Kerala High Court
Dejo Jacob vs State Of Kerala on 8 September, 2021
WA No.1130/2021 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Wednesday, the 8th day of September 2021 / 17th Bhadra, 1943
W.A.NO. 1130 OF 2021
AGAINST JUDGMENT IN WP(C)No.20861/2020, DATED 03.08.2021 OF THIS COURT
APPELLANT/PETITIONER:
DEJO JACOB, , S/O.C. K. JACOB,AGED 26 YEARS CHARUVILAPUTHAN VEEDU,
H. NO.120, MUSEUM NAGAR, EDAPPALLY, ERNAKULAM-682024.
BY ADV. SRI.M.P.PRAKASH
RESPONDENTS/RESPONDENTS:
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 MILK PRODUCERS' UNIION LTD. NO.
E-150 (D), REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE,
EDAPPALLY, COCHIN-682024.
4. RECRUITMENT COMMITTEE, REPRESENTED BY 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. RAJEEVLAL R., RAREERAM T C 18 556 3, PUNNAKKAMUGHAL, ARAMADA P.O.,
THIRUVANANTHAPURAM-695 032.
7. BINU G., VARAVUVILA PUTHEN VEEDU, KULATHOOR UCHAKKADA P.O.,
THIRUVANANTHAPURAM-695 506.
BY GOVERNMENT PLEADER for R1 & R2
BY SMT.LATHA ANAND for R3
SRI.V.M.KRISHNAKUMAR FOR R4
SMT.ASHA ELIZEBATH MATHEW for R5 & R6
Writ Appeal praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay the operation
and implementation of the judgment dated 03.08.2021 in
W.P.(C)No.20861/2020 of this Hon'ble Court, during the pendency of this
appeal.
This Writ Appeal coming on for orders on 08.09.2021, the court on
the same day passed the following:
WA No.1130/2021 2/8
ALEXANDER THOMAS & A.BADHARUDEEN,JJ.
------------------------------------------------
W.A No.1130 of 2021
( Arising out of the judgment in WP(C) No.20861 of 2020 dated 03-08-2021
on the file of the learned Single Judge of this Court)
----------------------------------------------------
Dated this the 8th day of September, 2021
ORDER
Notices before admission for R1 & R2 have been taken
by the learned Senior Government Pleader. Notices before
admission for R3 has been taken by Smt.Latha Anand, the learned
Standing counsel of that respondent body and for R4 Recruitment
Committee has been taken by Sri.V.M.Krishnakumar, the learned
counsel and for contesting respondents 5 & 6 have been taken by
Smt.Asha Elizebath Mathew, the learned counsel. The Registry will
show the names of the aforementioned counsels in the cause list.
Service complete.
2. Sri.M.P.Prakash , the learned counsel appearing for the
appellant in the W.A/petitioner in W.P(C) would strongly urge
that the findings and directions made by the State Government in
Ext.P12 G.O(Rt.) No.752/2013/AD dated 27-04-2013 directing the
respondent Milma to accommodate the physically disabled
candidate mentioned therein as against the post of Technician
Grade II, was challenged by the respondent Milma, which has
failed both at the stage of W.P(C) and W.A, which has culminated
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W.A No.1130 of 2021
in the judgment dated 24-05-2016 of the Division Bench of this
Court in W.A No.671 of 2016, Ernakulam Regional Co-
operative Milk Producers Union Ltd. v. State of Kerala
[2016(2) KLT 894 (DB)] and that the said judgment of the
Division Bench has become final and conclusive inter partes.
Further that, the physically disabled candidate covered by Ext.P12
G.O has thereafter given appointment to the post of Technician
Grade II in the physically disabled quota. But that, in the next
selection process, which culminated in Ext.P16 Rank list, no
separate special list for considering physically disabled candidates
has been made by the Selection Authority, as against the 4% quota
(as per the 2016 Act), even for the post of Technician Grade II,
which has already been identified by the Government. That
selection to the post of Technician Grade II (identified by Ext.P12),
has not been effected as per the instant selection process as per
Ext.P16 Rank list on the specious ground that the Managing
committee of the respondent Society has chosen to restrict
physically disabled appointment in the physically disabled quota in
the above selection only to the post of Plant Attender Grade II. That
this above said stand for rejection of the respondent Society is per se
illegal and improper inasmuch as, it is already concluded by Ext.P12
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W.A No.1130 of 2021
and the consequential judgments thereto that the post of Technician
Grade II already stands identifiable by the competent authority of
the State Government as suitable for appointment in the physically
disabled candidates and no further identification is required.
