Kerala High Court
State Of Kerala vs Anandan Unni on 17 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 17TH DAY OF JANUARY 2023/27TH POUSHA, 1944
O.P(KAT).NO.110 OF 2022
AGAINST THE ORDER DATED 17.12.2021 IN O.A.(EKM).NO.630/2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 & 3 IN O.A:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT
DEPARTMENT OF AGRICULTURE,
THIRUVANANTHAPURAM, PIN - 695001, KERALA.
2 THE DIRECTOR
DEPARTMENT OF AGRICULTURE
DIRECTORATE OF AGRICULTURE
VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695035,
KERALA.
BY SRI.B.UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER
RESPONDENTS/APPLICANTS & 2ND RESPONDENT IN O.A.:
1 ANANDAN UNNI
AGED 25 YEARS
S/O SIVAN K.K, KALAYIL HOUSE
KANJIRAMATTOM P.O., ERNAKULAM
KERALA, PIN - 682315
2 PRITHVIRAJ C.
AGED 28 YEARS
S/O PADMANABHAVAN, CHALIL HOUSE
EDAYILEKADU, VALIYAPARAMBA P.O
KASARAGODE, PIN - 671312
O.P.(KAT).NO.110 OF 2022 :: 2 ::
3 RIJO KURIAKOSE
AGED 28 YEARS
S/O KURIAKOSE, ADUKUZHITHANDEL HOUSE
MARIKA P.O, PALAKUZHA
MUVATTUPUZHA
ERNAKULAM, PIN - 686662
4 SANTHOSH RAJ B.
AGED 32 YEARS
S/O SUBBAPATTALI
THEKKEKARA HOUSE, KARADKA P.O, KASARKODE,
PIN - 671542
5 KERALA PUBLIC SERVICE COMMISSION
REPRESENTED BY THE SECRETARY
THULASI HILLS, PATTOM PALACE P.O
THIRUVANANTHAPURAM, KERALA, PIN - 695004
BY ADV.SMT.K.P.GEETHA MANI
BY ADV.SRI.P.N.SANTHOSH
BY SRI.P.C.SASIDHARAN, SC, KPSC
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 17.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(KAT).NO.110 OF 2022 :: 3 ::
JUDGMENT
A.K. Jayasankaran Nambiar, J.
The State is the petitioner before us in this O.P.(KAT) that
impugns the order dated 17.12.2021 of the Kerala Administrative
Tribunal in O.A(EKM).No.630 of 2019. The brief facts necessary for
disposal of the O.P.(KAT) are as follows:
The applicants before the Tribunal were candidates included in a
rank list published by the Kerala Public Service Commission [PSC] for
the post of Agricultural Assistant Grade II in a Special Recruitment for
PH Locomotor Disability/Cerebral Palsy, Hearing Impairment, Low
Vision, for filling up 3% of the backlog vacancies resulting from the
recruitments carried out during the year 2004 to 2007. The rank list
was published on 4.9.2018, and it is not in dispute that the applicants
featured in the said rank list. When the appointment chart was
prepared, the applicants noticed that only four persons had been
granted appointment, and that the applicants were not included
O.P.(KAT).NO.110 OF 2022 :: 4 ::
therein. It is aggrieved by the same, and contending that the required
number of vacancies as contemplated under the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 [hereinafter referred to as the '1995 Act'] had
not been reported to the PSC for enabling their appointments, that the
applicants approached the Tribunal.
2. Before the Tribunal, the Government relied on Annexure A4
Government Order and the Annexure to the said G.O. which directed
that 798 posts in Class III [3% of 26616] in Government Departments
will be set apart as backlog vacancies and reserved exclusively for
appointment of Persons with Disabilities. The Annexure to the said G.O.
indicated that 8 vacancies were reserved in Class III posts in the
Agricultural Department. The contention of the Government was that of
these 8 vacancies, 4 were earmarked for and subsequently filled from
among the LD clerks and only 4 remained to be filled through
Agricultural Assistants.
