IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 12399 of 2008(A) ------------------------------------ PETITIONERS: ---------------------- 1. V.RAJAN, MADATHU HOUSE, HOUSE NO.2/44, PONNUMANGALAM, NEMOM P.O. THIRUVANANTHAPURAM. 2. K.THULASEEDHARAN, SURESH BHAVAN, KUDAVOOR P.O., THONNACKAL. BY ADV. MR.D.SOMASUNDARAM RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SOCIAL WELFARE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER DILIP MOHAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON 10/07/2009 DELIVERED THE FOLLOWING: WP(C).No. 12399 of 2008(A) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - A TRUE COPY OF THE MEMO DATED 13/12/2006. EXT.P2 - A TRUE COPY OF THE RELEVANT PORTION OF THE SELECT LIST. EXT.P3 - A TRUE COPY OF THE REPLY GIVENH TO THE PETITIONERS EXT.P3(a) - A TRUE COPY OF THE REPLY GIVEN TO THE PETITIONERS EXT.P4 - A TRUE COPY OF THE COMMUNIATION DATED 25/07/07. EXT.P5 - A TRUE COPY OF THE COMMUNICATION DATED 22/05/07. EXT.P6 - A TRUE COPY OF THE COMMUNICATION DATED 20/08/2007. EXT.P7 - A TRUE COPY OF THE COMMUNICATION DATED 19/09/2007. EXT.P7(a) - A TRUE COPY OF THE ORDER 16/01/2008. EXT.P8 - A TRUE COPY OF THE ORDER NO. G.O(P) NO. 77/2007/SWD DATED 29/10/2007. RESPONDENTS' EXHIBITS: EXT.R2(a) - TRUE COPY OF THE G.O.(P) NO. 77/2007/SWD DATED 29.10.2007. EXT.R2(b) - TRUE COPY OF THE G.O(p) NO. 85/2007/SWD DATED 30.11.2007. EXT.R2(c) - TRUE COPY OF THE G.O(P) NO. 50/2007/SWD DATED 15.9.2007. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) No. 12399 of 2008 ................................................. Dated this the 10th day of July, 2009 J U D G M E N T The petitioners are persons with disabilities who claim appointment in the 3% posts reserved for persons with disabilities as per Government order on the subject. For the vacancies of peons reserved for persons with disabilities in the Thiruvananthapuram District, the 2nd respondent conducted a selection and prepared a select list. A copy of which is Ext.P2. According to petitioners, they were selected for appointment to the vacancies which arose up to 31.12.2003. The petitioners are rank numbers 3 and 4 in the select list. The persons at rank numbers 1 and 2 have already been given appointment. The petitioners contend that the other vacancies which arose prior to 31.12.2003 are also to be filled up from the said select list. They rely on Ext.P6 letter from the Deputy Director of Panchayats, whereby, 4 vacancies of peons have been reported. Petitioners are claiming appointment to those vacancies of peons. The grievance of the petitioners in this writ petition is that the W.P(C) No. 12399 of 2008 -2- respondents are not making appointment from the select list on the ground that in 2007, the Government has decided to entrust the PSC with the responsibility of selecting persons to the quota set apart for persons with disabilities also. According to petitioners, that order would be applicable only to vacancies which arose subsequent to 31.12.2003 and the 4 vacancies mentioned in Ext.P6 are vacancies which arose prior to 31.12.2003. Petitioners therefore seek the following reliefs: “ I. Writ of mandamus or appropriate writ direction or order directing the respondents to fill up the 3% posts reserved for handicapped persons in Class IV posts arose in various Government departments in Thiruvananthapuram District upto 31/12/2003 from the select list made by the 2nd respondent as evidenced as Exhibit-P2 select list. II. Writ of mandamus or appropriate writ direction or order directing the respondents that the backlog of vacancies in Government Departments set apart for handicapped persons upto 31/12/2003 shall not to be poolled along with the vacancies of subsequent years and fill up on the basis of Exhibit-P8 Government Order. III. Writ of mandamus or appropriate writ direction or order directing the respondents that list of 603 persons prepared on the basis of G.O.(P) 85/2007/SWD dated 30/11/2007 as evidence by Exhibit P7(a) shall be operated only after exhausting Exhibit-P2 select list made by the 2nd respondent. IV. Writ of mandamus or appropriate writ direction or order directing the respondents to strictly observe ratio of 1:1:1 among blind, deaf and orthopedically handicapped when selections are made for appointments to 3% of posts reserved for handicapped persons.” W.P(C) No. 12399 of 2008 -3- 2. An identical question with reference to Thiruvananthapuram District itself came up for consideration of a learned Judge of this court in W.P.(C)s. 30640 and 18773 of 2008 in which the learned Judge held as follows: “....... But I take note of the fact that the petitioners are selected for appointment against class IV vacancies and they have been selected during 2002-03 and the list to a certain extent, has already been enforced. Selection from 2004 onwards has been entrusted to the PSC and the problem as now faced by the petitioners may not be in existence for the period from 2004 onwards. Persons like the petitioners, who have been included in a partially enforced select list brought into existence for the purpose of the vacancies which had arisen during the period 2002-03, in class IV vacancies, are a vanishing category. Therefore, in the peculiar facts and circumstances, I am of the view that the respondents should consider the case of the petitioners against the vacancies available for physically handicapped persons in various departments, without the backlog vacancies being treated as set apart for the physically handicapped persons who had rendered provisional service during the period from 15.8.1998 to 15.8.1999 and otherwise entitled to reinstatement in service on the strength of such provisional service. In other words, the persons aspiring for appointment in a class IV post, who had participated in the selection conducted for the year 2002- 03, shall be considered separately from the other persons mentioned above. Accordingly, second respondent shall proceed to consider the claim of the petitioners in the light of the observations made above, against the vacancies for the physically handicapped persons available from 2002-03 onwards. Needful shall be done at the earliest at any rate, within three months from the date of receipt of a copy of this judgment. I make it clear that in considering the claim of the petitioners, second respondent shall go by the list which has been prepared and naturally the persons who find themselves a place above the petitioners in their respective category, shall be entitled to a placement ahead of the petitioners.” W.P(C) No. 12399 of 2008 -4- 3. The counsel for the petitioners would contend that petitioners' stand on a better footing since four vacancies have already been identified. 4. The learned Government Pleader would oppose the contentions on the ground that the Government has fixed a cut off date of 30.9.2007 for such appointments. I do not think that the Government can take such a contention in view of the above said decision. I am satisfied that the petitioners are entitled to the very same benefit as the petitioners in the above said decision. Accordingly, the writ petition is disposed of with a direction to the 2nd respondent to give the petitioners' appointments in accordance with their rank in Ext.P2 select list, if the vacancies which have been reported as per Ext.P6 are vacancies which arose prior to 1.1.2004. Orders in this regard shall be issued, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. S. SIRI JAGAN, JUDGE rhs