IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WA.No. 1544 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.37281/2007 Dated 06/05/2008 .................... APPELLANTS/ PETITIONERS ------------------------- 1. THE KERALA FEDERATION OF THE BLIND, REG.NO.S.71/1969, KUNNUKUZHY, THIRUVANANTHAPURAM-695 037, REP. BY ITS GENERAL SECRETARY R.SASIDHARAN PILLAI. 2. ROSILY A.O., D/O.LATE OUSEPH, AMBADAN HOUSE, AYYAMPUZHA P.O., ANGAMALY, ERNAKULAM DISTRICT. 3. S.M.SHALI, S/O.C.M.MAKKAR, CHIRAKAPPILLY HOUSE, KAVUMKARA, MARKET P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.K.I.ABDUL RASHEED SRI.ANIL THOMAS.T SRI.K.V.RESHMI SRI.E.D.GEORGE SRI.S.SUBASH CHAND SRI.RAFEEKH.K RESPONDENTS/RESPONDENTS: --------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECREATRY, PERSONAL & ADMINISTRATIVE REFORMS DEPT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM. W.A.NO.1544/2008 3. THE PRINCIPAL SECRETARY, SOCIAL WELFARE DEPT., GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 4. E.S.SIBY, S/O.SUKUMARAN, AGED 32, EDAKALLIL HOUSE, PANNIMATTAM P.O., THODUPUZHA, IDUKKI DISTRICT. 5. P.T.SUNILKUMAR, PARAYIL HOUSE, UDUMBANNUR P.O., AMYAPRA, THODUPUZHA, IDUKKI DISTRICT. 6. MINI JOSEPH, ALUMMOOTTIL HOUSE, PERUMTHOTTI P.O., IDUKKI DISTRICT. 7. SHANTY GEORGE, THAKARAPPILLIL HOUSE, NARAKATHANAM P.O., IDUKKI DISTRICT. 8. BINDUMOL GEORGE, MUKKILLIKATT HOUSE, MELEKUPPACHAMPADY P.O., IDUKKI. 9. JOSE K.KURIAN, KOCHUPARAMBIL HOUSE, EZHUMUTTAM P.O., IDUKKI DISTRICT. 10. SATHIA CHANDRAN S., S/O.KANARAN VATTEKKANDI HOUSE, PERAMBRA P.O., KOZHIKODE. 11. KHALID M.K., S/O.LATE ABOOBACKER, MELEKIZHAKKAYIL, MADAVOOR P.O., KOZHIKODE DISTRICT. 12. BABURAJAN P., S/O.APPUKKUTTY, PARAKKATTU HOUSE, MALAPARAMBA P.O. 13. SHAMSUDHEEN A., ANAPPARAKKAL HOUSE, PANNIKKODE P.O., MUKKAM. 14. MUHAMMED P., PARAPPANKUZHIYIL, MALAYAMMA EAST P.O., KOZHIKODE. 15. C.P.KUNHABDULLA, CHERIYAPUTHANPURAYIL VEEDU, VANIMEL P.O., KALLACHI, KOZHIKODE. 16. RAMACHANDRAN M.K., MUTTANCHERI KEEZHIYEL VEEDU, OLAVANNA P.O., KOZHIKODE. W.A.NO.1544/2008 17. M.K.SAKKEER HUSSAIN, MUNDOLI KUDATTIL HOUSE, KARUVANTHURUTHI P.O., FEROKE, KOZHIKODE. 18. SABITHAKUMARI K., ELAYADATH THAZHATH, KAKKODI P.O., PADINJATTUMURI, KOZHIKODE. 19. SOOSAN JOHN, KARTHANIKKATTU HOUSE, KOODATHAYI P.O., THAMARASSERY, KOZHIKODE. 20. VIJAYAKUMARI K., OTTAPLAVULLATHIL HOUSE, PATHIYARAKKARA P.O., VADAKARA. 21. SUNIL, KIRIYANGAL HOUSE, VAKAYAD P.O., KOZHIKODE. 22. NISHA B.P., SREERAMKRIPA, T.B.ROAD, PERAMBRA, KOZHIKODE. 23. KERALA VIKALANGA PARIPALANA YOGAM, REG. NO. 362/80, KOZHIKODE-673 011, REP. BY ITS PRESIDENT, SRI.K.K.BALAKRISHNAN. 24. SUBHAMOL. L., AGED 31 YEARS, W/O.MURALI, RESIDING AT AMBIKA SADANAM, CHERUVAKKAL P.O., AYROOR, KOTTARAKKARA. 25. T.SATHYADAS, KUNNIL VEEDU, VATTAPPARA P.O., THIRUVANANTHAPURAM. SR.GOVT.PLEADER, SRI.BENNY GERVASIS FOR R1 TO R3. ADV. SRI.K.JAJU BABU FOR R4 TO 9 SMT.M.U.VIJAYALAKSHMI FOR R4 TO R9 SRI.T.S.SHYAM PRASANTH FOR R4 TO R9 SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R25 SRI.PIRAPPANCODE V.S.SUDHIR FOR R25 SRI.P.SREEKUMAR FOR R13 SRI.K.S.MANU (PUNUKKONNOOR) FOR R13 SRI.ANIL THOMAS(T) FOR R23 SRI.NIRMAL. S. FOR R11,17 & 20 SRI.E.D.GEORGE FOR R24 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.1544 OF 2008 ------------------------------- Dated this the 3rd day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioners are the appellants. They approached this Court seeking the following reliefs: “i) call for the records relating to Exts.P5 and P6 and to issue a writ of certiorari quashing the same. ii) issue a writ of mandamus directing the respondents to maintain the ratio 1:1:1 among the orthopaedically handicapped, deaf and dumb and blind in the appointments reserved for the physically handicapped persons as per Ext.P3 order. iii) issue a writ of mandamus directing the respondents to conduct special recruitment for the blind category if sufficient candidates eligible for appointment are not available in the said category, whenever appointment is made to fill up the quota reserved for the physically handicapped