IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 15777 of 2010(V) -------------------------------------- PETITIONER(S): ---------------------- 1. MUHAZIN P., PANACKAL HOUSE, VARAPETTY P.O., KOTHAMANGALAM. 2. K.P. SHAMEENA, KARUNNAPILLIYIL, RAJAGIRI P.O., KALAMASSERRY P.O., ERNAKULAM. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENT(S): ------------------------ 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRTARY TO GOVERNMENT, P & A.R (A-C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER PUBLIC WORKS (P&B) THIRUVANANTHAPURAM. 4. THE KERLA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, P.S.C. OFFICE, PATTOM PALACE P.O., THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. SANDESH RAJA R4 BY ADV. SRI.ALEXANDER THOMAS,SC,KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON 8/10/2010 DELIVERED THE FOLLOWING: sts WP(C) NO.15777/2010-V APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE NOTIFICATION DATED 05-08-2009 P2 COPY OF THE G.O.(P) NO.20/98/ P & ARD DATED 14/7/1998. P3 COPY OF THE G.O.(P) NO. 46/2008/ SWD DATED 19/7/2008 P4 COPY OF THE APPOINTMENT CHART FROM THE 4TH RESPONDENT'S WEB SITE DT. 16/8/2009. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 15777 of 2010-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of November, 2010. JUDGMENT The question arising herein is how the 3% quota for physically handicapped candidates, has to be distributed by the Public Service Commission, that too in the absence of one of the categories, viz. blind. 2. The petitioners are physically challenged persons with Locomotor Disability. The rank list is one for appointment of Draftsman Grade I/Overseer Grade I (Civil) in the Kerala Engineering Subordinate Service. It came into force on 5.8.2009. In the supplementary list for physically challenged persons, three candidates with hearing impairment and 16 candidates with Locomotor Disability have been included separately. The same has been produced as Ext.P1 herein. The petitioners are rank Nos. 9 and 11 in the second part of the said list. 3. Ext.P3 is the Government Order fixing the turn of physically handicapped persons in the quota of 3% reservation for them. Going by the said order, serial Nos. 33, 66 and 99 in the cycle of 100 vacancies, have been fixed for the three categories, viz. persons suffering from blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. wpc 15777/2010 2 The petitioners challenge the turn provided, viz. 66 for physically handicapped candidates, on the plea that going by the relevant provisions of the Kerala State and Subordinate Service Rules, the same is earmarked for a community category viz. Muslims. It is therefore pointed out that the earmarking of the said turn will go against the express provisions of the KS & SSR and the Government Order to that extent cannot be held legal. 4. It is their further case that even though 357 vacancies have been reported and in spite of the absence of persons in the blind category, the petitioners who are ranked 9 and 11 from among the physically handicapped candidates, have not been advised or appointed. It is further pointed out that from among the list of physically challenged candidates, rank Nos.1, 2 and 8 have been advised from the main list and supplementary list for SC against OBC, LC and SC turns as they held rank Nos.16, 124 and 4 respectively in their respective list. Thus, they have been excluded from the quota of physically handicapped candidates, but even then the petitioners are not being advised. 5. Heard learned counsel for the petitioners Shri S.A. Razzak, learned Standing Counsel for the Public Service Commission, Shri Alexander Thomas and learned Govt. Pleader Shri Sandesh Raja. wpc 15777/2010 3 6. Before going into the respective contentions of the parties, it is profitable to refer to the averments in the affidavit filed by the Public Service Commission. It is stated therein that since the post of Draftsman has not been identified as suitable for blind candidates, only deaf and orthopaedically handicapped candidates were included under List II. Ext.P3 Government Order provides for advice of physically handicapped candidates against turn Nos.33, 66 and 99 in a cycle of 100 vacancies on out of turn basis from the persons suffering from the three categories. In paragraphs 5 and 6 the various details as to how the posts have to be filled up after fixing the turns and the manner in which the candidates have been advised, has been explained and for easy reference, the said paragraphs are extracted below: “5. It is most respectfully submitted that while preparing the rotation, a serial number for the fresh vacancies reported is started and when the number reaches 33, 66, 99 etc. PH candidates are advised against the serial numbers on out of turn basis. These numbers