Kerala High Court
Dr.Anupama K.P vs University Of Calicut on 3 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WA NO. 1527 OF 2021
AGAINST THE JUDGMENT IN WP(C) 16456/2021 OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
DR.ANUPAMA K.P., AGED 35 YEARS
RESIDING AT SOMA NIVAS, PALLIKKAL P.O.,
MALAPPURAM, PIN-673 634.
BY ADVS.
P.RAVINDRAN (SR.)
LAKSHMI RAMADAS
APARNA RAJAN
SREEDHAR RAVINDRAN
M.R.SABU
RESPONDENTS/RESPONDENTS:
1 UNIVERSITY OF CALICUT,
REPRESENTED BY ITS REGISTRAR,
CALICUT UNIVERSITY P.O., THENJIPALAM,
MALAPPURAM-673 635.
2 THE REGISTRAR, UNIVERSITY OF CALICUT,
CALICUT UNIVERSITY P.O., THENJIPALAM,
MALAPPURAM-673 635.
3 THE VICE CHANCELOOR, UNIVERSITY OF CALICUT,
CALICUT UNIVERSITY P.O., THENJIPALAM,
MALAPPURAM-673 635. *ADDL.R4 IMPLEADED.
ADDL.R4 DR.PRAMOD C.,
ASSISTANT PROFESSOR, DEPARTMENT OF BOTANY,
UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.,
THENJIPALAM, MALAPPURAM-673 635.
W.A. No.1527 of 2021 - : 2 :-
THE ABOVE RESPONDENT IS IMPLEADED AS ADDL.R4 AS
PER ORDER DATED 15.12.2021 IN I.A.1/2021 IN WA
1527/2021.
BY ADVS.
AMAL KASHA
T.B.HOOD(K/000253/1998)
M.ISHA(K/001052/1998)
P.C.SASIDHARAN, SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.1527 of 2021 - : 3 :-
C.R.
P.B.SURESH KUMAR & SOPHY THOMAS, JJ.
-----------------------------------------------
Writ Appeal No.1527 of 2021
-----------------------------------------------
Dated this the 3rd day of February, 2023
JUDGMENT
P.B.Suresh Kumar, J.
Social justice is said to be one of the fundamental
means to build a healthy and contented society. In a country of
diversities like ours, where the need for conferment of special
benefits and reservation to different classes of citizens are
recognised from time to time for socio-economic and
educational advancement, laying down a proper and correct
procedure for conferment of such benefits without offending
the constitutional and other rights of others, is a constant
struggle. We are confronted with one such situation in this case
and let us make an attempt to resolve the same.
2. The writ appeal arises from W.P.(C) No.16456 of
2021. The matter relates to the right of the petitioner therein
for appointment as Assistant Professor in Journalism and Mass
Communication in the University of Calicut (the University). The
appellant is the petitioner in the writ petition. Parties and
W.A. No.1527 of 2021 - : 4 :-
documents are referred to in this judgment for convenience, as
they appear in the writ petition.
3. In terms of Ext.P1 notification, the University
invited applications from eligible candidates for appointment to
the post of Assistant Professor in various departments of the
University. The number of vacancies notified were 63, of which
2 vacancies were of the Department of Journalism and Mass
Communication. The petitioner who was qualified to be
considered for appointment as Assistant Professor in Journalism
and Mass Communication, had applied for selection for
appointment in response to the notification. Ext.P4 is the rank
list of the candidates applied for selection in the Department of
Journalism and Mass Communication. In Ext.P4, the petitioner is
assigned rank No.2. Even though there were 2 vacancies, the
candidate who was assigned rank No.1 alone was appointed.