persons.” W.A.No.1544/2009 2 2. The 1st appellant is an organisation of visually impaired persons. Appellants 2 and 3 are its members. They are aggrieved by the omission of the Government to set apart 3% of the vacancies in identified posts under it available from time to time which is to be filled up from physically challenged persons in view of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 (hereinafter referred to as 'the Act'). The Act further provides a ratio in filling up of the 3% vacancies, between the orthopaedically challenged, deaf and dumb and visually impaired. Out of the 3% vacancies, 1% vacancies should go for the visually impaired. The appellants represent the grievances of that group of physically challenged persons. 3. The Government issued orders to re-engage physically challenged persons appointed under Rule 9(a)(i) of the K.S. & S.S.R. in Class III and Class IV posts during the period from 15.8.1998 to 15.8.1999. When the said direction was implemented by issuing Ext.P5, the Government provided that the persons on reappointment shall be adjusted against the backlog vacancies that are remaining unfilled in the 3% quota W.A.No.1544/2009 3 set apart for physically challenged persons. The appellants point out that the substantial portion of the beneficiaries of the said direction of the Government to reappoint physically challenged provisional hands are orthopaedically handicapped persons. So, the adjustments of such persons against the backlog vacancies on their reappointment will result in reducing the number of vacancies, which should be filled up by visually impaired persons. So, the appellants felt aggrieved by the direction in Ext.P5. They are also aggrieved by Ext.P6 Government Order. The last paragraph of which reads as follows: “Government have examined the matter in detail and are pleased to order that 30.9.2007 shall be the cut off date for the direct recruitment of physically handicapped persons by the District Collectors so that the backlog vacancies may be considered for the accommodation of the physically handicapped persons whose services are to be regularised as per the Government Order read on 4 th above.” 4. The appellants submit, the above direction will also result in depleting the quota of the visually impaired persons. The learned Single Judge, after hearing both sides, issued W.A.No.1544/2009 4 certain directions to redress the grievances of the appellants. They are contained in paragraph No.15 of the judgment under appeal. The said paragraph reads as follows: 15. In the result, the Government is directed to take steps to implement the following directions: (a): The Government will first identify the different posts in Class III, IV, II and I, suitable for appointment of the physically handicapped persons. Though this has now been done in Appendix to Ext.P3 Government Order, it will be appropriate that comprehensive orders are passed identifying the different posts in the different departments, wherein the 3% of the vacancies will necessarily have to be filled up by physically handicapped persons. This direction is being issued taking note of the fact that Ext.P3 Government Order was issued about 10 years back and it will be appropriate that an updating exercise be done for identifying the different posts and making it current for the purpose of special recruitment. The exercise involving identification of the posts shall be done at the earliest, as undertaken by the learned Advocate General and at any rate, within a period of six months from today. (b) The Government and the Commission shall, in the course of conducting special recruitment, fill up the vacancies to be W.A.No.1544/2009 5 filled up by physically handicapped persons, in such a manner that the internal ratio, as contemplated by Section 33 of the Act, is maintained. The Government shall ensure that one category of physically handicapped persons does not entertain a grievance against another category of physically handicapped persons. As undertaken by the learned Advocate