IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 21445 of 2009(A) -------------------------- PETITIONER(S): --------------- 1. RANI GEORGE, WIFE OF VINOD THOMAS, ADHIRAKULANGARA, VELLAYAMKUDI P.O., KATTAPANA. 2. INDRAN.K.N. SON OF NARAYANAN.K.V., KALLIKADAVIL HOUSE, MUTHRATHIKARA P.O., PARAPPUKARA, THRISSUR. 3. PRASANTH.R. SON OF RAJAGOPALAN NAIR, MANNUR HOUSE, KOTTAYKAKOM P.O., HARIPAD. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.V.JOHN MANI RESPONDENT(S): --------------- 1. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 2. DIRECTOR, VOCATIONAL HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 4. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. BY SRI. A.J. VARGHES, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 21445 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of August, 2009 J U D G M E N T The petitioners herein are orthopedically handicapped candidates. The first petitioner is an applicant to the post of Higher Secondary School Teacher(Commerce)(Sr) and 2nd and 3rd petitioners are the applicants for the post of Higher Secondary School Teacher(Commerce)(Jr). They are aggrieved by Ext.P6 circular issued by the Public Service Commission whereby a detailed guidelines have been adopted for the implementation of 3% earmarked vacancies to all categories namely Classes I to IV for PH candidates. The specific challenge made in the writ petition is against clauses 6 and 15 of the circular. 2. As directed by this Court, the 3rd respondent filed an affidavit. It is explained in the affidavit that the contention raised by the petitioner is against the legislative mandate of the Parliament as contained in Section 33(1) and Section 36 of the Central Act. For easy reference Para 4 and 5 are extracted WPC.No. 21445 OF 2009 : 2 : below: 4. It is submitted that the prayer in the above Writ Petition is for a certiorari to quash clauses (6) & (15) of Ext.P6 Circular No.21/2008 dt. 19.8.2008 issued by the KPSC and for incidental directions. The above said prayer of the petitioner is against the legislative mandate of the Parliament as contained in Sec.33(1) and Sec.36 of “The Persons with disabilities (Equal opportunities, Protection of rights and full participation) Act 1995” As per Sec.33 (1) of the Act, every appropriate Govt. shall appoint in every establishment such percentage of vacancies not less that 3% for persons or class of persons with disability of which 1% 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. Further it is submitted that Sec.36 of the above said mandates as follows:- “wherein any recruitment year any vacancy under Sec.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 3 categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by WPC.No. 21445 OF 2009 : 3 : 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 3 categories with the prior approval of the appropriate Govt.” 5. It is further submitted that Clause 6 of Ext. P6 Circular reads as follows:- “If any vacancy under item 4 above cannot be filled up due to non availability of a suitable person with disability or for any other sufficient reason, such vacancy shall be kept unfilled for re- notification. If in the re-notification also, suitable person with disability is not available it shall first be filled up by interchange among the 3 categories and only when there is no person with disability available for the post, the vacancy shall be filled up by appointment of a person other than a person with disability”. It can thus be seen that Clause 6 of Ext.P6 Circular only reiterates the provisions contained in Sec.36 referred to above and it is only for effectuating the provisions of the Act that the said clause 6 of Ext.P6 has been issued. The contentions of the petitioner, are thus against the provisions of the above said Act. Further it is submitted that though Clause 15 of Ext.P6 stated that the above directions are given effect from 1.1.2008, the Commission later issued Ext.R3(a) Circular No.22/2008 dt.15.9.2008 wherein clause 3 thereof has stipulated that Clause 15 of Ext.P6 is WPC.No. 21445 OF 2009 : 4 : modified to the extent that “the above directions are given effect to the ranked list published on or after 1.1.2008” Thus the provisions of Ext.P6 circular are given effect to in respect of ranked list published on or after 1.1.2008. The aspects regarding the modalities for filling up the backlog vacancies prior to 1.1.2008 has already been stated in the previous paragraph. Thus there is no merit in the challenge sought to be raised against Clause 15 of Ext.P6 as well. It is most respectfully submitted that the contentions of the petitioner are made without adverting to the relevant Govt. Orders and the provisions of the above said Act and the prayers of the petitioner are unsustainable. 3. Ext.R3(a) has been produced by which clause 15 of Ext.P6 has been modified to the effect that 'The above directions are given effect to the Ranked list published on or after 01.01.2008”. It will be clear from Ext.R3(a) that Ext.P6 will have no application as regards Ext.P4 and P5 rank lists. Recording the averments contained in the affidavit of the third respondent, the writ petition is disposed of. ( T.R. RAMACHANDRAN NAIR, JUDGE) jma