IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 WP(C).No. 8480 of 2006(H) ------------------------- PETITIONER(S): --------------- THE ERNAKULAM DISTRICT ASSOCIATION OF THE DEAF, ADMINISTRATIVE OFFICE: ROOM NO.16, KALOOR BUS STAND COMPLEX, KOCHI-17 REPRESENTED BY ITS TREASURER, S. GEEVARGHESE. BY ADV. SRI.C.N.SREEKUMAR SRI.AJITH KUMAR P.R. SRI.MANOJ CHANDRAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, PERSONAL & ADMINISTRATIVE REFORMS (ADVICE-C) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE SELECTION COMMITTEE, ERNAKULAM DISTRICT, SCHEME FOR DIRECT RECRUITMENT OF PLHYSICALLY HANDICAPPED PERSONS IN PUBLIC SERVICES, REPRESENTED BY ITS CHAIRMAN & DISTRICT COLLECTOR, ERNAKULAM. 3. THE CHAIRMAN & DISTRICT COLLECTOR, THE SELECTION COMMITTEE, ERNAKULAM DISTRICT, SCHEME FOR DIRECT RECRUITMENT OF PLHYSICALLY HANDICAPPED PERSONS IN PUBLIC SERVICES. 4. THE SPECIAL EMPLOYMENT OFFICER FOR PHYSICALLY HANDICAPPED, ERNAKULAM DISTRICT. 5. THE COMMISSIONER OF PERSONS WITH DISABILITIES, TRIVANDRUM. 6. THE APPELLATE MEDICAL BOARD, PERSONS WITH DISABILITIES, REPRESENTED BY ITS CHAIRMAN, THE SUPERINTENDENT, MEDICAL COLELGE HOSPITAL, TRIVANDRUM. (...2/-) WP(C).8480/06 (2) 7. THE DISTRICT MEDICAL BOARD, ERNAKULAM DISTRICT, PERSONS WITH DISABILITIES REPRESENTED BY ITS CHAIRMAN. *ADDL.RESPONDENTS 8,9 &10: 8. ALL KERALA ASSOCIATION OF THE DEAF, 17, MUNICIPAL STADIUM, THRISSUR-20. REPRESENTED BY ITS PRESENT VICE PRESIDENT SRI.RUSSEL JOY S/O. LATE VARGHESE. (* R8 IMPLEADED AS PER ORDER DT. 22.11.06 IN I.A.15737/06) 9. SECRETARY TO THE GOVERNMENT, SOCIAL WELFARE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 10. THE KERALA PUBLIC SERVICE COMMISSION. (*R9 &10 IMPLEADED AS PER ORDER DT. 15.10.08) ADV. SRI.JOHN JOSEPH(ROY) FOR ADDL.R8 SRI.JIJO ISAAC FOR ADDL.R GOVERNMENT PLEADER MR. K.SANIL KUMAR FOR R.1,4 SRI.ALEXANDER THOMAS,SC,KPSC FOR ADDL.R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).8480/06 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF G.O.NO.20/98/P&ARD, DT.14.7.99 EXT.P2:-TRUE COPY OF G.O(P)NO.11/2003/P&ARD DT.16.5.03 AND ITS ENGLISH TRANSLATION EXT.P3:-TRUE COPY OF REPRESENTATION DT. 29.11.04 AND ITS ENGLISH TRANSLATION EXT.P4:-TRUE COPY OF REPRESENTATION DT.27.12.04 AND ITS ENGLISH TRANSLATION EXT.P5:-TRUE COPY OF THE JUDGMENT IN WP(C).2280/05 DT.29.9.2005 RESPONDENT'S EXHIBITS:- EXT.R4(1):-COPY OF GAZETTE EXT.R4(2):-COPY OF MINUTES EXT.R8(A):-COPY OF MEMORANDUM DT.24.2.06 SUBMITTED BEFORE R1 EXT.R8(B):-COPY OF REPRESENTATION DT.7.12.06 SUBMITTED BEFORE KPSC EXT.R8(C):-COPY OF G.O.NO.277/2005/FIN DT.14.6.05 EXT.R9(A):-COPY OF LETTER NO.13394/R1/07/P&ARD DT.9.8.08 EXT.R9(B):-COPY OF G.O(P)31/08/SWD DT.19.5.08 EXT.R9(C):-COPY OF G.O(P).43/07/SWD DT.9.8.07 okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 8480 OF 2006 ------------------------------ Dated this the 8th day of July, 2009 J U D G M E N T ---------------------- 1. Petitioner is an Association constituted for welfare of 'deaf persons'. Grievance of the petitioner relates to the process of selections already made and being made to public service under the provisions of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 (hereinafter referred to as the Act for short). The allegation is that the selections are not made in proper compliance with the Rules framed by the State Government under the Act namely, the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Kerala Rules, 2000 (hereinafter referred to as the State Rules). It is submitted that the State Government had issued Ext.P1 order providing a scheme for appointment of physically handicapped persons in public service, in Class III and IV posts. In clause (8) and (9) of Ext.P1 the eligibility criteria of the candidates for appointment under that scheme is prescribed as the eligibility stipulated in the Explanations to Rule 9(e) of part II of Kerala State and Subordinate Services Rules 1958 (KS&SSR). But Rule 9(e) does not prescribe any limit with respect to the extent of disability or any particular percentage of disability, as eligibility criteria for appointment. Whereas Section 2(i) of the Act itself defines the word “disability” and further Section 2(l) of the Act defines the word “hearing impairment”. W.P.