IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 WA.No. 1523 of 2010() --------------------- (AGAINST THE JUDGEMENT IN WPC.35077/2009 Dated 01/06/2010) .................... APPELLANT(S): PETITIONER ------------------------ LALI.D.S. D/O. D.K.SREEDHARAN, DEVASSERIL ELACKAD.P.O. KURAVILANGAD, KOTTAYAM DISTRICT. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENTS/RESPONDENTS: ----------------------------------- 1. MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS P.O, KOTTAYAM-686560, REPRESENTED BY ITS REGISTRAR. 2. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, SOCIAL WELFARE DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM. 3. NAVAS.O.S., OLICKAL PLAVIL HOUSE, KABINKALLUMMOZHY, ERUMELY.P.O., KOTTAYAM DIST. 686580. R1 BY ADV. MR. T.A. SHAJI, SC, MG UNIVERSITY. R2 BY SR. GOVERNMENT PLEADER BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA.No. 1523 of 2010 APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A : TRUE COPY OF THE DEGREE CERTIFICATE OF THE APPELLANT. ANNEXURE B : TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER FOR THE PGDA. ANNEXURE C : TRUE COPY OF THE INTERIM ORDER DATED 15.12.2009. /TRUE COPY/ P.S. TO JUDGE. J. CHELAMESWAR, C.J & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A. No. 1523 OF 2010 ......................................................................... Dated this the 20th July, 2011 J U D G M E N T J. Chelameswar, C.J. Aggrieved by the judgment dated 01.06.2010 in W.P.(C) No.35077 of 2009, the unsuccessful writ petitioner preferred the instant appeal. The factual matrix of the case and the issue involved in the case are very precisely stated in paragraph Nos.2 and 3 of the judgment under appeal and we would profitably adopt the same. “2. The petitioner is a Graduate. She has completed P.G. Diploma in Computer Application. She is blind. According to her, the percentage of her blindness is 100%. The Medical Board has certified that the petitioner is blind. Mahathma Gandhi University invited applications from suitable candidates for being appointed to the post of Assistant Grade-II. The petitioner applied for the same. After holding a screening test in 2006, the University invited the petitioner to appear for the written test held in 2009. She appeared for the written test. The petitioner was successful in the written test. The petitioner had appeared for the written examination with the help of a scribe, as sanctioned by the University. W.A. No. 1523 OF 2010 2 3. The University issued Ext. P2 notification dated 2.11.2009 directing all the physically handicapped candidates, who had appeared for the written examination, to appear for an interview to assess their suitability to the post. The name of 13 persons were included in Ext.P2 list of which petitioner was No.13. The petitioner appeared for the interview. The University prepared the rank list. It is stated that from out of 13 persons in Ext.P2 list, 8 persons were included in the rank list. All those 8 persons are in the category of Orthopaedically Handicapped. It is not in dispute that more than 200 candidates were selected to the post of Assistant Grade II. The contention of the petitioner is that going by the number of persons selected, at least two of them should be from the category of blind persons. In view of Section 33 of the Act, it is contended that since the University did not adhere to Section 33 of the Act, there was violation of Article 16(1) of the Constitution”. As it can be seen from paragraph 3 extracted above, the appellant's claim is that in view of the language of Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995, at least two persons with visual impairment such as blindness are required to be appointed by the respondent University, as more than 200 candidates were selected to the post of Assistant Grade II by the recruitment process, which is the W.A. No. 1523 OF 2010 3 subject matter of the dispute in the instant appeal. 2. Admittedly, the writ petitioner is a person suffering from 100% disability of vision. On an examination of the legal position and also the facts, as available from the records of the writ petition, the learned single Judge of this Court by the judgment under appeal came to the conclusion that the post of Asst. Gr.II is not a post earmarked for any reservation under the scheme issued by the Government in Ext. P5. Ext.P5 is a Government Order bearing No. G.O.(P) NO. 20/98/P & ARD dated 14.07.1998. Consequentially, it is held by the learned Judge that the writ petitioner is not entitled to claim any reservation to the post of Asst. Gr.II. Paragraph 19 of the judgment reads as follows: “19. In the light of the facts stated in the counter affidavit and additional counter affidavit, it cannot be said that Assistant Grade II is a post earmarked for any reservation under the scheme issued by the Government in Ext.P5. Therefore, the petitioner is not entitled to claim any reservation to that post under Section 33 of the Act.” 3. The Persons with Disabilities (Equal Opportunities, W.A. No. 1523 OF 2010 4 Protection of Rights and Full participation) Act, 1995 (hereinafter referred to as the 'Act'), is an enactment made by the Parliament pursuant to an international treaty obligation. Under section 33 of the Act, it is mandated that the “appropriate Government”* shall appoint in every “establishment”** (both are defined expressions under the Act) persons with disability at least to the extent of not less than 3% of the vacancies. Though the expression 'disability' ------------------------------------------------------------------------ *Sec.2(a) - “appropriate government” means.- (i) in relation to the Central government or any establishment wholly or substantially financed by that Government or a Cantonment Board constituted under the Cantonment Act, 1924 ( 2 of 1924), the Central Government; (ii) in relation to a State Government or any establishment wholly or substantially financed by that Government or any local authority, other than a Cantonment Board, the State Government; (iii) in respect of the Central Co-ordination Committee and the Central Executive Committee, the Central Government' (iv) in respect of the State Co-ordination Committee and the State Executive Committee, the State Government.” ** Sec.2(k) - “establishment” means a corporation established by or under a Central Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local W.A. No. 1523 OF 2010 5 authority or a Government company as defined in Section 617 of the Companies Act 1956 (1 of 1956) and includes Departments of a Government”. is defined under Section 2(i) to take within its sweep 'eight' categories of disabilities, for the purpose of conferring the benefit of reservation under Section 33, only three categories of disabilities are made eligible for such reservation. Section 33 reads 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 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. Provided 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.” W.A. No. 1523 OF 2010 6 Such reservation is required to be provided in every establishment against the posts identified for each one of the three disabilities mentioned above. The identification contemplated under Section 33 is required to be done by the 'appropriate Government'. Further such an identification is required to be periodically reviewed in intervals not exceeding three years as stipulated under Section 32. Section 32 is extracted below: “32. Identification of posts which can be reserved for persons with disabilities:- Appropriate Governments shall - (a) identify posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years , review the list of posts identified and up-date the list taking into consideration the developments in technology.” Under the Scheme of the Act, the identification by the Government is not completely at the discretion of the Government. In the context of the instant appeal, the respondent University is an establishment with reference to which the Government of Kerala indisputably is the appropriate Government. However, under the Scheme of the Act, the W.A. No. 1523 OF 2010 7 decision making process under section 32 is to be guided by the policies and recommendation evolved by two Bodies known as State Co-ordination Committee and State Executive Committee contemplated under the Act. 4. Under Section 13 of the Act, a State Co-ordination Committee, whose composition is elaborately specified under the said Section, is to be constituted by the State Government. The functions of the said Committee are enumerated under Section 18*. ------------------------------------------------------------------------- * Sec.18. “Functions of the State Co-ordination Committee:- (1) Subject to the provisions of this Act, the function of the State Co-ordination Committee shall be to serve as the state focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by persons with disabilities. (2) In particular and without prejudice to the generality of the foregoing function the State Co-ordination Committee may, within the State perform all or any of the following functions, namely:- (a) review and coordinate the activities of all the departments of Government and other Governmental and non- Governmental Organisations which are dealing with matters relating to persons with disabilities. (b) develop a State policy to address issues faced by persons with disabilities. (c) advise the State Government on the formulation of W.A. No. 1523 OF 2010 8 policies, programmes, legislation and projects with respect to disability; (d) review, in consultation with the donor agencies, their funding policies from the perspective of their impact on persons with disabilities; (e) take such other steps to ensure barrier-free environment in public places, work places, public utilities, schools and other institutions; (f) monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of persons with disabilities; (g) to perform such other functions as may be prescribed by the State Government”. The primary purpose of the Committee is to serve as the State focal point on disability matters and facilitate the continuous evolution of a comprehensive policy towards solving the problems faced by 'persons with disabilities'. One of the functions of the said Committee, as specified under Section 18(2)(b) is to develop the State policy to address issues faced by the persons with disabilities. 