Further that, the task of identification is left exclusively within the
province of the appropriate Government and not to the employer
concerned, as can be seen from a reading of the provisions
contained in the Rights of Persons with Disabilities Act, 2016
(Central Act 49 of 2016) [hereinafter referred to in short as "P.D
Act, 2016"] conferring the rights for physically disabled candidates,
etc.
3. Further, it is pointed out that selection and appointment
has now been given in favour of candidates like respondents 5 to 7
even to the post of Technician Grade II without providing any
reservation under the physically disabled candidate. We asked both
sides as regards the authorized actual strength/cadre strength to the
post of Technician Grade II in the respondent Milma and as to
whether the 4% quota is to be filled up on the basis of percentage of
the arising vacancies or percentage of the cadre strength, and going
by the acceptable norms in that regard, whether a post of
Technician Grade II will be available in the physically disabled
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W.A No.1130 of 2021
quota even from the present selection which culminated in Ext.P16
Rank list, etc. The respondent Milma will immediately file an
affidavit regarding all relevant aspects on the matter including the
abovesaid aspect mentioned hereinabove and should also clearly
state about the reasons for not granting lateral reservation to the
physically disabled candidates in the instant selection which
culminated in Ext.P16 Rank list even to the post of Technician
Grade II though it has already been identified by the Government as
per Ext.P12 G.O and also as to the sanctioned authorized
strength/cadre strength in the post of Technician Grade II and
whether the norm for determining 4% physically disabled quota is
to be reckoned on the basis of percentage of the cadre strength or
percentage of the arising vacancy and if it is on the basis of the
lateral criteria of arising vacancy as to the facts and figures
regarding the arising vacancies to determine as to whether
vacancies has fallen in the 4% physically disabled quota in the post
of Technician Grade II even after appointment of the candidate
covered by Ext.P12 G.O, etc. Affidavit in this regard shall be duly
filed by the respondent Milma within one month. As of now,because
of scarcity of proper pleadings and materials from the side of the
respondents, we are not in a position to consider the prayer for
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W.A No.1130 of 2021
interim stay. But we would order that the appointment of many
other selected candidates including that of respondents 5 to 7 have
been made on account of their inclusion on Ext.P16 Rank list, to the
post of Technician Grade II, then such selection and appointment
from those parties will be subject to further orders in this appeal
and also will be subject to the result of this writ appeal.
4. Sri.M.P.Prakash, the learned counsel appearing for the
appellant would also contend that since the respondent Milma
would broadly satisfy with the definition of Section 2(k)
(Government Establishment) as per the P.D.Act, 2016, then the
provisions for lateral reservation for physically disabled candidates
will apply to the said Co-operative Society not in terms of the
provisions contained in Section 80(5) of the Kerala Co-operative
Societies Act, but by virtue of the mandatory provisions contained in
P.D Act, 2016, whereas per contra the other side would contend that
the provisions that may apply for lateral reservation of physically
disabled candidates to a Co-operative Society will only be Section
80(5) of the Kerala Co-operative Societies Act, which is 3% and not
4% as per Section 34 of the P.D Act, 2016. Since the provision
contained in Section 80(5) of the Kerala Co-operative Societies Act
is a special law relating to lateral reservation in Co-operative
WA No.1130/2021 7/8
W.A No.1130 of 2021
Societies and the said special law will prevail over the general law,
and that the State Legislature has the competence to frame such a
law in terms of Section 80(5) of the Act, and hence the contra
prescriptions in the Union Law will not prevail as the State law has
been enacted by exercise of legislative competence which is existing
in pith and substance in favour of the State legislature, on account
of the relevant entries for enacting laws in co-operative sector.
List the case on 29-10-2021.
H/o
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
amk
08-09-2021 /True Copy/ Assistant Registrar
WA No.1130/2021 8/8
APPENDIX OF WA 1130/2021
Exhibit P12 TRUE COPY OF THE G.O DATED 27.04.2013.
Exhibit P16 TRUE COPY OF THE RANK LIST DATED 07.09.2020 PUBLISHED
BY THE 3RD RESPONDENT.