(C).8480/06 2 As per Section 2(l), “hearing impairment” is defined as “loss of 60 decibels or more in the better ear in the conversational range of frequencies”. Further, in Rule 3 of the State Rules the guidelines for evaluation of various disabilities has been prescribed. As per Rule 3 the criteria prescribed in the notification of the Central Government as amended from time to time, which is appended as Annexure-A to the Rules, is insisted to be followed strictly. But in Ext.P1 the above said provisions of the Act or that of the State Rules has not been taken note of. Subsequently the Government issued a clarification as per Ext.P2 in which it is stated that the eligibility has to be decided as per the definition contained in the Act. According to the petitioner inspite of provisions contained in the Act, the State Rules and the clarifications made in Ext.P2, the Selection Committee as well as respondents 6 and 7 are not strictly following those parameters in the matter of issuing disability certificates as well as in the selection process. Hence they seek for appropriate directions from this Court. 2. The petitioner on an earlier occasion had approached this Court challenging the selections made during the year 2004-05, in violation of the provisions in the Act and State Rules. Ext.P5 is the judgment in that writ petition. But applying the dictum in Gurupal Singh Vs. State of Punjab and others (AIR 2005 SCW 3144), it is found that the petitioner, being an association, has no 'locus standi' to challenge selections made by a competent authority. Therefore the petitioner sought permission to withdraw the writ petition and it was W.P.(C).8480/06 3 dismissed as withdrawn. 3. In the counter affidavit filed by the additional 9th respondent it is specifically stated that the recruitment of physically handicapped candidates to the 3% vacancies reserved by virtue of the Act, has already been entrusted with the Kerala Public Service Commission (KPSC) through Ext.R9(b) Government Order. Therefore from the date of Ext.R9(b) onwards the entire selection process for appointment of physically handicapped candidates against the vacancies reserved under the provisions of the Act, stands entrusted with KPSC. Eventhough the KPSC is impleaded as additional 10th respondent, no counter affidavit is seen filed. However, the grievance raised in this writ petition is not pertaining to any selection made by the KPSC. At the same time the petitioner submitted that the KPSC is also depending on certificates of the Medical Boards for evaluating physical disability of the candidates, in order to decide their eligibility. Therefore the petitioner expressed an apprehension that there will be chances for non-adherence to the parameters prescribed under the State Rules. But in view of the specific provisions contained in the Act and in the State Rules, I do not find any basis for such an apprehension. It goes without saying that the KPSC, now being entrusted with the task of appointments under the Act, is bound to follow the provisions contained in the Act as well as in the State Rules and also bound to ensure that the parameters prescribed therein for assessment of physical disability is strictly followed by any other W.P.(C).8480/06 4 authority with whom such evaluation is entrusted. 4. Under the above mentioned circumstances this writ petition is disposed by issuing directions to the respondents concerned with the selection of candidates to the posts reserved under the Act, to take all necessary steps to ensure that the selection is made on the basis of strict evaluation of the extent of physical disability based on the parameters specified under the provisions of the Act and the State Rules, mentioned above. 5. It is hereby clarified that disposal of this writ petition on the above terms will not in any way affect rights if any available to any members of the petitioner association to challenge any individual appointments already made, in violation of the provisions of the Act or the State Rules, if permissible under law. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb