IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 30TH OCTOBER 2009 / 8TH KARTHIKA 1931 WP(C).No. 21924 of 2009(I) ------------------------------------- PETITIONER: ------------------- KANEESH.C.K,CHEKKOTTIL(H), THRIKARPETTA(POST)MEPPADI (VIA), WAYANAD DISTRICT. BY ADV. MR.M.P.ASHOK KUMAR. RESPONDENTS: ------------------------ 1. STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT SOCIAL WELFARE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGIONAL OFFICER,KERALA PUBLIC SERVICE COMMISSION,REGIONAL OFFICE,KOLLAM-1. R1 BY GOVT. PLEADER MR. BIJOY CHANDRAN, R2 BY MR.ALEXANDER THOMAS,S.C,KPSC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/10/2009, THE COURT ON 30/10/2009 DELIVERED THE FOLLOWING: prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 21924 of 2009-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of October, 2009. JUDGMENT The petitioner is an applicant to the post of Laboratory Assistant in the Vocational Higher Secondary Education Department. He is included as rank No.1 in the supplementary list for Ezhava in Ext.P1 rank list. He is a physically handicapped candidate and accordingly he had produced necessary documents before the second respondent. 2. The petitioner is having 45% permanent disability due to high myopia with degeneration and belongs to the category of PH Low Vision. The petitioner maintains that he is entitled to get appointment under the quota reserved for physically handicapped persons which right is recognized under Section 33 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995. Ext.P3 Govt. Order is relied upon in support of the argument that the Government is bound to reserve 3% of the vacancies for persons with disability of which 1% each shall be reserved for persons suffering from: (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy. The petitioner had been working as Laboratory Assistant through Employment wpc 21924/2009 2 Exchange, at different periods which is evident from Exts.P4 and P5 series orders. 3. It is the contention of the petitioner that even though 17 physically handicapped candidates were advised against the 3% reservation out of the 570 vacancies reported, blind persons were totally avoided and the vacancies reserved for blind against serial Nos.1, 4, 7, 13 and 16 were passed over to other physically handicapped categories. Ext.P6 is produced in support of the above plea. 4. The Public Service Commission has filed a counter affidavit. It is pointed out that even though by Ext.P3 Govt. Order, the Government implemented a scheme for reserving 3% vacancies in Class III and Class IV posts in public services for appointment from physically handicapped persons, the said Govt. Order did not recognize blind or partially blind as eligible for the 3% reservation for the post of Lab Assistant and hence that category was not considered for physically handicapped reservation scheme. It is pointed out that Ext.P3 Govt. Order itself specifies that appointment should be in the posts identified for each disability. It is further pointed out that during early years, the Government had not prescribed any guidelines and only after publication of Ext.P3 alone, the Public Service Commission could take steps in the matter. Accordingly, wpc 21924/2009 3 physically handicapped candidates will be advised against serial Nos.33, 66 and 99 in a cycle of 100 vacancies on out of turn basis from the persons suffering from: (i) blindness, (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy respectively for those posts identified for each category. Thus, 17 vacancies (3% of 570 reported vacancies) due for the physically handicapped candidates under this scheme was compensated with the freshly reported 87 vacancies on 29.5.2009 from the separate list prepared for this purpose. 5. It is further pointed out in the counter affidavit that the Government recognized partially blind persons also as suitable for the post of Lab Assistants in Vocational Higher Secondary Education Department, as per G.O.(P) No.11/09/SWD dated 10.2.2009 and the Commission has therefore issued guidelines for implementing the provisions of the above Govt. Order to the effect that a separate PH list shall be supplemented with the ranked list published after 10.2.2009. As the rank list herein was published prior to the said date, the same is not available to the petitioner. 6. Shri M.P. Ashok Kumar, learned counsel for the petitioner submitted that the non implementation of the Govt. Orders which were being issued from time to time will result in denial of justice to the petitioner who is entitled to get the benefit of Section 33 of the Central Act. wpc 21924/2009 4 It is submitted that the stand taken by the Commission that the benefit to physically handicapped candidates having blindness for appointment to the post of Lab Assistants can be enforced only in respect of ranked list published on 10.2.2009, cannot be supported. It is pointed out that a reading of Ext.P3 itself will show that the Government as per various orders, have ordered to entrust the selection process of physically handicapped persons to the 3% earmarked vacancies from 2004 onwards in Class I, Class II, Class III and Class IV posts in public service to the Kerala Public Service Commission. This was based on the directions issued by this court in various judgments, to provide such reservation in accordance with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. It is submitted that therefore the benefit allowable to the persons suffering from blindness or low vision as provided in Ext.P3 cannot be denied to the petitioner as the rank list in question was effective from 10.6.2008. 