IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 30640 of 2008(V) ----------------------------------------- PETITIONER(S): ------------------------- JAYAKUMAR.V., JAYABHAVANAM, KAVALOTTUKONAM, PERUKAVU P.O., THIRUVANANTHAPURAM. BY ADVS. MR.P.SREEKUMAR, MR.K.S.MANU (PUNUKKONNOOR). RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. SUDHADEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2009 ALONG WITH WPC NO. 18773 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30640/2008 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL BOARD. EXT.P2: COPY OF THE MEMO ASKING THE PETITIONER TO APPEAR FOR THE OBJECTIVE TYPE TEST. EXT.P3: COPY OF THE COMMUNICATION DTD. 15/06/2007 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P4: COPY OF THE REQUEST DTD. 3/07/2008 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI, J ------------------- W.P.(C)s.30640 & 18773/2008 -------------------- Dated this the 27th day of March, 2009 JUDGMENT Petitioners in both the cases are physically handicapped persons, the petitioner in W.P.(C). 18773/2008 being partially blind and the petitioner in the other case being deaf and dumb. Both of them responded to a notification issued by the District Collector, Thiruvananthapuram, for selection to the post of peons in Various Departments, in the quota reserved for physically handicapped persons. They have been selected and both of them had been included in the open category, petitioner in W.P.(C). 30640/2008 being rank No.3 and the other petitioner being rank No.4, in their respective category. But they have not been appointed and hence the writ petition. 2. In the statement filed on behalf of the second respondent in W.P.(C).18773/2008, it is accepted that both the petitioners had been included in the W.P.(C)s.30640 & 18773/2008 2 open category. But they have not been appointed so far due to lack of vacancies. Reference is made to the orders passed by the Government, pursuant to the directions issued by this Court on an earlier occasion for satisfying the claim of other physically handicapped persons, who were appointed on a provisional basis for a period of 179 days between the period from 15.8.1998 to 15.8.1999. 3. The appointment of physically handicapped persons during the said period was in the wake of a policy decision taken by the Government to accommodate physically handicapped persons during the Golden jubilee year of independence. Subsequently, the Government had issued an order directing that persons who were appointed during the said period, and who have completed 179 days during the period of 15.8.1998 to 15.8.1999 shall be regularized in service. The stipulation that only such among the physically handicapped persons who completed 179 days during the period from 15.8.1998 to 15.8.1999 shall be entitled to W.P.(C)s.30640 & 18773/2008 3 regularization, was challenged before this Court. This Court found the same as discriminatory and directed that all person who had rendered provisional service for the stipulated period and who had been appointed during the period from 15.8.1998 to 15.8.1999 be entitled to the benefit of the order passed by the Government, directing regularization of service of the physically handicapped persons. 4. In the wake of such a direction, Government was faced with the situation where several physically handicapped persons had to be accommodated in different class of posts (subject to identification of the post as such) and minimum 3% of the vacancies in public service will have to be set apart for the physically handicapped persons. There is a sub categorization among the visually impaired, deaf and dumb and orthopedically handicapped persons which will also have to be maintained in the appointments to be effected by the Government. It is the stand of the Government that W.P.(C)s.30640 & 18773/2008 4 since the number of vacancies set apart for physically handicapped persons is only 3% of the total vacancies, it has become necessary for the Government to make available the backlog vacancies from 1998 to 1999 onwards for satisfying the claim of physically handicapped persons entitled to be reinstated on the strength of the services rendered during 15.8.1998 to 15.8.1999. That is the reason why the petitioners have not been appointed so far, it is contended. 5. The Government has taken the stand, which is evident from the statement filed by it, that the backlog vacancies from 1998 to 1999 should firs by made available for physically handicapped persons who had been appointed from 15.8.1998 to 15.8.1999 and who are entitled to be reinstated in service. Going by the orders issued by the Government, the change of persons like the petitioners, who had been selected from 2002 to 2003 for securing appointment in the near future, appears to be bleak. The appointment given to the W.P.(C)s.30640 & 18773/2008 5 physically handicapped persons during 15.8.1998 -15.8.1999, provisional in character, cannot be considered as appointment effected strictly keeping in view the reservation of 3% of vacancies for the purpose of securing compliance with the provisions of the Persons with Disabilities (Equal Opportunities, protection of rights and full Participation) Act. It may be open to the Government to accommodate the persons against the said backlog vacancies from 1998 to 99 onwards. But I take note of the fact that the petitioners are selected for appointment against class IV vacancies and they have been selected during 2002-03 and the list to a certain extent, has already been enforced. Selection from 2004 onwards has been entrusted to the PSC and the problem as now faced by the petitioners may not be in existence for the period from 2004 onwards. Persons like the petitioners, who have been included in a partially enforced select list brought into existence for the purpose of the vacancies which had arisen during the period 2002-03, in class W.P.(C)s.30640 & 18773/2008 6 IV vacancies, are a vanishing category. Therefore, in the peculiar facts and circumstances, I am of the view that the respondents should consider the case of the petitioners against the vacancies available for physically handicapped persons in various departments, without the backlog vacancies being treated as set apart for the physically handicapped persons who had rendered provisional service during the period from 15.8.1998 to 15.8.1999 and otherwise entitled to reinstatement in service on the strength of such provisional service. In other words, the persons aspiring for appointment in a class IV post, who had participated in the selection conducted for the year 2002-03, shall be considered separately from the other persons mentioned above. Accordingly, second respondent shall proceed to consider the claim of the petitioners in the light of the observations made above, against the vacancies for the physically handicapped persons available from 2002-03 onwards. Needful shall be done at the earliest at any rate, within three months from the date of receipt of a copy of this judgment. I W.P.(C)s.30640 & 18773/2008 7 make it clear that in considering the claim of the petitioners, second respondent shall go by the list which has been prepared and naturally the persons who find themselves a place above the petitioners in their respective category, shall be entitled to a placement ahead of the petitioners. Writ petitions are disposed of as above. V.GIRI, Judge mrcs