4. Section 6(2) of the Calicut University Act, 1975
provides that while making appointments to teaching posts by
direct recruitment, the University has to mutatis mutandis
observe the provisions contained in clauses (a), (b) and (c) of
Rule 14 and Rules 15, 16 and 17 of the Kerala State and
Subordinate Service Rules (KS & SSR), as amended from time
to time. In light of the said provision, the University is following
W.A. No.1527 of 2021 - : 5 :-
the 100 Point Roster contained in the Annexure to Part II KS &
SSR, category-wise, based on the date of occurrence of
vacancies, treating all departments of the University as one
single unit. It is stated by the petitioner that going by the
respective dates of occurrence of the vacancies in the
Department of Journalism and Mass Communication, roster
points 31 and 54 are the slots to be applied for filling up the
vacancies that arose in the Department, of which the vacancy
corresponding to roster point 31 is a slot due to open
competition candidates and the vacancy corresponding to
roster point 54 is a slot due to candidates belonging to
Ezhavas, Thiyyas and Billavas Communities (ETB
Communities). According to the petitioner, insofar as there
were 63 vacancies, the first rank holder should have been
appointed against the vacancy corresponding to roster point 31
and the petitioner being the second rank holder as also a
candidate belonging to the category ETB Communities, should
have been appointed against the vacancy corresponding to
roster point 54. It is stated by the petitioner that instead, even
though the University has appointed the first rank holder in the
first vacancy that arose in the Department of Journalism and
Mass Communication, the petitioner was not appointed against
W.A. No.1527 of 2021 - : 6 :-
the second vacancy that arose in the said department, on the
ground that the said vacancy is one to be earmarked for
candidates belonging to the Special Reservation Category
"persons with disabilities" in terms of Section 34 of the Rights
of Persons with Disabilities Act, 2016 (the Act). It is stated by
the petitioner that social reservation in favour of Scheduled
Castes, Scheduled Tribes and Other Backward Classes are to
be effected vertically and special reservation in favour of
"persons with disabilities" are to be effected horizontally and
since the reservation in favour of "persons with disabilities" is
horizontal reservation, the same has to be given effect to after
filling up the slots by adjusting/accommodating those
candidates who are entitled to reservation against their
respective social reservation categories after deleting the
corresponding number of candidates therefrom, without
affecting the percentage of reservations in favour of Scheduled
Castes, Scheduled Tribes and Other Backward Classes. It is
alleged by the petitioner that instead of resorting to the said
procedure, the University has effected reservation in favour of
"persons with disabilities" vertically as in the case of
reservations in favour of Scheduled Castes, Scheduled Tribes
and Other Backward Classes, by earmarking roster points 2, 28
W.A. No.1527 of 2021 - : 7 :-
and 54 for the said classes and it is on account of the said
reason that the petitioner was not appointed against roster
point 54. It is also alleged by the petitioner that on account of
the said incorrect procedure adopted by the University, the
candidates belonging to ETB Communities who were otherwise
entitled to 9 posts in a process of selection for filling up of 63
vacancies, could get only 8 posts. It is also stated by the
petitioner that even though roster points 2, 28 and 54 were
earmarked by the University for effecting reservation in favour
of "persons with disabilities", since qualified candidates were
not available for appointment against vacancies corresponding
to roster points 2 and 54 from the category of "persons with
disabilities", the University decided to resort to special
recruitment for effecting appointments against the vacancies
corresponding to the said roster points. Ext.P8 is the decision
taken by the University in this regard. The case of the
petitioner is that the procedure adopted by the University in
the matter of drawing up the list of appointees is illegal, being
violative of Rule 15 of Part II KS & SSR, and insofar as the
vacancy corresponding to roster point 54 in the Annexure to
Part II KS & SSR is earmarked for candidates belonging to ETB
Communities, the petitioner should have been appointed
W.A. No.1527 of 2021 - : 8 :-
against the said vacancy. The petitioner therefore sought a
direction to the University to appoint her as Assistant Professor
in Journalism and Mass Communication against the vacancy
corresponding to roster point 54.
5. A counter affidavit was filed in the writ petition
on behalf of the University. It is admitted by the University in
the counter affidavit that three additional slots were introduced
in the 100 Point Roster contained in the Annexure to Part II KS
& SSR as slots 1A, 26A and 51A to comply with the requirement
of 4% reservation as is provided for in Section 34 of the Act. It
is also admitted by the University in the counter affidavit that
on account of the introduction of the additional slots referred to
above, the original slot 31 became slot 29 and the original slot
54 became slot 51A,, and it is on account of the said reason
that the petitioner was not appointed. The stand taken by the
University in the counter affidavit is that the reservation in
favour of "persons with disabilities" is to be and can be given
effect to only in the manner followed by the University, and
there is no illegality, therefore, in the procedure adopted by
the University or in the appointments made.
6. It is seen that the learned Single Judge
dismissed the writ petition taking the view that since the
W.A. No.1527 of 2021 - : 9 :-
vacancy corresponding to roster point 54 has been filled up by
appointing a candidate belonging to ETB Communities, though
not in the Department of Journalism and Mass Communication,
there is no illegality in the appointments effected. The
petitioner is aggrieved by the decision of the learned Single
Judge and hence this appeal.
7. Heard the learned Senior Counsel for the
petitioner as also the learned Standing Counsel for the
University.
8. The learned Senior Counsel for the petitioner
reiterated the case of the petitioner in the writ petition. He has
relied on the nine Judge Bench decision of the Apex Court in
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
and the decision of the Apex Court in Rajesh Kumar Daria v.
Rajasthan Public Service Commission, (2007) 8 SCC 785,
in support of the case of the petitioner. It was asserted by the
learned Senior Counsel that the procedure adopted by the
University for effecting the reservation in favour of "persons
with disabilities" amounts to vertical reservation which is not
only impermissible, but also goes against the provisions
contained in Rule 15 of Part II KS & SSR. The submission of the
learned Senior Counsel, in the circumstances, was that in the
W.A. No.1527 of 2021 - : 10 :-
absence of a candidate qualified to be considered for
appointment against the vacancy that arose in the Department
of Journalism and Mass Communication among the applicants
entitled to reservation under the category "persons with
disabilities", the petitioner should have been appointed against
the vacancy corresponding to roster point 54.
9. The learned Standing Counsel for the
University did not dispute the fact that had there not been any
reservation in favour of "persons with disabilities", the
petitioner being the second rank holder and a candidate
belonging to Ezhava Community, would have been certainly
entitled to be appointed against the vacancy corresponding to
roster point 54. As stated in the counter affidavit, the learned
Standing Counsel submitted that in light of the provisions
contained in Rules 14 to 17 of Part II KS & SSR, the reservation
in favour of "persons with disabilities" can be effected only in
the manner followed by the University and any other procedure
would affect the rights of candidates entitled to reservation in
terms of the said Rules. The learned Standing Counsel has also
submitted that the said procedure is followed in light of G.O.
(P)No.46/2008/SWD dated 19.07.2008, G.O.(P) No.8/2017 dated
06.05.2017 as also Ext.P7 order issued by the Government.
W.A. No.1527 of 2021 - : 11 :-
The learned Standing Counsel has also relied on the decision of
this Court in Muhazin P. v. Government of Kerala, 2010 (4)
KHC 887, to justify the procedure followed by the University.
10. We have examined the arguments advanced
by the learned counsel for the parties on either side.
11. In light of the submissions made by the learned
counsel for the parties, the question that falls for consideration
is whether the procedure adopted by the University for
effecting reservation in favour of "persons with disabilities" is
correct.
12. Section 34 of the Act dealing with reservation
reads thus:
"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
W.A. No.1527 of 2021 - : 12 :-
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
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.
(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."
As evident from the extracted provision, the statutory
requirement is that not less than 4% of the total number of
vacancies shall be filled up with persons with benchmark
disabilities, of which one percent each shall be reserved for
persons with benchmark disabilities under clauses (a), (b) and
(c) and one percent for persons with benchmark disabilities
under clauses (d) and (e), referred to therein. It is also evident
W.A. No.1527 of 2021 - : 13 :-
from the extracted provision that where in any recruitment
year any vacancy cannot be 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 a 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.
13. The reservation provided for under the Act in
favour of "persons with disabilities" being one that falls within
the purview of Article 16(1) of the Constitution, there cannot be
any doubt to the proposition that the said reservation has to be
given effect to only horizontally. This aspect has been clarified
by the Apex Court in Indra Sawhney. In addition, in the said
case, the Apex Court has also laid down the procedure for
effecting such reservations. The relevant portion of paragraph
812 of the judgment reads thus:
"There are two types of reservations, which may, for
the sake of convenience, be referred to as 'vertical
reservations' and 'horizontal reservations'. The reservations in
favour of Scheduled Castes, Scheduled Tribes and other
W.A. No.1527 of 2021 - : 14 :-
backward classes [under Article 16(4)] may be called vertical
reservations whereas reservations in favour of physically
handicapped [under clause (1) of Article 16] can be referred
to as horizontal reservations. Horizontal reservations cut
across the vertical reservations -- what is called interlocking
reservations. To be more precise, suppose 3% of the
vacancies are reserved in favour of physically handicapped
persons; this would be a reservation relatable to clause (1) of
Article 16. The persons selected against this quota will be
placed in the appropriate category; if he belongs to SC
category he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition (OC)
category, he will be placed in that category by making
necessary adjustments. Even after providing for these
horizontal reservations, the percentage of reservations in
favour of backward class of citizens remains -- and should
remain -- the same. This is how these reservations are
worked out in several States and there is no reason not to
continue that procedure."
(Underline supplied)
In the context of examining the correctness of the procedure
followed by the Government of Uttar Pradesh and its
authorities in the matter of effecting special reservations in
favour of women for admission to medical courses, the Apex
Court has elaborated and explained the procedure aforesaid in
Anil Kumar Gupta v. State of U.P., (1995) 5 SCC 173.
Paragraph 18 of the said judgment reads thus:
"18. Now, coming to the correctness of the procedure
prescribed by the revised notification for filling up the seats, it
was wrong to direct the fifteen per cent special reservation
seats to be filled up first and then take up the OC (merit)
quota (followed by filling of OBC, SC and ST quotas). The
W.A. No.1527 of 2021 - : 15 :-
proper and correct course is to first fill up the OC quota (50%)
on the basis of merit; then fill up each of the social reservation
quotas, i.e., SC, ST and BC; the third step would be to find out
how many candidates belonging to special reservations have
been selected on the above basis. If the quota fixed for
horizontal reservations is already satisfied -- in case it is an
overall horizontal reservation -- no further question arises. But
if it is not so satisfied, the requisite number of special
reservation candidates shall have to be taken and
adjusted/accommodated against their respective social
reservation categories by deleting the corresponding number
of candidates therefrom. (If, however, it is a case of
compartmentalised horizontal reservation, then the process of
verification and adjustment/accommodation as stated above
should be applied separately to each of the vertical
reservations. In such a case, the reservation of fifteen per cent
in favour of special categories, overall, may be satisfied or
may not be satisfied.) Because the revised notification
provided for a different method of filling the seats, it has
contributed partly to the unfortunate situation where the
entire special reservation quota has been allocated and
adjusted almost exclusively against the OC quota."
(Underline supplied)
In the context of special reservation for women provided for in
the Rajasthan Judicial Service, the Apex Court has elaborated
further the procedure aforesaid in Rajesh Kumar Daria.
Paragraph 9 of the said judgment reads thus:
"9. The second relates to the difference between the nature of
vertical reservation and horizontal reservation. Social
reservations in favour of SC, ST and OBC under Article 16(4)
are "vertical reservations". Special reservations in favour of
physically handicapped, women, etc., under Articles 16(1) or
15(3) are "horizontal reservations". Where a vertical
reservation is made in favour of a Backward Class under
W.A. No.1527 of 2021 - : 16 :-
Article 16(4), the candidates belonging to such Backward
Class, may compete for non-reserved posts and if they are
appointed to the non-reserved posts on their own merit, their
number will not be counted against the quota reserved for
respective Backward Class. Therefore, if the number of SC
candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage
of posts reserved for SC candidates, it cannot be said that the
reservation quota for SCs has been filled. The entire
reservation quota will be intact and available in addition to
those selected under open competition category. (Vide Indra
Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v.
Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) But
the aforesaid principle applicable to vertical (social)
reservations will not apply to horizontal (special) reservations.
Where a special reservation for women is provided within the
social reservation for Scheduled Castes, the proper procedure
is first to fill up the quota for Scheduled Castes in order of
merit and then find out the number of candidates among them
who belong to the special reservation group of "Scheduled
Caste women". If the number of women in such list is equal to
or more than the number of special reservation quota, then
there is no need for further selection towards the special
reservation quota. Only if there is any shortfall, the requisite
number of Scheduled Caste women shall have to be taken by
deleting the corresponding number of candidates from the
bottom of the list relating to Scheduled Castes. To this extent,
horizontal (special) reservation differs from vertical (social)
reservation. Thus women selected on merit within the vertical
reservation quota will be counted against the horizontal
reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is
four), 19 SC candidates shall have to be first listed in accordance
with merit, from out of the successful eligible candidates. If such list
of 19 candidates contains four SC woman candidates, then there is
no need to disturb the list by including any further SC woman
candidate. On the other hand, if the list of 19 SC candidates contains
W.A. No.1527 of 2021 - : 17 :-
only two woman candidates, then the next two SC woman candidates
in accordance with merit, will have to be included in the list and
corresponding number of candidates from the bottom of such list
shall have to be deleted, so as to ensure that the final 19 selected SC
candidates contain four woman SC candidates. (But if the list of 19
SC candidates contains more than four woman candidates, selected
on own merit, all of them will continue in the list and there is no
question of deleting the excess woman candidates on the ground
that "SC women" have been selected in excess of the prescribed
internal quota of four.)"
(Underline supplied)
14. Admittedly, the University has not adopted the
procedure as has been laid down in the decisions aforesaid of
the Apex Court. Instead, as pointed out by the petitioner, the
University has effected the reservation in favour of "persons
with disabilities" vertically as is done in the case of
reservations in favour of Scheduled Castes, Scheduled Tribes
and Other Backward Classes, by earmarking roster points 1, 26
and 51 for the said classes and additional slots were created in
those roster points as slots 1A, 26A and 51A in order to protect
the interests of candidates who are otherwise entitled to be
considered for appointment against vacancies corresponding to
the said roster points. In that process, the roster points fixed in
terms of Annexure to Part II of KS & SSR for Scheduled Castes,
Scheduled Tribes and all Other Backward Communities have
been completely changed. As rightly pointed out by the learned
Senior Counsel for the petitioner, it is on account of the said
W.A. No.1527 of 2021 - : 18 :-
reason that the vacancy corresponding to roster point 54
became the vacancy corresponding to roster point 51A
earmarked for "persons with disabilities" and the petitioner,
who would have otherwise been appointed against the vacancy
corresponding to roster point 54, was denied appointment. In
light of the decisions of the Apex Court referred to in the
preceding paragraph, the procedure adopted by the University
as referred to above is faulty and illegal. In Indra Sawhney, it
has been held categorically by the Apex Court that while
effecting the reservations in favour of category of persons like
"persons with disabilities", it is obligatory for the employer to
ensure that the percentage of reservations in favour of
Scheduled Castes, Scheduled Tribes and Other Backward
Classes remain intact. In the case on hand, it is seen that on
account of the faulty procedure adopted by the University,
candidates belonging to ETB Communities who were otherwise
entitled to 9 posts in a process of selection for filling up of 63
vacancies, could get only 8 posts. That apart, the procedure
adopted by the University is violative of Rule 15 of Part II KS &
SSR also, for the same is contrary to the rotation turns provided
for in the Annexure to Part II KS & SSR. In terms of the said
Annexure, the rotation turns for ETB Communities are 2, 14, 18,
W.A. No.1527 of 2021 - : 19 :-
28, 34, 42, 54, 58 and 62 and on account of the introduction of
additional slots in the roster, the turns of ETB communities
have been changed to 3, 15, 19, 30, 36, 44, 57 and 61. When a
percentage of reservation is fixed in favour of a category by
allotting reserve points in a roster, the same are to be filled
from among the members of that reserved category only. It is
so held by the Apex Court in R.K. Sabharwal v. State of
Punjab, (1995) 2 SCC 745. The relevant portion of paragraph 4
of the judgment in the said case reads thus:
"When a percentage of reservation is fixed in respect of a
particular cadre and the roster indicates the reserve points, it
has to be taken that the posts shown at the reserve points are
to be filled from amongst the members of reserve categories
and the candidates belonging to the general category are not
entitled to be considered for the reserved posts."
Again, the procedure adopted by the University is violative of
the requirement under Section 34 of the Act also, as, if the
said procedure is adopted, in a rotation of 104 appointments,
only 4 persons with disabilities would be appointed, which may
not satisfy the requirement of 4% reservation.
15. As noticed, the view taken by the learned
Single Judge is that the vacancy corresponding to slot 54 in the
100 Point Roster has been filled up by the University by
appointing a candidate belonging to ETB Communities and it is
W.A. No.1527 of 2021 - : 20 :-
on account of the said reason, the learned Single Judge chose
to dismiss the writ petition. The petitioner also takes the stand
that slot 54 in the 100 Point Roster has gone to the vacancy
that arose in the Botany Department of the University on
31.05.2019 against which the fourth respondent in the writ
appeal was appointed and it is on that premise, the petitioner
has impleaded the said person in the writ appeal as the person
who would be affected by the decision in the writ petition. It is
seen that the vacancy corresponding to slot 54 has become
slot 51A on account of the introduction of additional slots in the
roster for effecting reservation in favour of "persons with
disabilities", and no candidate was appointed by the University
against the said slot since there were no candidates among the
"persons with disabilities" who have applied for selection for
appointment as Assistant Professor in the Department of
Journalism and Mass Communication. The fourth respondent in
the writ appeal is a person appointed against roster point 57
which was a slot due to an open competition candidate. The
premise on which the learned Single Judge chose to dismiss the
writ petition cannot, therefore, be said to be correct.
16. We have perused G.O.(P) No.46/2008/SWD
dated 19.07.2008 and G.O.(P) No.8/17 dated 06.05.2017,
W.A. No.1527 of 2021 - : 21 :-
copies of which were made available to us at the time of
hearing, as also Ext.P7 order issued by the Government. The
procedure prescribed by the Government in the said orders are
contrary to the decisions of the Apex Court in Indra Sawhney,
Anil Kumar Gupta and Rajesh Kumar Daria as regards the
procedure to be followed while effecting horizontal
reservations, which we are bound to follow in terms of Article
141 of the Constitution. We have also perused paragraph 11 of
the judgment of this court in Muhazin P., on which emphasis
was made by the learned Standing Counsel for the University,
and we find that the case aforesaid is a case where the
question was whether the reservation in favour of "persons
with disabilities", if effected in terms of G.O.(P)
No.46/2008/SWD dated 19.07.2008, would go against the rules
of rotation provided for in Rules 15 and 17 of Part II KS & SSR,
and the said question was answered in the negative. The said
case, according to us, has nothing to do with the question
which we are called upon to decide in this case.
17. Having found that the procedure adopted by
the University for effecting reservation in favour of "persons
with disabilities" was illegal and faulty, the next aspect to be
considered is as to the relief to which the petitioner is entitled
W.A. No.1527 of 2021 - : 22 :-
to. As explained by the Apex Court in Anil Kumar Gupta and
Rajesh Kumar Daria, in the case on hand, the University
should have first filled up slots in the roster due to open
competition candidates and candidates belonging to Scheduled
Castes, Scheduled Tribes and Other Backward Classes, and
should have thereupon examined the number of candidates
belonging to the category "persons with disabilities" who could
secure the appointments. Insofar as three persons are entitled
to appointment in that process, the shortfall, if any, should
have been made up by adjusting/accommodating the required
number of candidates belonging to the category "persons with
disabilities" against their respective social reservation
categories. Had this been a case where the requirement under
Section 34 could not have been satisfied by adopting the said
procedure, the University should have deleted the
corresponding number of candidates from the bottom of the
list, instead of introducing additional slots for "persons with
disabilities" in between. Be that as it may, inasmuch as it is
found that slot 54 in the roster due to the second vacancy that
arose in the Department of Journalism and Mass
Communication on 01.04.2019 is one earmarked for
appointment of a candidate belonging to the communities
W.A. No.1527 of 2021 - : 23 :-
"Ezhavas, Thiyyas and Billavas", in the absence of any
candidate belonging to the category "persons with disabilities",
the petitioner being the second rank holder and a candidate
belonging to the communities "Ezhavas, Thiyyas and Billavas",
she should have been appointed by the University against that
vacancy. As noted, since no candidate was appointed by the
University against the second vacancy that arose in the
Department of Journalism and Mass Communication on
01.04.2019, no one would be affected also by such
appointment.
18. Inasmuch as it is found that the procedure
adopted by the University for effecting reservation in favour of
"persons with disabilities" was incorrect and wrong and as
persons selected following the incorrect and wrong procedure
have already been appointed and are working in the University
for quite some time, and since their appointments are not
under challenge in the writ petition, with a view to avoid
further disputes as regards the selection process, we deem it
appropriate to direct the University to rework the rotation chart
in respect of the appointments already made pursuant to
Ext.P1 notification notionally, following the procedure
prescribed by the Apex Court in Indra Sawhney, Anil Kumar
W.A. No.1527 of 2021 - : 24 :-
Gupta and Rajesh Kumar Daria and retain persons who are
appointed otherwise than in accordance with the said
procedure in supernumerary posts so that they will not be
affected by this decision and the University will be free to
adjust their appointments against future vacancies as and
when they arise. Having regard to the peculiar facts of this
case, we also deem it appropriate to clarify that in the process
of reworking the roster chart, insofar as it is seen that ten
vacancies notified could not be filled up for want of qualified
candidates, the University would be free to make up the
shortfall due to the category "persons with disabilities" if
qualified hands are available among the applicants for
selection. Insofar as we are directing the appointment of the
petitioner in the vacancy in the Department of Journalism and
Mass Communication, we also deem it appropriate to direct
that if the reservation in favour of the category "persons with
disabilities" cannot be completed even after following the
procedure directed, the shortfall can be made up by
earmarking the requisite number among the next arising
vacancies in the category of Assistant Professor for them, for
such a course would not be contrary to the provisions
contained in Section 34 of the Act, as it permits carrying
W.A. No.1527 of 2021 - : 25 :-
forward of vacancies to the subsequent recruitment years, if
the vacancies due to the category cannot be filled up due to
non-availability of suitable persons with benchmark disabilities
or for any other sufficient reasons.
In the result, the writ appeal is allowed, the
impugned judgment is set aside and the writ petition is
disposed of as follows:
i. The University is directed to appoint the
petitioner as Assistant Professor in the Department of
Journalism and Mass Communication in the vacancy
corresponding to roster point 54 forthwith.
ii. The University is also directed to rework the
rotation chart in respect of the appointments already made
pursuant to Ext.P1 notification notionally, following the
procedure prescribed by the Apex Court in Indra Sawhney,
Anil Kumar Gupta and Rajesh Kumar Daria and retain
persons who are appointed otherwise than in accordance with
the said procedure in supernumerary posts, so that they will
not be affected by this decision and the University will be free
to adjust their appointments against future vacancies as and
when they arise.
iii. It is clarified that in the process of reworking
W.A. No.1527 of 2021 - : 26 :-
the roster chart as directed, the University would be free to
make up the shortfall due to the category "persons with
disabilities", if qualified hands are available among the
applicants for selection and if the reservation in favour of the
category "persons with disabilities" cannot be completed even
after following the said procedure, the shortfall can be made up
by earmarking the requisite number of vacancies next arising
in the category of Assistant Professor for the category "persons
with disabilities".
iv. It is also clarified that the direction contained
in this judgment will not affect the rights of parties in pending
writ petitions where the selection and appointments made
pursuant to Ext.P1 notification are already under challenge.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
SOPHY THOMAS, JUDGE.
ds 05.01.2023
