IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 3261 of 2009(L) ------------------------- PETITIONER(S): --------------- JAYAPALAN.T.P, AGED 38 YEARS, S/O. PADMANABHAN.T.S, THAITHOTTATHIL HOUSE, GURUNATHANMANNU.P.O, P.O. SEETHATHODE, PATHANAMTHITTA. BY ADV. SMT.JEENA JOSEPH SRI.G.D.PANICKER RESPONDENT(S): --------------- 1. DIRECTOR GENERAL, E.S.I CORPORATION, PANCHDEEP BHAVAN, C.I.G ROAD, NEW DLEHI. 2. REGIONAL DIRECTOR, REGIONAL OFFICE, E.S.I CORPORATION, PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR. ADV. SRI.P.SANKARANKUTTY NAIR, SC, ESI CORPN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/04/2009,THE COURT ON 08/04/2009 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3261 of 2009-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2009. JUDGMENT The petitioner who is a physically handicapped person is seeking for a direction to the first respondent to grant appointment in the light of the provisions contained Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. 2. The first respondent invited application for appointment to the post of Lower Division Clerk in various States as per Ext.P2. There were 29 vacancies as far as this State is concerned. The petitioner who is a physically handicapped person, applied for the post in question. Such physically handicapped persons are allowed 10 years of relaxation in age as per Ext.P2. He is included in the rank list as serial No.17 in O.B.C. and serial No.67 in open category. 3. The failure of the respondents to provide a reservation of 3% for physically handicapped candidates is highlighted in this writ petition. It is averred that the respondents should have ear-marked sufficient number of vacancies for appointment of such candidates. 4. In the counter affidavit and in the additional counter affidavit wpc 3261/2009 2 filed by the first respondent, it is mainly contended that the petitioner was an applicant for the open competition test and has already been included in the rank list. The notification allows relaxation of age limit for physically handicapped persons. Only 29 vacancies existed in the Kerala Circle. No vacancy was notified for physically handicapped persons separately as there existed no reserved vacancies for the physically handicapped at the time of notification of vacancies, either brought forward or current vacancies. 4. Relying upon the strength of L.D.C. in the E.S.I. Corporation in Kerala Region, it is pointed out that the sanctioned strength is only 115. 75% of the total sanctioned strength is recruited by open competitive test and 25% is filled by promotion from Group ‘D” staff. Since 29 vacancies alone were available, no vacant post was reserved for physically handicapped as there are three persons working in that category already. It is further pointed out that the notification was never under challenge and the petitioner has filed this writ petition after participating in the various tests. The present one is the recruitment made after an earlier recruitment of the year 1985. In para 6 of the additional counter affidavit, it is pointed out that the position of staff requirement in Regional Office and Local Offices have been reviewed by Head Quarters Office of Employees State Insurance Corporation. In Kerala 92 posts of Lower Division Clerks and wpc 3261/2009 3 66 posts of UDC/UDC- Cashier were declared surplus which had to be surrendered in a phased manner by absorption/adjustment against future vacancies. As a result, there were no vacant posts for recruitment in the subsequent years till 2008. 5. The petitioner is a person who had participated in the selection process and is included in the rank list. The notification was never under challenge. Even though it is contended that the notification does not contain any reservation for physically handicapped persons, at this late hour, this court will not be justified in directing the respondents to appoint the petitioner in the 3% category since no such reservation is available. Apart from that, if 3% vacancy is reserved for physically handicapped candidates, so many other such candidates could have competed for the post and therefore, if an appointment is directed to be given to the petitioner, that will be in violation of Articles 14 and 16 of the Constitution of India. Therefore, no such exercise could be done at this distance of time. 6. Admittedly the petitioner has been included in the rank list. If 3% is again reserved, then that will affect the rights of other candidates included in the rank list for appointment in available vacancies. None of them are included in the party array as respondents. In that view of the matter also, no relief could be granted to the petitioner in this writ petition. wpc 3261/2009 4 7. Apart from that, going by the number vacancies, only 29 were notified for Kerala. A reservation to the extent of 3% cannot therefore be worked out effectively to provide for any physically handicapped candidate. The respondents have got a case that the posts are being restructured in a phased manner. In that view of the matter, the petitioner cannot succeed in the writ petition. 8. One thing to be noticed is that going by Section 33 of the Act, “every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability…………” Section 38 of the Act obliges the appropriate Governments and local authorities to formulate schemes for ensuring employment of persons with disabilities. The provisions are mandatory and hence have to be implemented by all the departments including the respondents herein. Even going by the counter affidavit, no steps are seen taken so far to implement the provisions of the above Act. The object of the enactment cannot be given a go bye merely because of the fact that two or three persons of the said category are already in service and are continuing. The physically handicapped candidates are from a weaker sections among the general category candidates and the statutory benefits available to them are liable to be granted with all its seriousness. Therefore, wpc 3261/2009 5 even though the petitioner is not entitled to succeed in this writ petition, respondents 1 and 2 should take earnest efforts to implement the provisions of the Act as they are bound by its specific terms while making appointments. With the above observations, the writ petition is dismissed. Sd/- (T.R. Ramachandran Nair, Judge.) kav/ \\True copy// P.A. to Judge