IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37281 of 2007(L)
1. THE KERALA FEDERATION OF THE BLIND,
... Petitioner
2. ROSILY A.O., D/O.LATE OUSEPH,
3. C.M.SHALI, S/O.C.M.MAKKAR,
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE PRINCIPAL SECRETARY,
3. THE PRINCIPAL SECRETARY,
For Petitioner :SRI.K.I.ABDUL RASHEED
For Respondent :ADVOCATE GENERAL
The Hon'ble MR. Justice V.GIRI
Dated :06/05/2008
O R D E R
V.GIRI, J.
-------------------------
W.P.(C).No.35134, 37281 & 37825 of 2007,
2999, 4068, 6312, 6958, 7044,
8966 & 10275 of 2008
-------------------------
Dated this the 6th day of May, 2008.
JUDGMENT
Though the relief sought for by the petitioners in these
cases are not identical or even similar, the disposal of W.P.(C)
No.37281/07 will have an impact on the other writ petitions and
therefore, they have been heard together and are disposed of by
this common judgment. After referring to certain issues, I shall
take each one of the writ petitions. Reference is made to W.P.(C)
No.37281/07 in the first instance.
2. The first petitioner is an association registered under
the Travancore-Cochin Literary Charitable Societies Registration act
and is party to the National Federation of the Blind. 2nd and 3rd
petitioners, members of the 1st petitioner-association, are visually
handicapped persons. The grievance highlighted by the petitioners
in these writ petitions revolves around what they allege as failure
on the part of the Government and its officials to maintain the ratio
of 1 : 1 : 1 among the orthopaedically handicapped, deaf, dumb
and blind (visually impaired) persons in the matter of appointments
W.P.(C).NO.37281/07 & Con.cases
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in the civil services against vacancies reserved for physically
handicapped persons.
3. The persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation Act, 1995 {hereinafter
referred to as “the Act”} was promulgated with a view to give
effect to the international proclamation of full participation and
equality of people with disabilities in the Asian and Pacific Region.
Section 33 of the Act mandates that the appropriate Government
shall provide for reservation of at least 3% of the vacancies in
every establishment for physically handicapped persons. The
provisions of the Act have an overriding effect and therefore it is
mandatory on the part of the Government to necessarily reserve
3% of the vacancies for physically handicapped persons. The Act
further provides that the vacancies for physically disabled should
be chosen in such a manner that the 3 particular categories of
physically handicapped get equal opportunities to get appointed
under the scheme and in this regard the ratio of 1 : 1 : 1 should
be maintained among the Orthopaedically handicapped, deaf and
dumb and the blind (visually impaired).
W.P.(C).NO.37281/07 & Con.cases
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4. Taking note of Section 33 of the Act, the
Government issued Ext.P3 Government Order providing for a
scheme for physically handicapped persons in public services as
per the scheme appended to Ext.P3. Clause (3) of the said
scheme is relevant and is extracted hereunder:
“Three per cent of the vacancies arising in Class III
and Class IV categories shall be reserved for
appointment from physically handicapped persons.
The posts to which appointment will be made are
enumerated in Annexure I. The number of
appointments to be made each year in various
categories will be fixed annually by Government in
the Personnel and Administrative Reforms
Department on the basis of the number of
appointments made in the Class III and Class IV
posts (except N.J.D. vacancies) during the previous
year. The Government will collect in January each
year from the office of the Kerala Public Service
Commission details of the vacancies in Class III and
Class IV posts to which advice has been made by
the Public Service Commission excluding N.J.D.
vacancies. The list should contain the number of
advices made by each district office and head office
separately. Three percentage of the total number
of vacancies will be allocated among various
districts taking into account the number of
appointments made in each district. The posts
suitable for appointment of the different categories
of Physically Handicapped are given in Annexure II.
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5. Under Ext.P3, the selection was to be done by a
committee consisting of the District Collector as the Chairman.
The appendix to the order also identifies the posts against which
the physically handicapped persons could be appointed.
Obviously, there were certain posts against which the concerned
physically handicapped persons may not be suitable for
appointment and therefore, the posts which are suitable for the
Orthopaedically handicapped, deaf, dumb and the visually
impaired persons have been separately identified in the Appendix
to Ext.P3 Government Order.
6. Even during the currency of Ext.P3, the
Government came out with Ext.P4 Government Order which, inter
alia, directed that those physically handicapped persons, who
were appointed on a provisional basis between 15.8.1998 and
15.8.1999 under Rule 9(a)(i) of Part II of the KSSR will be re-
engaged and regularized in service. Ext.P4 Government Order,
inter alia, provided that the concerned persons should have
completed 179 days during the period between 15.8.1998 and
15.8.1999. This court, in several writ petitions, directed that such
physically handicapped persons who have rendered services
W.P.(C).NO.37281/07 & Con.cases
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during the aforementioned period, in such a manner that a
portion alone would fall within the aforementioned period, were
also entitled for the benefit of the Government Order and
accordingly the Government issued Ext.P5 order directing that
those among the disabled who got provisional service during the
period between 15.8.1998 and 15.8.1999 were entitled to re-
engagement, even if the entire period of 179 days of service did
not fall within the span aforementioned. The petitioners have no
grievance, as such, regarding the broad principle under which
Exts.P4 and P5 have been issued, but are particularly aggrieved
by two factors. They are firstly aggrieved by the fact that the
Government has not take any steps to maintain the internal ratio
of 1 : 1 : 1 among the physically handicapped persons, while
implementing Section 33 of the Act and Ext.P3 order. It is
contended that the posts to be reserved for physically
handicapped persons should have been identified in such a
manner that the internal ratio of 1 : 1 : 1 is maintained while
effecting appointments from physically handicapped persons.
Insofar as the implementation of Ext.P4 is concerned, it is
contended that more than 90% of the physically handicapped
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persons, who were engaged on a provisional basis during the
period between 15.8.1998 and 15.8.1999, are Orthopaedically
handicapped persons and when Exts.:P4 and P5 were issued
giving a right of re-engagement to such physically handicapped
persons, it came about that an overwhelming majority of
physically handicapped persons, who turned out to be
beneficiaries of Exts.P4 and P5 orders are Orthopaedically
handicapped persons. Though the petitioners have no grievance
against the Orthopaedically handicapped persons also being
conferred a right of re-engagement, their grievance is that under
Exts.P4 and P5 order, the Government has made it clear that the
re-engagement being given to the physically handicapped persons
under Exts.P4 and P5 will first entail an appointment against the
backlog vacancies for the years subsequent to 2001. The net
result, according to the petitioners, is that in the course of
accommodating the physically handicapped persons, who were
engaged on a provisional basis between 15.8.1998 and
15.8.1999, the vacancies, which otherwise should have been set
apart for visually impaired persons and had turned out to be
backlog are also being filled up by Orthopaedically handicapped
W.P.(C).NO.37281/07 & Con.cases
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persons. It is in these circumstances that the petitioners have
approached this court seeking a direction to the Government and
its officials to see that in filling up the 3% vacancies reserved for
physically handicapped persons, the internal ratio of 1: 1: 1
among the physically handicapped persons should be maintained
and the backlog vacancies, which otherwise must be made
available to visually impaired persons must be filled up only by
such persons and at any rate, enforcement of Exts.P4 and P5
orders should not result in the proportionate number of backlog
vacancies to be made available to visually impaired persons being
taken over by the Orthopaedically handicapped persons to the
detriment of the former.
7. A statement has been filed on behalf of the 1st
respondent. It is pointed out that various provisions of the Act are
being implemented in the State and in accordance with the
provisions of the Act, a scheme for direct recruitment of disabled
persons was drawn up as per Ext.P3 and it is being implemented.