7. Shri Alexander Thomas, learned Standing Counsel explained the position with reference to the various orders. The stand taken by the Public Service Commission is that without the Government identifying the posts, the Commission could not have implemented the provisions in its true letter and spirit. Ext.P3 scheme is having an appendix wherein various posts wpc 21924/2009 5 have been identified in Annexures I and II. But the post of Lab Assistant is not set apart for the blind, going by category 2 of Annexure II. Only in the later order alone, the Government identified certain posts to which reservation has to be made effective. 8. One thing that is discernible from the Government Orders is that emphasis has been laid by the Government for implementation of the provisions of the Central Act whereby 1% each shall be reserved for persons suffering from blindness and low vision, hearing impairment and loco motor disability or cerebral palsy. It is clear that 3% vacancies were earmarked from 2004 onwards in various posts, but of course, identification of posts was under different orders issued by the Government. In G.O.(P) No.11/2009/SWD dated 10.2.2009 the Government accepted the categories of posts identified by the Expert Committee as suitable for appointment of physically handicapped candidates. This was after examining the various aspects including the views of the expert committee appointed by the Government as well as the State Commission for Persons with Disabilities, etc, it was ordered thus: “The Kerala Public Service Commission will advise physically disabled candidates from the rank lists for the said categories of posts prepared by the Commission against the 3% quota reserved for wpc 21924/2009 6 the physically disabled candidates.” There is nothing to show that the Government ordered the Commission to implement the same in respect of ranked lists published from 10.2.2009 onwards alone. Herein, the stand taken by the Commission is that any amendment by way of fresh Government Order can take effect only to future selections alone and therefore can apply only to the rank list published from 10.2.2009. 9. Learned counsel for the petitioner relied upon a judgment of the Delhi High Court in Delhi Development Authority v. Omvati Kalshan (2008 (1) KLT SN 55, C. No.55) to contend for the position that a cut off date cannot be specified in such cases as there is a constitutional obligation to implement the provisions of the Central Act. It was held thus in the above decision: “The Act is undoubtedly a beneficial legislation which has been enacted with the avowed object of eliminating discrimination against persons with disabilities. It is not as if prior to the coming into force of the Act, it was perfectly valid for persons with disabilities to be discriminated against and that the obligation to eliminate such discrimination arose only after coming into force of that Act. An approach of this nature to the interpretation of a beneficial statute would defeat the very purpose of such a law. The Act only acknowledges the constitutionally unacceptable discrimination wpc 21924/2009 7 practised against the disabled for many years and seeks to correct that discrimination by unambiguously casting a positive obligation on the State and authorities of State to eliminate such discrimination. In other words, there is no “cut-off date”, as it were, for recognizing and eliminating discrimination. A constitutional obligation has been operationalised by the statutory instrument of the Act. The obligation of conduct of the state has two facets. One is a negative obligation i.e., not to discriminate against the disabled only on account of their disability. The other is a positive one. The state is enjoined to act affirmatively to remove an existing discrimination. The various provisions of the Act indicate that the Act encompasses both facets of State obligation. It would defeat the objective of the Act if it were to be constricted in the “prospective-retrospective” limitation.” 10. The matter, therefore, will have to be examined in the light of the various judgments of this court referred to in the Govt. Orders whereby the provisions of the Central Act were ordered to be implemented. The question therefore is that whether the Public Service Commission is right in restricting the right to blind persons, only in respect of the rank list published after 10.2.2009, in respect of the post to which persons like the petitioner seeks appointment. 11. The matter requires consideration by the Government itself, since it relates to the implementation of the various Govt. Orders for wpc 21924/2009 8 granting the benefit to physically handicapped candidates, which also is in accordance with the beneficial legislation. 12. Therefore, there will be a direction to the first respondent to take a decision in regard to the crucial question whether the provisions of G.O. (P) No.11/2009/SWD dated 10.2.2009 recognising partially blind persons also as suitable for appointment as Lab Assistants in Vocational Higher Secondary Education Department, need be implemented in respect of the ranked list published after 10.2.2009 only. 12. An appropriate decision shall be taken by the first respondent after hearing the petitioner and in consultation with the Public Service Commission, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/