3. The Tribunal, initially, by an interim order dated 22.7.2021,
directed the provisional reporting of 12 vacancies for the post of
Agricultural Assistant Grade II in the category earmarked for persons
O.P.(KAT).NO.110 OF 2022 :: 5 ::
with disabilities. Thereafter, the Tribunal proceeded to pass the final
order dated 17.12.2021 that is impugned before us. The Tribunal, in
the final order, placed reliance on the actual number of direct
recruitments that were carried out during the period from 1.1.2004 to
31.12.2007 in the category of Agricultural Assistant Grade II, and
arrived at a figure of 20 vacancies [3% of 658 direct recruitments
carried out during the period aforementioned] as available for
appointment from among the candidates included in Annexure A2 rank
list. The relevant findings of the Tribunal are at paragraphs 8 and 9,
which read as follows:
"8. The issue therefore boils down as to the backlog
vacancies which were available during the period from 2004 -
2007 for advice and appointment from physically handicapped
candidates against the 3% quota prescribed under Section 33 of
Act 1 of 1996. As admitted in the reply statement of the third
respondent presented on 6.10.2021 and also the additional reply
statement dated 6.12.2021 filed on 15.12.2021, 658
appointments were carried out to the post of Agricultural
Assistant Grade II during the period from 2004 - 2007. Though
the 3% ratio is to be invoked against the cadre strength, insofar
as the Act was brought into force in 1995 and Annexure A1
notification was issued for filling up the backlog vacancies for
2004 - 2007 pursuant to the Government order, G.O.(P)
No.7/2011/SWD dated 24.01.2011, the ratio had to be invoked
against the appointments carried out during the relevant period.
It is borne out from Annexure A21 seniority list and the
additional reply statement of the third respondent that 658
appointments were made during the relevant period and on
invoking the ratio, 20 vacancies were available for advice and
appointment of physically handicapped persons. As evidenced
from Annexure A3 appointment chart, only 4 advices were
issued, of which one did not join and the NJD vacancy arising
therefrom was also filled up from the list. Therefore, 16 more
O.P.(KAT).NO.110 OF 2022 :: 6 ::
vacancies remained to be filled up to satisfy the 3% quota.
9. This Tribunal as per its interim order dated 22.7.2021
directed provisional reporting of 12 vacancies to the second
respondent which it is admitted has been complied with. Insofar
as these vacancies are provisionally reported and in view of the
finding that 16 more appointments were to be carried out to the
post of Agricultural Assistant Grade II to satisfy the 3% backlog
vacancies for the period from 2004 - 2007, the applicants are
entitled to succeed.
The Original Application is accordingly disposed of
directing the third respondent to intimate 12 vacancies of
Agricultural Assistants Grade II as regular vacancies for advice
and appointment against the 12 provisionally reported
vacancies, within a period of three weeks from the date of
receipt of a copy of this order. On receipt of such intimation,
the Public Service Commission, i.e. the second respondent, will
ensure that advices are issued within a period of two weeks
therefrom. On receipt of the advices, the second respondent
will ensure that the appointment orders are issued without
further delay."
4. We have heard Sri. Unnikrishna Kaimal, the learned
Government Pleader for the petitioner State and Smt. K.P.Geetha
Mani, the learned counsel for the respondents.
5. The submission of Sri. B. Unnikrishna Kaimal, the learned
Government Pleader on behalf of the petitioner is essentially that
when Annexure A4 G.O. together with its Annexure had clearly
indicated that the total number of vacancies available for filling by
persons with disabilities in the Agricultural Department was only 8,
O.P.(KAT).NO.110 OF 2022 :: 7 ::
and 4 out of the 8 vacancies had already been taken up by candidates
for the post of LD Clerk in the Agricultural Department, what
remained for filling up was only 4 vacancies in the post of Agricultural
Assistant Grade II. He points out that the said 4 vacancies were in fact
filled up from candidates in Annexure A2 rank list, and therefore, no
further vacancies were available for offering to the applicants before
the Tribunal. It is also contended that the Annexure A4 G.O. was not
under challenge before the Tribunal, and therefore the Tribunal could
not have adopted a different yardstick for determining the existing
vacancies for filling up from among candidates included in Annexure
A2 rank list.