Subsequently, in order to effectively implement the scheme, with
greater transparency and accountability, the selection process of
physically handicapped persons has been entrusted with the
W.P.(C).NO.37281/07 & Con.cases
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Public Service Commission {for short “the Commission”}. The
Commission has taken up the recruitment process. Referring to
Exts.P4 and P5 Government Orders, it was pointed out that
Ext.P4 order came to be passed taking note of the directions
issued by this court in several writ petitions. Since the
provisionally appointed persons had to be re-engaged, it was not
possible to maintain the internal ratio of 1: 1: 1, while passing
Ext.P5 order. 603 number of physically handicapped persons
were ordered to be reinstated in service against the backlog
vacancies up to 2003 reserved for physically handicapped
persons. Paragraph 5 of the statement gives a gist of the action
taken by the government in this regard. It reads as under:
“All the 603 disabled persons who were appointed
during the period from 15.08.1998 to 15.08.1999
are ordered to be reinstated in service are persons
sponsored by the Employment Exchanges. The
recommendation of individuals and their
appointment for temporary employment through
Employment Exchanges are not done by observing
1 : 1 : 1 ratio amongst physically, visually and
hearing challenged individuals. Besides the duties
and functions attached to the posts to which they
were appointed were not assessed to be suitable
for the 2 categories of Blind and Deaf. It is
submitted that most of the posts enlisted in the
W.P.(C).NO.37281/07 & Con.cases
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G.O.(P)85/07/SWD dated 30.11.07 are posts
meant for the Orthopaedically challenged. Out of
the 603 persons, 555 belong to the
orthopaedically handicapped and there are only
33 visually challenged and 15 hearing impaired.
Vide G.O.(P)No.50/07/SWD dated 15.09.2007 the
selection of Class III and IV was changed from
the District Collectors to the Kerala Public Service
Commission. In addition to the above 603
persons, as on 30.09.2007, there were 25
orthopaedically handicapped, 13 hearing impaired
and 6 visually impaired persons pending
appointments from the select lists prepared by
the District Collectors of Thiruvananthapuram and
Malappuram.
8. The petitioners have filed a reply statement. They
point out that the Government was obliged to maintain the
internal ratio of 1: 1: 1 while effecting appointments to the 3%
vacancies reserved for physically handicapped persons and
whatever be the justification for issuing Ext.P5 order, it should
not have been done in such a manner as to deprive the visually
impaired persons of the vacancies which rightfully belonged to
them. While recognizing a right of re-engagement of physically
handicapped persons, who were provisionally engaged between
15.8.1998 and 15.8.1999 it should not have resulted in upstaging
W.P.(C).NO.37281/07 & Con.cases
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the visually impaired persons from being considered against the
vacancies which ought to have been filled up only by visually
handicapped persons.
9. I heard learned counsel for the petitioners
Sri.Abdul Rasheed and learned Advocate General
Sri.C.P.Sudhakara Prasad along with Senior Government Pleader
Sri.Nandakumar in the aforementioned writ petition. I also heard
the counsel who appeared for the various parties, who have got
themselves impleaded.
10. The petitioners are right in contending that a
minimum of 3% vacancies in public employment is mandatorily
reserved for physically handicapped persons. The petitioners are
also right in contending that the internal ratio of 1:1:1 is to be
maintained while filling up the vacancies reserved for physically
handicapped persons. A strict implementation of Ext.P3
Government Order could not have resulted in any grievance by
the visually impaired persons that the ratio is not adhered to. But
the internal ratio was admittedly not being adhered to when the
Government decided to re-engage the physically handicapped
persons, who were provisionally engaged during the period
W.P.(C).NO.37281/07 & Con.cases
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between 15.8.1998 and 15.8.1999. Sri.Rasheed is right in
contending that this situation came about because in provisionally
engaging physically handicapped persons between 15.8.1998 and
15.8.1999 the various heads of offices did not kept in mind the
internal ratio of 1:1:1. Thus, when a right of re-engagement was
given to physically handicapped persons, who were engaged
provisionally between 15.8.1998 and 15.8.1999 it consequently
resulted in an overwhelming number of Orthopaedically
handicapped persons getting re-engaged and regularized in
services. Learned counsel for the petitioners submits that they do
not have a grievance against such right of re-engagement being
given to Orthopaedically handicapped persons. But the real
grievance arises when enforcement of Exts.P4 and P5
Government Orders is against the backlog vacancies of physically
handicapped persons up to the year 2003. Since overwhelming
number of physically handicapped persons engaged during the
period between 15.8.1998 and 15.8.1999 were Orthopaedically
handicapped persons, this has resulted in the vacancies which
otherwise should have been set apart for visually handicapped
W.P.(C).NO.37281/07 & Con.cases
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and hearing impaired persons also being made available to
Orthopaedically handicapped persons.
11. The petitioners are right in submitting so. In
fact, that the ratio was not adhered to is admitted in the
statement filed on behalf of the 1st respondent; that the ratio is to
be clearly adhered to is also fairly admitted in the statement.
12. Learned Advocate General Sri.C.P.Sudhakara
Prasad, on instructions, submits that Ext.P5 order came to be
issued to effect compliance with the directions issued by this
court in several judgments directing that the benefit of Ext.P4
Government Order to be given to all those physically handicapped
persons, who were engaged between 15.8.1998 and 15.8.1999,
even if only a portion of the service rendered by them fall within
such time. Learned Advocate General submits that the
Government has taken a decision to the effect that all physically
handicapped persons, viz., Orthopaedically handicapped, hearing
impaired and visually impaired, who have rendered service during
the period between 15.8.1998 and 15.8.1999 will be re-engaged
and regularized in service. The submission made by the learned
Advocate General is recorded.
W.P.(C).NO.37281/07 & Con.cases
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13. Learned Advocate General further submits that
the Government has already decided to entrust the special
recruitment to the vacancies set apart for physically handicapped
persons to the Commission. The posts, which are suitable for
physically handicapped persons have been identified in Ext.P3
Government Order. But before the Commission commences
recruitment, the eligibility criteria may have to be laid down or in
some cases, revised or modified. This is a time consuming
process. But the Government is taking all earnest efforts to see
that minimum 3% vacancies, which have arisen in all the
departments in the Government from the year 2004 onwards, will
be filled up only by physically handicapped persons. Learned
Advocate General further submits that in effecting such
appointments, the Government will ensure that the appointments
will be effected by maintaining the internal ratio of 1: 1: 1 among
the Orthopaedically handicapped, hearing impaired and visually
impaired persons. Necessary intimation will be given by the
Government to the Commission in this regard and special
recruitment from here onwards will adhere to the broad
classification amongst the physically handicapped persons and the
W.P.(C).NO.37281/07 & Con.cases
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ratio of 1:1:1 among the three broad categories of physically
handicapped persons. This submission is also recorded.
14. Though the learned counsel for the petitioners is
right in submitting that the re-engagement of physically
handicapped persons under Exts.P4 and P5 orders should not
result in the internal ratio being violated as such, I refrain from
interfering with any of the appointments effected as per Ext.P5
order essentially for two reasons: Firstly, the Government came
to issue Ext.P5 order to effect compliance with the directions
issued by this court in several judgments. Secondly, the
beneficiaries of Ext.P5 are also physically handicapped persons,
though they come under a separate category. An interference
with such appointments for the purpose of maintaining the
internal ratio even among the backlog vacancies would result in
serious detriment and hardship to equally deprived category of
employees. In the circumstances, I think, it is appropriate that
the respondents be directed to take ameliorative measures to
redress the grievance of the visually impaired persons, but
without affecting the appointment of the other physically
handicapped persons who are the beneficiaries of Exts.P4 and P5.
W.P.(C).NO.37281/07 & Con.cases
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15. In the result, the Government is directed to take
steps to implement the following directions:
(a) The Government will first identify the different
posts in Class III, IV, II and I, suitable for
appointment of the physically handicapped
persons. Though this has now been done in
Appendix to Ext.P3 Government Order, it will be
appropriate that comprehensive orders are passed
identifying the different posts in the different
departments, wherein the 3% of the vacancies will
necessarily have to be filled up by physically
handicapped persons. This direction is being issued
taking note of the fact that Ext.P3 Government
Order was issued about 10 years back and it will
be appropriate that an updating exercise be done
for identifying the different posts and making it
current for the purpose of special recruitment. The
exercise involving identification of the posts shall
be done at the earliest, as undertaken by the
learned Advocate General and at any rate, within a
period of six months from today.
(b) The Government and the Commission shall, in the
course of conducting special recruitment, fill up
the vacancies to be filled up by physically
handicapped persons, in such a manner that the
internal ratio, as contemplated by Section 33 of the
Act, is maintained. The Government shall ensure
that one category of physically handicapped
persons does not entertain a grievance against
another category of physically handicapped
persons. As undertaken by the learned Advocate
W.P.(C).NO.37281/07 & Con.cases
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General, orders containing the guidelines to be
followed by the Government and the Commission
in the manner of such special recruitment shall be
issued as early as possible. I refrain from fixing a
time limit for this exercise essentially taking note
of the submission made by the learned Advocate
General that it may not be possible to fix a rigid
time for this time consuming part of the exercise.
(c) In filling up the vacancies from 2004 onwards,
which is to be done by the Commission, the
Government and the Commission shall ensure that
the internal ratio of 1:1:1 among the
Orthopaedically handicapped, hearing impaired
and visually impaired, is maintained.
(d) Of course, in maintaining the ratio, the
Government and the Commission would obviously
take note of the peculiarities of the duties attached
to a post and a possible inability by a particular
category of physically handicapped persons to
discharge the duties in the said post. The
Government is at liberty to keep these features in
mind in issuing guidelines in maintaining the
internal ratio.
(e) The submission made by the learned Advocate
General that all the physically handicapped
persons who were provisionally engaged between
15.8.1998 and 15.8.1999 will be re-engaged, is
recorded and the Government is directed to see
that this is implemented without any dilution.
(f) Insofar as the vacancies up to the year 2003 are
concerned, the Government shall take note of the
number of vacancies which ought to have been set
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apart for visually impaired and hearing impaired
persons amongst the said vacancies up to the year
2003, in maintaining the ratio of 1:1:1 and in
making a requisition to the Commission to fill up
the vacancies from the year 2004, the Government
shall ensure that the claims made by any visually
impaired or hearing impaired persons, which
otherwise could have been satisfied if the ratio of
1:1:1 is adhered to even against the vacancies up
to 2003 are, as far as possible, recouped in the
course of appointing physically handicapped
persons against the vacancies from 2004 onwards.
If this exercise requires adjustment of the
vacancies which arise beyond 2008 also, then the
same shall also be done, to see that the process of
recouping is done as completely as possible.
16. All interim orders shall stand vacated.
W.P.(C)No.35134/07
17. The above writ petition has been filed by an
Orthopaedically handicapped person, who is an applicant for the
post of Junior Health Inspector Grade II and is included in the
rank list. The petitioner essentially seeks a direction to appoint
him by enforcing Ext.P4 rank list against the vacancy which ought
to be reserved for a physically handicapped person. The relief
sought for by the petitioner, if granted, would involve a direction
to the Government and the Commission to apply the ratio of
W.P.(C).NO.37281/07 & Con.cases
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physically handicapped persons against a general recruitment
which was undertaken by the Commission. In my view, this
would not be appropriate. If the petitioner’s turn arises in the
course of enforcement of the rank list, obviously he would be
entitled to advice and appointment. But, even otherwise, the
petitioner would be entitled to be considered for appointment not
only to the post of Junior Health Inspector, but to any other post
to which he could legitimately apply as being eligible and it is
certain that his claim would be considered in the course of the
special recruitment which the Government is to undertake as
already discussed above.
18. Subject to eligibility, the petitioner obviously
would have a right to be considered and it is so declared.