are not assigned to any particular community or open competition category and are meant for reservation for PH candidates only. Since Blind candidates are not eligible for the post of Draughtsman their turns (Serial Numbers 33, 133, 233 etc.) are filled up with other two eligible categories alternatively as shown below: wpc 15777/2010 4 Serial No. Eligible PH category 33 Deaf 133 Ortho 233 Deaf 333 Ortho etc. (as per Circular No.10/2009 issued by the Commission on 25/4/2009) 6. It is most respectfully submitted that in the instant case a total number of 357 candidates were advised (including 2 NCA vacancies reserved for PH Deaf Category that are kept unfilled for notification) for the above post as on 20.5.2010. This includes advice against 27 NJD vacancies. These NJD vacancies (vacancy caused by not joining duty of candidates already advised) are not considered for assigning serial numbers, since they are repetition of the same vacancies already reported. Details of PH candidates advised among the remaining 330 vacancies are shown below: Serial No. Eligible PH Name Rank No. Serial No. category in the appointment 33 Blind passed Dileesh K. R-1 46 over to deaf List II Deaf 66 Deaf Shine Varghese R-2 79 List II Deaf wpc 15777/2010 5 99 Ortho Babu C R-3 112 List II Ortho 133 Blind Shaini Baby T. R-4 146 passed over List II to Ortho Ortho 166 Deaf Nandakumar K. R-3 179 List II Deaf 199 Ortho Shaji T. R-5 212 List II Ortho 233 Blind passed NCA kept over to Deaf unfilled 266 Deaf NCA kept unfilled 299 Ortho Suresh Babu T.K. R6 List II Ortho 7. It is also mentioned that three candidates have been advised from main list/supplementary list from among the physically handicapped candidates. The Non Joining Duty vacancies are not considered for serial numbers rotation worked out for 330 fresh vacancies out of 357 vacancies. It is therefore pointed out that 9 physically handicapped candidates including 2 NCA vacancies kept unfilled, were advised against their turns, viz. serial Nos.33, 66, 99, 133, 166, 233, 266 and 299. It is explained that serial numbers identified for physically handicapped candidates are not wpc 15777/2010 6 reserved for any particular community or open competition category as apprehended by the petitioners. 8. Learned counsel for the petitioners, Shri S.A. Razzak invited my attention to the relevant clauses of Ext.P3 to contend for the position that the earmarking of turn No.66 to physically handicapped candidates itself violates Rule 17(2) of the K.S. & S.S.R. It is pointed out that the Public Service Commission ought to have adopted the alternate method, i.e. by advising the candidates from the other two categories by interchange in alternate turns, viz. hearing impairment and locomotor disability or cerebral palsy. It is therefore pointed out that if the said method was adopted, then the petitioners would have been advised already. It is also contended that once the blind category has been excluded, there is no question of passing over of blind to any of the other categories and keeping the turns 233 and 266 as NCA turns, is also illegal. 9. Rule 15(a) of the KS & SSR specifies that “the integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub- rule (2) of rule 17 shall be as specified in the Annexure to this Part.” Rule 17(2)(a) provides that “the 40% reservation allowed to Other Backward Classes shall be distributed among the different groups of Backward Classes in the following proportion:- wpc 15777/2010 7 “(i) For direct recruitment to posts included in the Kerala Last Grade Service. Out of every 40 appointments, 11 shall be given to Ezhavas, Thiyyas and Billavas. 10 to Muslims, 4 to Latin Catholics and Anglo Indians, 3 to Nadars (Hindu Nadars and Nadars included in S.I.U.C.), 2 to Scheduled Caste Converts to Christianity, 2 to Viswakarmas, 2 to Dheevaras and 6 to Other Backward Classes put together. (ii) For direct recruitment to posts other than those included in the Kerala Last Grade Service. Out of every 40 appointments, 14 shall be given to Ezhavas, Thiyyas and Billavas. 12 to Muslims, 4 to Latin Catholics and Anglo Indians, 2 to Nadars (Hindu Nadars and Nadars included in S.I.U.C.), 1 to Scheduled Caste Converts to Christianity, 3 to Viswakarmas, 1 to Dheevaras and 3 to Other Backward Classes put together.” The contention of Shri Razzak, learned counsel for the petitioners is that going by sub-rule 2(ii) of Rule 17 of the Rules, out of the every 40 appointments, 12 will go to Muslims. In Schedule II of the Rules which is the Annexure as per Rule 15(a), for direct recruitment to posts other than those included in the Kerala Last Grade Service, turn Nos.6, 16, 26, 30, 36, 46, 56, 66, 76, 80, 86 and 96 are for Muslims. It is therefore submitted that turn No.66 has been interfered with by the order Ext.P3 issued by the Government. Thus, the contention is that it is contrary to the statutory rules. 