General, orders containing the guidelines to be followed by the Government and the Commission in the manner of such special recruitment shall be issued as early as possible. I refrain from fixing a time limit for this exercise essentially taking note of the submission made by the learned Advocate General that it may not be possible to fix a rigid time for this time consuming part of the exercise. (c) In filing up the vacancies from 2004 onwards, which is to be done by the Commission, the Government and the Commission shall ensure that the internal ratio of 1:1:1 among the Orthopaedically handicapped, hearing impaired and visually impaired, is maintained. (d) Of course, in maintaining the ratio, the Government and the Commission would obviously take note of the peculiarities of the duties attached to a post and a possible inability by a particular category of physically handicapped persons to discharge the duties in the said post. The Government is at liberty to keep these features in mind in W.A.No.1544/2009 6 issuing guidelines in maintaining the internal ratio. (e) The submission made by the learned Advocate General that all the physically handicapped persons who were provisionally engaged between 15.8.1998 and 15.8.1999 will be re-engaged, is recorded and the Government is directed to see that this is implemented without any dilution. (f) Insofar as the vacancies up to the year 2003 are concerned, the Government shall take note of the number of vacancies which ought to have been set apart for visually impaired and hearing impaired persons amongst the said vacancies up to the year 2003, in maintaining the ratio of 1:1:1 and in making a requisition to the Commission to fill up the vacancies from the year 2004, the Government shall ensure that the claims made by any visually impaired or hearing impaired persons, which otherwise could have been satisfied if the ratio of 1:1:1 is adhered to even against the vacancies up to 2003 are, as far as possible, recouped in the course of appointing physically handicapped persons against the vacancies from 2004 onwards. If this exercise requires adjustment of the vacancies which arise beyond 2008 also, then the same shall also be done, to see that the process of recouping is done as completely as possible.” W.A.No.1544/2009 7 Feeling dissatisfied with the above direction and claiming more favourable directions, the present Writ Appeal is filed. 5. We heard the learned counsel on both sides. We notice that the main grievance voiced before us by Sri. K.I.Abdul Rasheed, learned counsel for the appellant is that if the impugned orders are allowed to stand, that will result in vacancies legitimately due to the visually impaired persons being corned by orthopaedically handicapped persons. But, we notice that the directions issued by the learned Single Judge take care of the said grievance, as far as possible. The learned Single Judge has rightly found that the physically challenged persons already reappointed cannot be disturbed. As none of them are before us, we cannot go into the correctness or otherwise of their absorption. But, they have got a share, which is more than due to them, at the expense of the visually impaired persons. The learned Judge has noted the above fact and has given directions to recoup the vacancies lost to the visually impaired while making future recruitments. W.A.No.1544/2009 8 6. In view of the above position, we feel that the grievance voiced by the appellants against the directions issued by the learned Single Judge is unfounded. Therefore, we are not inclined to interfere with the same. But, the learned counsel for the appellants pointed out that the learned Single Judge has not fixed any time limit for fresh recruitment, so that, the vacancies lost to the visually impaired could be recouped at the earliest. We feel that if any further directions are required in this regard, the appellants may approach the learned Single Judge. The Writ Appeal is disposed of as above. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps