either in appellate proceedings or in review proceedings. Having suffered
a verdict as per Anx.A-11, it is now not open to the Tribunal to say that the
Tribunal should not have issued the impugned Ext.P-8 order. The main
O. P. (KAT) No. 449/2020
finding of the Tribunal in Ext.P-8 is that the issuance of impugned Anx.A-
13 rejection order dated 3.12.2016 cannot be said to be in lawful and
proper compliance of the binding orders and directions issued by the
Tribunal, which has culminated in Anx.A-11 inter partes judgment
rendered as earlier as on 18.12.2015. Having suffered the said verdict at
Anx.A-11 and having not challenged the said Anx.A-11 order which has
become binding inter partes, the direction issued bythe Tribunal to
consider the case of the applicant for appointment in terms of Rule 39 of
Part II KS & SSR has become final and conclusive. Now, at this stage the
petitioners herein are estopped from challenging the said conclusive
finding which is mainly emanated from Anx.A-11 order. The tone and tenor
of the submissions of the ptitioners herein appears to be that the said
direction to consider the case of the petitioners in terms of Rule 39 of Part
II KS & SSR has been made for the first time by the Tribunal only as per
Ext.P-8 order. Nothing would be more wrong than that.
22. The learned Government Pleader had submitted that the
governmental authorities had filed this Original Petition mainly on
account of the concern in respect of the directions and findings made by
the Tribunal in Ext.P-8 about the liability to identify backlog vacancies
O. P. (KAT) No. 449/2020
from 7.2.1996, and that is why the Government has taken the pain to file
this Original Petition.
23. After hearing both sides it appears that, the findings and orders
made by the Tribunal at Ext.P-8 is only on account of the faulty reasoning
made by the Government in Anx.A-13 rejection order about the lack of
retrospectivity to the government order issued in the year 2009 for
identification of the post of CTO/STO as suitable in the 3% PH quota. The
said finding and reasoning made by the Government in Anx.A-13 order,
more particularly in para 6 thereof, was wrong for reasons more than one,
predominantly on account of the dictum categorically laid down by the
Apex Court in Ravi Prakash's case supra [(2010) 7 SCC 626].
However, after hearing both sides prima facie we are of the view that there
may not be any necessity for the governmental authorities to identify
backlog vacancies from 7.2.1996 onwards for the purpose of compliance of
the directions issued by the Tribunal in Anx.A-11 and Ext.P-8 for the
limited purpose of considering the case of the applicant herein. After all,
the only limited matter arising out of Anx.A-11 and Ext.P-8 is only for
considering the case of the applicant in terms of Rule 39 of Part II KS &
SSR. For that purpose, the abovesaid aspects pointed out
O. P. (KAT) No. 449/2020
hereinabove would unerringly lead to the irresistible conclusion that the
appicant has missed the bus only on account of the grave illegality
committed by the Government in the long delay in not identifying the post
as suitable at any time prior to the finalization of Anx.A-2 rank list. If that
be so, since two candidates in Anx.A-2 rank list, who are otherwise
suffering from physical disability, have already secured advise in the
regular OC-BC turns while effectuating vertical reservation, and 3
vacancies have been admittedly reported by the Commissioner for
Commercial Taxes during the currency of Anx.A-2 rank list and as the
same could not be utilized by the Public Service Commission for such PH
quota appointment in terms of Section 33 of the Act as the Commission
could not prepare a special PH list in Anx.A-2 rank list, and if identifiction
of post has been done at any time prior to the finalization of Anx.A-2 rank
list, then the applicant would have secured advise as against the second
among the 3 vacancies, etc and hence it would unerringly point out that
the appicant has missed the bus only on account of the grave illegality
committed by the Government. If the Government takes into consideration
those cardinal, crucial and relevant aspects of the matter, then it is clear like
the daylight that the Tribunal cannot be found fault with for having issued
O. P. (KAT) No. 449/2020
directions to consider the case of the applicant for appointment by taking
decision as to whether the statutory discretion under Rule 39 of Part II
KS & SSR is to be exercised or not. For that matter, there may not be any
necessity for the governmental authorities either to identify the backlog
vacancies from 2007 onwards, or at any time from 7.2.1996 onwards. So,
therefore the plea made by the governmental authorities that floodgates
will be open if backlog vacancies are identified from 7.2.1996 etc, appears
to be legally faulty for reasons more than one. The legal aspect of the
matter is that the said order made by the Tribunal is only on the basis of
the conclusive declaration of law made by the Apex Court in Ravi
Prakash's case supra. That apart, if the abovesaid perspective is duly
taken note of by the Government and the case of the applicant is properly,
lawfully and effectively considered in terms of Rule 39 of Part II KS & SSR
as aforementioned, then there may not be any necessity for the
Government to identify backlog vacancies either from 2007 onwards (date
of coming into force of the rank list) or for the previous period from the
date of coming into force of the Central Act, viz 7.2.1996 onwards.
Identifying backlog vacancies for the purpose of compliance of directions
of the Tribunal as per Anx.A-11 and Ext.P-8 would arise only if the first
O. P. (KAT) No. 449/2020
cardinal aspect was not available. However, we make it clear that if the
Government still sticks on to hypertechnical stand that the case of the
applicant cannot be considered in terms of Rule 39 of Part II KS & SSR in
view of abovesaid aspect, then certainly the Government will be obliged to
consider the backlog vacancies from the year 2007 onwards, and find out
whether if those vacancies were also reported and post was identified
prior to the finalization of rank list, whether the applicant could have
secured appointment etc. If the said basis for identification of backlog
vacancies from 2007 onwards is also not sufficient, then certainly the
Government may have to consider the effect of backlog vacancies in the
cadre of CTO/STO from 7.2.1996 onwards. Therefore, we are of the firm
view that the argument made by the Government regarding opening of
floodgates if the directions of the Tribunal at Anx.A-11 and Ext.P-8
are complied with, appears to be specious and mainly imaginary ones. We
are now apprised that the original applicant is now aged about 53 years.
He has been waiting in the queue for a very long time and he has diligently
prosecuted for the enforcement of his rights as can be seen from the
previous rounds of litigation as per Anxs.A-8 & A-11 and Ext.P-8. The
applicant has been repeatedly knocking on the doors of the governmental
O. P. (KAT) No. 449/2020
authorities. We hope and trust that atleast now, the government
authorities will rise up to the occasion and consider the case of the
applicant with all compassion and taking into account the various aspects
pointed out hereinabove, as well as the other aspects dealt with in Anx.A-
11 and Ext.P-8 orders of the Tribunal. So long as Anx.A-11 order has
become final and conclusive, it is not open to the Government to say that
the directions issued by the Government to consider the case of the
applicant in terms of Rule 39 of Part II KS & SSR is liable to be interfered
with.
24. For these reasons we find that there is no merit in this Original
Petition, and no grounds have been made out by the petitioners for
judicial interdiction of the considered order passed by the Tribunal at
Ext.P-8. However, we note that the impugned Ext.P-8 final order has been
rendered by the Tribunal as early as on 29.8.2019. The present OP(KAT)
has been filed before this Court on 17.12.2020. The applicant has been
waiting all alone with all patience. Taking note of these facts and
circumstances we order that the time limit for compliance of abovesaid
directions will stand extended by a further period of 6 weeks from the date
of receipt of a certified copy of this judgment, as last chance.
O. P. (KAT) No. 449/2020
25. The petitioners' counsel may forward certified copies of this
judgment to the Principal Secretary to Government in the Taxes
Department as well as to the Commissioner of Commercial Taxes,
Government of Kerala, for necessary information and immediate
compliance.
With these observations and directions, the above Original
Petition (KAT) will stand dismissed. However, taking into consideration
the earnest submissions of Sri.B.Unnikrishna Kaimal, learned Senior
Government Pleader, we desist from ordering any cost in this case.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
MMG
O. P. (KAT) No. 449/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA (EKM) NO.144/17 ALONG
WIITH ITS ANNEXURES.
ANNEXURE A1 TRUE COPY OF G.O(RT) NO.939/2016/TAXES
DATED 03.12.2016.
ANNEXURE A2 TRUE COPY OF THE RANK LIST DATED
31.07.2007.
ANNEXURE A3 TRUE COPY OF G.O(P) NO.32/2007/SWD DATED
26.06.2007.
ANNEXURE A4 TRUE COPY OF ORDER DATED 28.01.2011 IN
W.P.C NO.24046/2009 OF HON'BLE HIGH COURT
OF KERALA.
ANNEXURE A5 TRUE COPY OF G.O(P) NO.43/2009/SWD DATED
13.10.2009.
ANNEXURE A6 TRUE COPY OF G.O(P) NO.7/2011/SWD DATED
24.01.2011.
ANNEXURE A7 TRUE COPY OF REPRESENTATION DATED
28.01.2011 MADE BEFORE THE 1ST RESPONDENT
ANNEXURE A8 TRUE COPY OF ORDER DATED 22.05.2013 IN
T.A. NO.5570/2012
ANNEXURE A9 TRUE COPY OF G.O(RT) NO.12/2014/TD DATED
04.01.2014.
ANNEXURE A10 TRUE COPY OF NOTIFICATION DATED 21.10.2011
OF DISTRICT OFFICER, PSC, KANNUR.
ANNEXURE A11 TRUE COPY OF ORDER DATED 18.12.2015 IN OA
NO. 2190/2014.
ANNEXURE A12 TRUE COPY OF REPRESENTATION DATED
19.01.2016 OF APPLICANT.
O. P. (KAT) No. 449/2020
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT BY THE
2ND PETITIONER.
ANNEXURE R2(A) TRUE COPY OF THE G.O(P) NO.40/2011/SWD
ISSUED BY THE GOVERNMENT.
EXHIBIT P3 COPY OF THE REJOINDER FILED BY THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF MA (EKM) NO.122/2017 IN OA
(EKM) NO.144/2017.
ANNEXURE A14 TRUE COPY OF G.O(P) NO.8/17/SJD DATED
06.05.2017.
EXHIBIT P5 TRUE COPY OF THE MA (EKM) NO.392/2019 IN
OA (EKM) NO.144/2017.
ANNEXURE A15 TRUE COPY OF REPLY DATED 4.01.2019 GIVEN
BY STATE PUBLIC INFORMATION OFFICER TO THE
APPLICANT.
ANNEXURE A16 TRUE COPY OF COMMUNICATION DATED
26.04.2012 ISSUED BY THE COMMISSIONER OF
COMMERCIAL TAXES TO THE 6TH RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPLY STATEMENT PREFERRED
BY THE RESPONDENTS 2 AND 3.
EXHIBIT P7 TRUE COPY OF REJOINDER TO THE REPLY
STATEMENT OF RESPONDENTS 2 AND 3 FILED BY
THE 1ST RESPONDENT DATED 31.05.2018.
EXHIBIT P8 TRUE COPY OF THE ORDER IN OA(EKM) NO.
144/2017 DATED 29.08.2018.
EXHIBIT R1(A) TRUE COPY OF APPLICATION DATED 28.02.2017
SUBMITTED UNDER THE RIGHT TO INFORMATION
ACT BEFORE PUBLIC INFORMATION OFFICER OF
4TH RESPONDENT ALONG WITH ITS REPLY DATED
29.03.2017
O. P. (KAT) No. 449/2020
EXHIBIT R1(B) TRUE COPY OF MAIN LIST PUBLISHED BY 5TH
RESPONDENT IN CATEGORY NO.387/2013 IN THE
POST OF COMMERCIAL TAX OFFICER IN
COMMERCIAL TAXES DEPARTMENT