10. Learned Standing Counsel for the Commission explained that Ext.P3 is not contrary to the statutory rules. It is not the turn as per the wpc 15777/2010 8 cycle that is taken out and allotted to the physically handicapped candidates. The provision in Ext.P3 is to the effect that “the Kerala Public Service Commission will advise physically handicapped candidates against Serial Nos.33, 66 and 99 in a cycle of 100 vacancies on out of turn basis from the persons suffering from: (1) blindness or low vision; (2) Hearing impairment; and (3) Loco motor disability or cerebral palsy, respectively in the posts identified for each disability. It is explained that serial Nos.33, 66 and 99 cannot therefore be the turn that is provided under Schedule II to the Annexure. 11. In the counter affidavit filed by the Commission, in para 9 it has been pointed out that “Besides, the serial numbers identified for PH candidates are not reserved for any particular community or open competition category as apprehended by the petitioners.” In the light of the above stand taken by the Commission, there cannot be any basis for the apprehension of the petitioners that turn 66 under Schedule II to the Annexure is affected by Ext.P3. The turn that is available to the communities under the said Annexure and Schedule will not be lost by the operation of Ext.P3 order. In that view of the matter, Ext.P3 is not against Rules 15(a) and 17(2) of the KS & SSR. wpc 15777/2010 9 12. The next question is whether the method adopted by the Commission, in the absence of one of the categories, viz. blind, is correct. It is explained in the counter affidavit that the vacancies are filled up on the basis of the turns and in terms of the priority between three categories in the physically handicapped candidates. Turn Nos.33, 133 and 233 are for persons in the category of blind. As explained in para 5 of the counter affidavit, turn No.33 has been filled up by deaf, turn No.133 has been filled up by Ortho, turn No.233 by Deaf and turn No.333 by Ortho candidates, etc. etc. This is as per Circular No.10/2009 issued by the Commission. A copy of the circular was made available during the arguments, by the learned Standing Counsel for the Commission. The method provided in the circular, as evident from para 5 therein, is as follows: “5. If a PH category is not eligible for a post the turn of such PH category shall be filled up with the other two eligible categories alternatively in the order shown below: Not eligible category Order of allotment Blind Deaf, Ortho, Deaf....... Deaf Ortho, Blind, Ortho...... Ortho Blind, Deaf, Blind.... If two PH categories are not eligible for a post the turns of such PH categories should be filled up with the eligible PH category.” wpc 15777/2010 10 13. Shri Razzak, learned counsel for the petitioners vehemently submitted that the method adopted by the Public Service Commission as explained in para 6 of the affidavit is not the proper one. According to him, since one of the categories, viz. blind is not being considered, there cannot be any passing over of that turn to deaf, ortho, etc. and it should have been implemented on alternate basis, i.e. 33 should go to deaf, 66 to ortho, 99 to deaf, 133 to ortho, etc.etc. It is pointed out that turn Nos.233 and 266 are kept as N.C.A. Turns (No Candidate Available) which also is not justified, since the candidates from the other category are available. 14. As explained by the learned Standing Counsel for the Commission Shri Alexander Thomas and learned Govt. Pleader Shri Sandesh Raja, it is as per the provisions of Section 36 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the Act' for short) as well as Ext.P3 and Circular No.10/2009, the turn of the eligible candidates are worked out and there is no legal infirmity in this matter. Sections 33 and 36 of the Act are therefore relevant. These Sections read as follows:- “33. Reservation of posts.--Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent. for persons or class of wpc 15777/2010 11 persons with disability of which one per cent. each shall be reserved for persons suffering from-- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy, in the posts identified for each disability: Provide that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. 36. Vacancies not filled up to be carried forward.