IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WA.No. 1217 of 2009 -------------------------------- AGAINST THE JUDGEMENT IN WPC.7895/2008 Dated 23/10/2008 .................... APPELLANT/THIRD PARTY: --------------------------------------- TOMY APRAHAM, PADAYATTIL HOUSE, MARANGADAM DESOM, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.T.N.MANOJ RESPONDENTS/PETITIONER & RESPONDENTS: ------------------------------------------------------------------ 1. THOMAS.P.K., S/O.KUNJUVAREED, PAINEDATH HOUSE, MARANGADAM, PUTHUVAPURAM, KARUKUTTY, ERNAKULAM DISTRICT. 2. THE DISTRICT SUPPLY OFFICER, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT. 3. THE SECRETARY, DEPARTMENT OF FOOD AND CIVIL SUPPLIES GOVERNMENT SECRETARIAT, TRIVANDRUM. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. P.N.SURESH, S/O.ARAYANAN, AGED 44 YEARS, RESIDING AT PULICKAL HOUSE, THEKKUMBHAGOM, TRIPUNITHURA, ERNAKULAM DISTRICT. (ADDL.5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED17.8.2009 IN IA NO.811 OF 2009) R2 TO R4 BY GOVERNMENT PLEADER SRI.SANDESH RAJA SRI.C.K.PAVITHRAN FOR ADDL.R5 SRI.M.X.XAVIER FOR ADDL.R5 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1217 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of December, 2009 JUDGMENT A.K. Basheer, J. This appeal is at the instance of a third party to WP(C) No.7895 of 2008. He has filed this appeal against the judgment in the above writ petition after obtaining leave. He impugns the judgment taking particular exception to the direction issued by the learned Single Judge to treat the vacancy at Karukutty for appointment of an Authorised Retail Distributor for distribution of rationed articles. 2. It is the admitted position that the appellant was appointed as an Authorised Retail Distributor of ARD No.124 in Ward No.8 of Karukutty Grama Panchayat pursuant to Annexure A notification dated October 4, 2007. Annexure B will show that appellant was appointed in terms of the order issued by the Taluk Supply Officer on June 6, 2008. 3. However, the writ petitioner, (he passed away immediately after disposal of the Writ Petition) filed the writ W.A.No. 1217 OF 2009 -:2:- petition contending, inter alia, that the above ARD in Ward No.8 of Karukutty Grama Panchayat ought to have been reserved in favour of physically handicapped persons as provided under Clause 45(2)(a)(v) of the Kerala Rationing Order, 1966. 4. The learned Single Judge upheld the above contention and disposed of the writ petition with certain directions; one of which was that the District Supply Officer shall draw up a list of authorised retail outlets, where vacancies as indicated in the counter affidavit, are presently available. It was further directed that the percentage of reservation to be made available to Physically disabled persons, as mentioned in Clause 45(2)(a)(v) of the Kerala Rationing Order, shall be applied to the said vacancies and every 20th vacancy shall be set apart for a physically disabled person. The other direction was that every 20th vacancy earmarked in this regard shall be identified and reserved for physically disabled persons and a notification specifying the number of vacancies set apart for physically disabled persons shall be published. But the crucial direction to W.A.No. 1217 OF 2009 -:3:- which the appellant takes exception, is with regard to the vacancy at Karukutty. The learned Single Judge directed that the vacancy at Karukutty shall also be subjected to the same process. 5. It may at once be noticed that Annexure A notification with regard to the vacancy at Karukutty was published in the year 2007. It is true that the said vacancy was notified without earmarking it for physically disabled persons as provided under the Clause referred to above. In other words, the said vacancy was open for general category candidates also. Appellant had applied for the said vacancy and he was duly selected and appointed. In that view of the matter, the contention raised by the writ petitioner that the said vacancy also ought to have been reckoned as one available to the physically disabled persons, cannot be countenanced for reasons more than one. First of all, as mentioned earlier, the said vacancy was not earmarked for physically disabled persons. Secondly, the entire vacancies available in the District of Ernakulam were not identified and W.A.No. 1217 OF 2009 -:4:- quota was not fixed as stipulated under Clause 45(2)(a)(v). It is true that every 20th vacancy has to be earmarked for physically disabled persons. But unless and until all the vacancies had been identified and quota and rotation fixed, it cannot be said that the vacancy at Karukutty ought to have been given to the physically disabled persons, especially since the selection process in respect of the said vacancy was afoot since 2007 and the appellant was appointed pursuant thereto. 6. There is yet another aspect of the matter. It is the admitted position that the writ petitioner is no more. He passed away shortly after pronouncement of the judgment by the learned Single Judge. In that view of the matter also, the vacancy at Karukutty need be treated as one which is now available for physically disabled persons. To that extent the direction issued by the learned Single Judge cannot be sustained. 7. In the above facts and circumstances, we hold that the vacancy at Karukutty need not be reckoned as one available for physically disabled persons. The other directions contained in the W.A.No. 1217 OF 2009 -:5:- impugned judgment are not disturbed. The appeal is disposed of in the above terms. S.R. Bannurmath, Chief Justice. A.K. Basheer, Judge. ttb