Nair Service Society vs The State Of Kerala
2022 Latest Caselaw 57 Ker

Citation : 2022 Latest Caselaw 57 Ker
Judgement Date : 3 January, 2022

Kerala High Court

Nair Service Society vs The State Of Kerala on 3 January, 2022

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
    MONDAY, THE 3RD DAY OF JANUARY 2022/13TH POUSHA, 1943
                     WP(C) NO. 29695 OF 2021


PETITIONER:

         NAIR SERVICE SOCIETY,
         REPRESENTED BY ITS GENERAL SECRETARY,
         G.SUKUMARAN NAIR, N.S.S.HEAD OFFICE,
         PERUNNA, CHANGANASSERY P.O.,
         KOTTAYAM - 686 101.

         BY ADVS.
         R.T.PRADEEP
         V.VIJULAL
         M.BINDUDAS
         K.C.HARISH
RESPONDENTS:

    1    THE STATE OF KERALA
         REPRESENTED BY CHIEF SECRETARY,
         GOVERNMENT OF KERALA, SECRETARIAT,
         THIRUVANANTHAPURAM - 695 001.

    2    SPECIAL SECRETARY,
         SOCIAL JUSTICE DEPARTMENT,
         SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

    3    PRINCIPAL SECRETARY,
         HIGHER EDUCATION DEPARTMENT,
         SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

    4    PRINCIPAL SECRETARY,
         GENERAL EDUCATION DEPARTMENT,
         SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

         BY SRI.APPU P.S., G.P.

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03.01.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.29695/2021

                                2




                         JUDGMENT

Dated this the 3rd day of January, 2022

The petitioner is before this Court seeking to direct the

respondents to take a decision on Ext.P5 within such time

fixed by this Court which shall not be more than ten days.

2. The Nair Service Society is the petitioner. The

petitioner is challenging Ext.P1 Government Order wherein,

the reservation contemplated for Physically Disabled

Persons under Act 1 of 1996 and Act 49 of 2016 is made

applicable to Private Aided Educational Institutions.

3. The petitioner has a case that the Act will not

apply to the petitioner's Society. The Apex Court on being

convinced of the impossibility to work out backlog vacancies

under the repealed Act since 07.02.1996 onwards after the

latter Act coming into force repealing the earlier one, had

permitted the petitioner to move the Government seeking to WP(C)No.29695/2021

eschew from the insistence to fill up backlog vacancies

under the repealed former Act.

4. The petitioner accordingly submitted

representations before the Government enumerating the

impossibilities to comply with reservation on backlog

vacancies under the repealed Act after the latter Act being

brought into force after lapse of more than two decades.

However, to the surprise of the petitioner, the Government

has not taken any decision. The petitioner therefore seeks

to direct the Government to take a decision on Ext.P5

representation.

5. The contention of the petitioner is that the

identification of posts with reference to the disability under

the former Act and identification of post with reference

bench mark disability under the latter Act, are totally distinct

and different. The identification of posts with reference to

the disability under the former Act cannot be operated after WP(C)No.29695/2021

its repeal. The petitioner would point out that this will give

rise to the anomaly of identification of post with reference to

the Disability for those entitled for the vacancies under the

repealed Act and identification of post with reference to the

bench mark disability for those entitled for the vacancies

under the latter Act.

6. The petitioner further pointed out that if the

percentage of reservation being worked out on the

appointments made by the Private Aided Educational

Institutions, and on being implemented in the future

vacancies arisen, that will upset the quantum of reservation

provided under law and also affect the efficiency of service.

This Court is of the view that these are matters to be

considered by the 2nd respondent, at least at the first

instance. Interest of justice demands that the 2 nd

respondent is directed to consider Ext.P5 representation

submitted by the petitioner.

In the circumstances, the writ petition is disposed of

directing the 2nd respondent to consider Ext.P5

representation submitted by the petitioner within a period of

three months after giving an opportunity of hearing to the

petitioner.

Sd/-

APPENDIX OF WP(C) 29695/2021

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF G.O.(P) NO.18/2018/SJD DATED 18/11/2018 MAKING APPLICABLE THE LATER ACT AND FORMER ACT TO PRIVATE AIDED EDUCATIONAL INSTITUTIONS.

Exhibit P2 TRUE COPY OF JUDGMENT DATED 26/8/2020 IN WP(C) NO.2800/2019.

Exhibit P3 TRUE COPY OF JUDGMENT DATED 4/2/2021 IN W.A.NO.1238/2020.

Exhibit P4 TRUE COPY OF ORDER DATED 5/7/2021 IN SLP(C) OF THE HON'BLE SUPREME COURT OF INDIA AS AGAINST EXHIBIT P3.

Exhibit P5 TRUE COPY OF REPRESENTATION 12/7/2021 BY PETITIONER BEFORE 2ND RESPONDENT. Exhibit P6 TRUE COPY OF G.O.(P)NO.19/2021/G.EDN.

DATED 8/11/2021.