--Where in any recruitment year any vacancy under section 33, cannot be filled up due to non-availability of a suitable person with disability or, for any other sufficient reason, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with disability is not available, it may first be filled by interchange among the three categories and only when there is no person with disability available for the post in that year, the employer wpc 15777/2010 12 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 three categories with the prior approval of the appropriate Government.” Section 33 provides for reservation of not less than 3% of the posts in favour of persons or class of persons with disability, viz. blindness or low vision, hearing impairment and locomotor disability or cerebral palsy. Section 36 and its proviso are important to consider the argument raised by the learned counsel for the parties. Going by the main body of Section 36, if a suitable person with disability is not available in any recruitment year and hence the vacancy could not be filled up under Section 33, such vacancy shall be carried forward in the succeeding recruitment year. This can be done for any other sufficient reason also. If in the succeeding recruitment year also, the same contingency arises, it will have to be filled up by interchange among the three categories and the employer can fill up the vacancy by a person from other categories, viz. persons without any wpc 15777/2010 13 disability only if no person with disability is available for the post in that year. 15. The proviso covers the method by which one among the three categories of physically handicapped candidates cannot be employed in the light of the nature of the vacancies in an establishment. Therefore, the vacancies will have to be interchanged among the three categories. Evidently, the method provided under the proviso has been adopted here, as, herein in the light of the nature of the vacancies, persons having blindness or low vision cannot be employed. Therefore, the method provided under the main body of Section 36 and the other method provided under the proviso will have to be applied strictly as per the contingencies provided. 16. The chart given by the Public Service Commission in their affidavit in para 6 will show that they have implemented the provisions of the circular and the principles referable to proviso to Section 36 by passing over the turn available for blind in respect of the other two categories. As far as turn Nos.233 and 266 are concerned, they are evidently NCA turns of the category deaf and will have to be carried forward and therefore those cannot be filled up by candidates having locomotor disability like the petitioners which is permissible under Section 36. Interchange is possible only if in the succeeding recruitment year the candidate in that particular wpc 15777/2010 14 category is not available. In that view of the matter, the advice of candidates for 300 vacancies cannot be said to be against the provisions of Ext.P3 and the other circulars as well as Section 36 of the Act. If 3% is reckoned also, it can be seen that out of 300 vacancies reported, already 9 turns have been allotted. Advise of further candidates will have to await reporting of further vacancies. During the course of the arguments it was also pointed out that 62 fresh vacancies have already been reported. It is explained by the learned Standing Counsel for the Commission by referring to a communication from the Regional Office of the Commission Ernakulam dated 23/10/2010 that now the rotation starts from 331 and will end at 392. Serial No.333 is to be filled up by a blind candidate. But since PH-Blind is not eligible for this post, it will go to PH-Orthopaedically handicapped. Since candidates upto rank No.6 in the PH-Ortho have already been advised, rank No.7 will be advised. Again, serial No.366 will have to be filled up by PH-Deaf. But since a deaf candidate is not available, it will have to be set apart for NCA notification. The next turn for PH-Ortho arises at serial No.399 for which other sufficient vacancies will have to be reported. Thus, it is explained that there is nothing wrong in the advise made so far. wpc 15777/2010 15 17. Learned counsel for the petitioners submitted that as far as special reservations are concerned, it is well settled that it is a horizontal reservation, whereas the reservation on community basis is considered as vertical and my attention was invited to the decision of this Court in Selvy Valentrina v. State of Kerala (2010 (1) KLT 5). There is no violation of any of the said principles here, evidently. The method as explained by the learned Standing Counsel for the Commission and the learned Govt. Pleader, is a fool-proof one and the chance of any candidate being deprived of consideration is not there. 18. Evidently, therefore, the turn of the petitioners have not arisen. There is no substance in the plea that the petitioners have been denied advice and appointment. The rank list is even now in force, as it came into force only on 5.2.2009. For all these reasons, the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/