5. Section 19 contemplates constitution of 'State Executive Committee' with specified membership thereunder. Section 20 prescribes the functions of the Executive Committee. Section 20 reads as follows: “20. Functions of the State Executive Committee:- W.A. No. 1523 OF 2010 9 (1) The State Executive Committee shall be the executive body of the State Co-ordination Committee and shall be responsible for carrying out the decisions of the State Co- ordination Committee. (2) Without prejudice to the provisions of sub-section (1), the State Executive committee shall also perform such other functions as may be delegated to it by the State Co- ordination Committee.” 6. By Exthibit P5 Government order dated 14.07.1998, the Government of Kerala provided for reservation of 3% of vacancies in Class III and IV posts in Public Services in favour of 'Physically Handicapped Persons' (an expression advised to be avoided ever since the Beijing Conference, referred to earlier and the expression 'Persons with Disabilities' is preferable). Under the above mentioned Government Order, the post in question, which the appellant aspires, is not a post which is identified for the purpose of providing reservation in favour of 'Persons with disabilities', irrespective of the category. 7. However, the identification process of the posts suitable W.A. No. 1523 OF 2010 10 to be filled up by persons with disabilities did not end in the State of Kerala in the year 1998. It must be placed on record with some satisfaction that the State of Kerala is one of the few States, which undertook the exercise of periodic review contemplated under Section 32(b) of the Act. Without going into full history of such review, it is sufficient to notice for the purpose of the instant appeal that by the Government Order dated 10.02.2009 (G.O.(P)No.11/2009/SWD), the Government of Kerala identified a large number of posts categorised under Class III and IV of the Subordinate Services of the Kerala to be the posts suitable for being filled up by Persons with Physical Disabilities. Such identification extends to 156 categories of posts in Class III and 44 posts in Class IV. Such an identification was preceded by consultation with the Co-ordination Committee contemplated under Section 13. Even under the said identification process, the post of an 'Assistant' is considered to be a post where reservation is to be provided for- however, only in favour of three categories of persons enumerated in the said order. They are: i) Disability of Orthopaedic - Upper Extremities or Lower W.A. No. 1523 OF 2010 11 Extremities, ii) Hearing impairment iii) Partial blindness The relevant entry reads as follows: Sl.No. Name of post Department Category 14 Assistant Common category Orthopaedic-Upper Extremities (Minor). Lower Extremities, Deaf, Partially Blind. 8. Therefore the post of Assistant either in the service of the Government of Kerala or in a statutory body like respondent University, is not one of the posts identified where mandatory requirement of 1% is to be provided in favour of the persons with complete loss of vision, but only persons with 'partial blindness' are entitled to the benefit of reservation. Admittedly, appellant is a person with 100% impairment of vision. In the circumstances, the petitioner/appellant cannot claim the benefit of reservation under the Act. The learned Judge has, therefore, rightly dismissed the writ W.A. No. 1523 OF 2010 12 petition. We see no reason to interfere with the same. 9. However, it is brought to our notice that the appellant had in fact worked with the respondent University, approximately for two years on a temporary basis. The relevant portion of the pleadings reads as follows: “The 1st respondent M.G. University appointed the candidates from the list of Employment Exchange after an interview. At that juncture appellant also included in the same. Initially the appellant was appointed in the Asst.Gr.II (temporarily) on daily wages by the 1st respondent in May 2004 for a period of 179 days. Subsequently the appellant worked in Asst. Gr.II (Temporarily ) in MG University on 3 more occasions.” 10. The assertion made in this regard by the appellant is not controverted, in which case, though the petitioner/appellant is not entitled for a reserved slot, under the provisions of the Act, she is entitled to compete for a general post. Considering the fact that her service was utilised for almost a period of two years by the respondent University in different capacities, we deem it appropriate to W.A. No. 1523 OF 2010 13 direct that the respondents may consider the case of the appellant in an open category post with due regard to her experience and ability demonstrated by her earlier service, sympathetically, if necessary, by granting relaxation of upper age limit for the service. J. CHELAMESWAR CHIEF JUSTICE. P.R. RAMACHANDRA MENON JUDGE. lk/vku.