6. Per contra, the submission of Smt. K.P.Geethamani, the
learned counsel for the respondents is essentially that the Tribunal
proceeded on data that was more relevant for the purposes of the
1995 Act. She makes a pointed reference to the provisions of the said
Act to demonstrate that the obligation under the 1995 Act is to reserve
3 percent of the total vacancies in the cadre strength of the post in
question, and insofar as the Tribunal had gone by the figures relating
to the actual appointments, through the direct recruitment method,
effected between 2004 and 2007, the adoption by the Tribunal of 3%
O.P.(KAT).NO.110 OF 2022 :: 8 ::
of the total recruitments made during the aforementioned period
cannot be faulted, as it was the more realistic and practical method to
determine the number of vacancies that had to be reserved for
disabled candidates. At any rate, she contends that such a
determination of the existing vacancies would accord with the objects
sought to be achieved by the 1995 Act. She also points out that the
method followed by the Tribunal is in accordance with the directions
of the Supreme Court in Union of India and Another v. National
Federation of the Blind and Others - [(2013) 10 SCC 772].
7. On a consideration of the rival submissions, we find force in
the contentions of the learned counsel for the respondents that the
impugned order of the Tribunal cannot be found fault with. The
Tribunal, in our view, has correctly appreciated the object sought to be
achieved by the 1995 Act and proceeded on a more reliable estimation
of the actual vacancies that had to be reported for the benefit of the
persons with disabilities who were included in Annexure A2 rank list.
Vis-a-vis the material relied upon by the Government ie. Annexure A4
Government Order read with the Annexure thereto and the
determination of the vacancies by reference to the actual number of
direct recruitments effected to the post for the period aforementioned,
O.P.(KAT).NO.110 OF 2022 :: 9 ::
we find that the latter was the better method especially in the light of
the object sought to be achieved through the 1995 Act. That being the
case, we are of the view that the directions in the impugned order of
the Tribunal do not call for any interference. We therefore uphold the
said order of the Tribunal, and dismiss the O.P.(KAT) as devoid of
merit. The petitioner shall take steps to comply with the directions of
the Tribunal within an outer time limit of three months from the date
of receipt of a copy of this judgment.
The O.P.(KAT) is dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
prp/17/1/23
O.P.(KAT).NO.110 OF 2022 :: 10 ::
APPENDIX OF O.P(KAT).NO.110/2022
PETITIONER ANNEXURES:
Annexure A1 A TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 11.04.2014 PUBLISHED VIDE CATEGORY
NO.97/2014 BY THE 2ND RESPONDENT.
Annexure A2 A TRUE COPY OF THE RANK LIST PUBLISHED BY
THE 2ND RESPONDENT ON 04.09.2018.
Annexure A3 A TRUE COPY OF THE APPOINTMENT CHART
SHOWING THE DETAILS OF APPOINTMENT OF 4
PERSONS.
Annexure A4 A TRUE COPY OF THE G.O.(P)NO. 7/2011 /SWD
DATED 24.01.2011.
Annexure A5 TRUE COPY OF THE REPLY DATED 19.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, KASARGOD.
Annexure A6 TRUE COPY OF THE REPLY DATED 09.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, KANNUR.
Annexure A7 TRUE COPY OF THE REPLY DATED 30.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, KOZHIKODE.
Annexure A8 TRUE COPY OF THE REPLY DATED 17.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, WAYANAD.
Annexure A9 TRUE COPY OF THE REPLY DATED 24.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, MALAPPURAM.
Annexure A10 TRUE COPY OF THE REPLY DATED 07.08.2019
O.P.(KAT).NO.110 OF 2022 :: 11 ::
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, THRISSUR.
Annexure A11 TRUE COPY OF THE REPLY DATED 18.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, ERNAKULAM.
Annexure A12 TRUE COPY OF THE REPLY DATED 29.08.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, ALAPPUZHA.
Annexure A13 TRUE COPY OF THE REPLY DATED 30.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, IDUKKI.
Annexure A14 TRUE COPY OF THE REPLY DATED 18.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, KOTTAYAM.
Annexure A15 TRUE COPY OF THE REPLY DATED 01.08 2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE, PATHANAMTHITTA.
Annexure A16 TRUE COPY OF THE REPLY DATED 17.07.2019
RECEIVED FROM PRINCIPAL AGRICULTURAL
OFFICE. KOLLAM.
Annexure A17 TRUE COPY OF THE INFORMATION RECEIVED FROM
2ND RESPONDENTS OFFICE UNDER RTI ON
25.01.2019.
