IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 WP(C).No. 16116 of 2008(R) ----------------------------------------- PETITIONER: -------------------- SIBIN PAUL, THATTIL VALLACHIRAKARAN HOUSE, MOORKKANAD P.O., THRISSUR-680 711. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI RESPONDENTS: ------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., DEPARTMENT OF SOCIAL WELFARE, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, THRISSUR DISTRICT. 3. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR DISTRICT. 4. THE DISTRICT EMPLOYMENT OFFICER, THRISSUR. 5. RASHEEDA.P.B., POKAKKILATH HOUSE, KOORKUZHI P.O., KAIPAMANGALAM, THRISSUR DISTRICT. BY GOVERNMENT PLEADER SRI. T.T.MOHAMMED R1 TO R4 ADV. SRI.C.HARIKUMAR FOR R5 SRI.ARAVINDA KUMAR BABU T.K. FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16116/2008 R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE PETITIONER FROM THE MEDICAL COLLEGE HOSPITAL CERTIFYING HIS DISABILITY. EXT.P2: COPY OF THE G.O.(P) NO.20/98/P&ARD DTD. 14/07/1998. EXT.P3: COPY OF THE COMMUNICATIONS DTD. 22/11/06 SENT BY 1ST RESPONDENT TO 2ND RESPONDENT. EXT.P4: COPY OF THE COMMUNICATION DTD. 14/07/2007 ISSUED BY THE 2ND RESPONDENT'S OFFICE. EXT.P5: COPY OF THE G.O.(MS) NO.86/05/LBR DTD. 27/06/2005. EXT.P6: COPY OF THE JUDGMENT DTD. 30/08/2007 IN C.APPEAL (CIVIL) NO.3984/2007 ISSUED BY THE HON'BLE SUPREME COURT. EXT.P7: COPY OF THE INTERIM ORDER DTD. 28/09/2007 ISSUED BY THIS COURT. EXT.P8: COPY OF THE JUDGMENT DTD. 29/01/2008 IN WP(C) NO. 21988/2007. EXT.P9(A): COPY OF THE LISTS FORWARDED BY THE DIFFERENT EMPLOYMENT EXCHANGE IN THE DISTRICT. EXT.P9(B): COPY OF THE LISTS FORWARDED BY THE DIFFERENT EMPLOYMENT EXCHANGE IN THE DISTRICT. EXT.P9(C): COPY OF THE LISTS FORWARDED BY THE DIFFERENT EMPLOYMENT EXCHANGE IN THE DISTRICT. EXT.P9(D): COPY OF THE LISTS FORWARDED BY THE DIFFERENT EMPLOYMENT EXCHANGE IN THE DISTRICT. EXT.P9(E): COPY OF THE LISTS FORWARDED BY THE DIFFERENT EMPLOYMENT EXCHANGE IN THE DISTRICT. EXT.P10: COPY OF THE COMMUNICATION DTD. 29/05/2008 ISSUED BY THE 3RD RESPONDENT'S OFFICE. Kss ..2/- ....2..... WPC.NO.16116/2008 R RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE ADVICE MEMO ISSUED BY THE 2ND RESPONDENT DTD. 29/04/2008. EXT.R5(B): COPY OF ORDER A 4-2984/2004 DTD. 17/05/08 ISSUED BY THE 2ND RESPONDENT. EXT.R5(C): COPY OF APPOINTMENT ORDER NO.A5-11353/2006 DTD. 20/05/08 ISSUED BY 2ND RESPONDENT. EXT.R5(D): COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WP(C) 21988/07. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 16116 OF 2008 R = = = = = = = = = = = = = = = Dated this the 23rd day of September 2008 J U D G M E N T The challenge is against Ext. P9, a list of Orthopaedically Handicapped persons forwarded by the 4th respondent for filling up the post of Junior Hindi Teacher earmarked to be filled up from among Physically Handicapped persons giving them the benefit of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2. According to the petitioner, in 2005 there arose a vacancy of Junior Hindi Teacher in Thrissur District in the U.P. School which was set apart to be filled up from among the Physically Handicapped persons. It is stated that when steps were not taken for filling up the vacancy, the petitioner approached this Court and filed W.P.(C) No. 21988/07. In that writ petition a contention was raised by the 2nd respondent therein that the post should be filled up by a Muslim Orthopaedically Handicapped person. The counter affidavit filed by the District Collector in that writ petition is Ext. R5 W.P.(C) No.16116 OF 2008 - 2 - (d). In paragraph 6 of the said counter affidavit it was, inter alia, stated that in the category of Primary Teachers, appointments have already been made under the Direct Recruitment Scheme and that the last appointment made was from the category of “Open Blind”. Proceeding further, it was stated that as per G.O.(MS) No. 86/05/LBR dated 27.8.2005, the next vacancy shall have to be reserved for “Muslim Ortho” and accordingly instructions have been given to the District Employment Officer to submit a panel of eligible candidates belonging to Muslim Ortho category for appointment as Junior Hindi Teacher. 3. When the writ petition was pending before this Court, the Apex Court rendered Ext. P6 judgment wherein it was, inter alia, held that disabled persons constitute a special class by themselves and that question of making any further reservation on the basis of caste or creed or religion, ordinarily may not arise. When the writ petition came up for final hearing, taking note of the law laid down by the Apex Court in Ext.P6 judgment, this Court disposed of the writ petition directing that the District Collector shall fill up the post of Junior Hindi Teacher (Full Time) lying vacant in the Thrissur W.P.(C) No.16116 OF 2008 - 3 - District by appointing the eligible Physically Handicapped person without reference to communal rotation and in accordance with Section 33 of the Act referred to above. It is also to be noticed that in paragraph 2, this Court recorded the submission of the learned Govt. Pleader that if the petitioner is entitled to be appointed in the vacancy then available, petitioner could be accommodated. However, no positive direction has been given in the judgment. 4. Subsequently, Ext. P9 list was forwarded by the 4th respondent to the 2nd respondent, for filling up the post by a suitable physically handicapped candidate. A perusal of Ext. P9 shows that the candidates sponsored by Ext. P9 are Orthopaedically Handicapped persons and it is in view of this, the petitioner who is a blind, has filed this writ petition seeking to challenge Ext. P9. Petitioner submits that there could not have been any reservation as is done in Ext. P9 and that if at all, any reservation is possible, the post has to be reserved for blind persons extending the benefit of Section 33 of the Act. It is also his contention that out of the 3% reservation, although Orthopaedically disabled persons are eligible for 1% reservation, Exts. P4 and P10 would show that there is an W.P.(C) No.16116 OF 2008 - 4 - excess representation from that category. Yet another contention raised by the petitioner is that the post of Junior Hindi Teacher, having been included among the eligible categories only in 2005, and this being the first vacancy the benefit of reservation should go to blind, which is the first among the 3 categories enumerated in Section 33 of the Act. 5. The learned Govt. Pleader submits on the basis of instructions that the alleged over representation is not because one category has been preferred over the other, but as all posts are not suitable for all categories of physically handicapped, when appointments are made, benefit is given to eligible candidates and that it was on account of this reason that the variation in percentage is indicated in Exts. P4 and P10. It is also his case that going by Ext. P3, the Hindi Teachers have been included among the primary teachers and therefore Primary Teachers as a whole will have to be taken as the eligible unit and in the eligible unit the last appointment made was from the category of blind and therefore the next will go to Orthopaedically handicapped. 6. The 5th respondent would also support the plea raised by W.P.(C) No.16116 OF 2008 - 5 - the learned Govt. Pleader. He would also submit that following receipt of Ext.P9, selection process was initiated and concluded and that by Ext. R5(d) he was selected and Ext. R5(c) appointment order was also issued to him. 7. The question that arises for consideration is whether any claim of the petitioner for the benefit of reservation provided in Section 33 has been overlooked. As rightly pointed by the petitioner, it was by Ext. P3 that the benefit of reservation provided in the Act was extended to the post of Junior Hindi Teachers. A reading of Ext. P3 shows that while extending the benefit of the Govt. Order dated 14.7.1998, the category of Junior Hindi Teacher was included in the category of primary teacher for the purposes of reservation under the Act. Therefore primary teacher is the unit and the reservation and its appropriation will have to be worked out in the category of primary teachers. 8. Though the petitioner claimed entitlement for appointment in W.P.(C) No. 21988/07, that writ petition, as already noticed, was disposed of by Ext. P8 judgment directing that the District Collector should take steps for appointment. In Ext. R5(d) W.P.(C) No.16116 OF 2008 - 6 - counter affidavit the District Collector has made his stand known that the benefit of reservation has to be given to Orthopaedically Handicapped Muslim candidates. Following Ext.P6 judgment of the Apex Courts, this Court held that there is no question of any communal rotation applicable. Therefore, all that the District Collector was expected to do so to make appointment among the eligible candidates. 9. Ext. R5(d) counter affidavit also shows that the previous appointment in the category of Primary Teachers was given to a blind candidate. It is on that basis the District Collector held that the next appointment will go to Orthopaedically Handicapped person. This contention of the District Collector has not been interfered with in Ext. P8 judgment. For that reason and also for the reason that the unit of appointment to be worked out from among Primary Teachers, I have to accept the plea of the Govt. Pleader that since the earlier appointment was offered to the blind category, the next appointment will have to go to Orthopaedically disabled persons. Once that plea is accepted, there is nothing erroneous in Ext. P9 whereby the 4th respondent has confined the list to those W.P.(C) No.16116 OF 2008 - 7 - Orthopaedically Handicapped persons. If that be so, selection of those candidates sponsored by Ext. P9 and the consequent selection of the 5th respondent and his appointment does not call for any interference. 10. Petitioner has a further case that one more vacancy of Hindi Teacher (Part Time) is available and earmarked to be filled up from among the Physically Handicapped persons. If this assertion of the petitioner is factually right, since even according to the petitioner present vacancy is earmarked for 2005 the next vacancy will have to go to the blind candidates. Necessarily therefore, in case vacancy is available the District Collector should take steps for filling up the same it will be open to the petitioner to move the District Collector in this behalf. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-