Annexure A18 TRUE COPY OF THE GAZETTE NOTIFICATION DATED
30.12.2016 PUBLISHED VIDE CATEGORY
NO.444/2016 BY THE 2ND RESPONDENT
Annexure A19 TRUE COPY OF THE APPLICATION FILED BY THE
1ST APPLICANT UNDER RTI ON 15.02.2020 AND
THE REPLY DATED 16.03.2020 RECEIVED FROM
THE 3RD RESPONDENTS OFFICE.
O.P.(KAT).NO.110 OF 2022 :: 12 ::
Annexure R3(a) TRUE COPY OF G.O.(MS) NO.35/95/AGRI DATED
13.02.1995
Annexure R3(b) TRUE COPY OF G.O.(RT) NO.93/2019/ AGRI
DATED 12.07.2019
Annexure A20 TRUE COPY OF THE RELEVANT PAGES OF THE LAST
APPOINTMENT CHART DOWNLOADED FROM THE 2ND
RESPONDENTS WEB SITE.
Annexure A21 A TRUE COPY OF THE RELEVANT PAGES OF THE
PROCEEDINGS NO.S.E.(2)3366/12 DATED
30.09.2013 AND FINAL SENIORITY LIST OF
AGRICULTURAL ASSISTANT AS ON 28.02.2011
ISSUED BY THE 3RD RESPONDENT.
Exhibit P1 TRUE COPY OF THE OA (EKM) NO.630/2019 ALONG
WITH ANNEXURES.
Exhibit P2 TRUE COPY OF THE MISCELLANEOUS APPLICATION
M.A.(EKM) NO.2288/2019 ALONG WITH
ANNEXURES.
Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY
THE 3RD RESPONDENT DATED 31.12.2019
Exhibit P4 A TRUE COPY OF THE REJOINDER DATED
06.02.2020 FILED BY THE APPLICANTS ALONG
WITH ANNEXURES
Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY
THE PSC DATED 04.08.2020
Exhibit P6 TRUE COPY OF THE MISCELLANEOUS APPLICATION
MA(EKM) NO.1128/2020 FILED BY THE APPLICANT
WITH ANNEXURE.
Exhibit P7 TRUE COPY OF REPLY STATEMENT FILED BY THE
3RD RESPONDENT ON 11.11.2020, EXPLAINING
THE DATE OF OCCURRENCE OF VACANCIES WITH
O.P.(KAT).NO.110 OF 2022 :: 13 ::
ANNEXURES.
Exhibit P8 A TRUE COPY OF THE MISCELLANEOUS
APPLICATION MA (EKM) NO.1798/2020.
Exhibit P9 A TRUE COPY OF THE MISCELLANEOUS
APPLICATION MA(EKM) NO.95/2021.
Exhibit P10 A TRUE COPY OF THE ADDITIONAL REPLY
STATEMENT FILED BY THE 3RD RESPONDENT DATED
09.12.2021
Exhibit P11 TRUE COPY OF THE ORDER DATED 17.12.2021 IN
OA(EKM) 630/2019
RESPONDENTS EXHIBITS:
Exhibit R1(B) True copy of the Interim Order dated
22/07/2021 in O.A. (EKM) No. 630/2019
issued by the Kerala Administrative
Tribunal
Exhibit R1(C) A true copy of the relevant pages of the
Appointment Chart issued by the PSC on
18/09/2021
Exhibit R1(D) A true copy of the relevant page of the
document downloaded from the website of
Kerala Legislature
Exhibit R1(E) A true copy of the relevant pages of the
Appointment Chart issued by the PSC on 17-
01-2022
Exhibit R1(F) A true copy of the relevant pages of the
Appointment Chart issued by the PSC on 08-
03-2022
Exhibit R1(A) A true copy of the Reply Statement filed by
O.P.(KAT).NO.110 OF 2022 :: 14 ::
the 2nd respondent in O.A. (EKM) No.
630/2019 before the Kerala Administrative
GTribunal
Exhibit R1(G) A true copy of the Letter issued by the
Principal Agricultural Officer, Ernakulam
to the 1st Respondent on 24-05-2022 along
with the details of office in which
vacancies are available.
Exhibit R1(H) TRUE COPY OF THE RTI APPLICATION FILED BY
THE RESPONDNET NO 1 TO 3 ON 19.7.2022
Exhibit R1(I) TRUE COPY OF THE REPLY RECEIVED FROM
PRINCIPAL AGRICULTURE OFFICE DATED
29.7.2022
//TRUE COPY//