W.P.(C)No.4068/08
19. The petitioner is a physically handicapped
person, who had worked during the period between 13.8.1998
and 08.10.1998. The petitioner is entitled to re-engagement in
terms of Exts.P4 and P5 orders and Ext.P11 Government Order
makes it clear that the re-engagement is made applicable to the
W.P.(C).NO.37281/07 & Con.cases
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employees in Local Authorities also. Ext.P7 is a representation
pending before the 1st respondent.
20. In the result, the 1st respondent is directed to
look into Ext.P7 in the light of Ext.P3 Government Order and in
the light of the undertaking given by the learned Advocate
General and recorded above. Needful shall be done within three
months from the date of receipt of a copy of this judgment along
with a copy of the writ petition.
W.P.(C)No.2999/08
21. The petitioners are physically handicapped
persons with 40% loco motor disability. They are essentially
aggrieved by the delay on the part of the Government in taking
appropriate steps for special recruitment and that this should be
done against the backlog vacancies of 2004 onwards. In my
view, the comprehensive directions, which have been issued in
W.P.(C)No.37281/07, will take in all the interests of the
petitioners herein also. It may not be possible to fix a rigid time
for the Government to issue comprehensive guidelines regarding
the manner in which the special recruitment is to be conducted.
W.P.(C).NO.37281/07 & Con.cases
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W.P.(C)No.10275/08
22. The petitioner, who was a physically handicapped
person with 40% Orthopedic Physical disability, is aggrieved by
the fact that, though he was engaged on a provisional basis as a
Village man between 15.8.1998 and 15.8.1999 as evidenced by
Exts.P3 to P5, he is yet to be re-engaged. Ext.P8 comprehensive
representation is pending before the Government. In view of the
undertaking given by the learned Advocate General, I have no
doubt in my mind that the Government will consider the case of
the petitioner and issue orders of re-engaging him in service. To
enable the Government to do so, the petitioner is directed to
submit a comprehensive representation before the Government
within one month from the date of receipt of a copy of this
judgment along with a copy of the writ petition, in which case,
the Government will pass suitable orders within three months
thereafter.
W.P.(C)No.6312/08
23. The petitioner, a physically handicapped person,
was appointed as an HSA by the Deputy Director of Education as
per Ext.P1 order and she discharged her duties between
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15.8.1998 and 15.8.1999. Her claim for appointment was
directed to be considered under Ext.P2 judgment and P3 order
was passed by the Government requiring the Deputy Director to
issue an order of appointment. Though the petitioner has
approached the 2nd respondent to receive the order and join duty,
she is yet to be given posting orders. Apparently, this was
because of the pendency of W.P.(C)No.37281/07.
24. The only direction now required, in the light of
the disposal of W.P.(C)No.37281/07, is one to the 2nd respondent
to see that the petitioner is given posting orders in the light of
Ext.P3 order at the earliest, at any rate, within three months from
the date of receipt of a copy of this judgment. It is so directed.
W.P.(C)No.8966/08
25. The petitioner a physically handicapped person,
who had rendered service as a Lower Division Binder between
7.5.1999 and 22.11.1999, as evidenced by Ext.P3, is entitled for
re-engagement and regularization as directed in Ext.P3. Ext.P8
representation is pending before the Government. Taking note of
the undertaking given by the learned Advocate General that all
persons, who have rendered provisional service during the period
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between 15.8.1998 and 15.8.1999 shall be re-engaged and
regularized in service, I direct the 1st respondent to consider and
pass appropriate orders on Ext.P8 within a period of one month
from the date of receipt of a copy of this judgment.
W.P.(C)No.7044/08
26. The petitioner, a physically handicapped person,
had rendered provisional service from 2.8.1999 to 27.1.2000 in
the Mavelikkara Municipality. The petitioner is entitled to re-
engagement and regularization of service. Taking note of the
averments in the writ petition and the fact that the petitioner’s
claim is justified, the 2nd respondent is directed to see that the
petitioner is issued orders of posting in terms of Ext.P5 order
within one month from the date of receipt of a copy of this
judgment.
W.P.(C)No.6958/08
27. The petitioner is an Orthopaedically handicapped
person, having disability in excess of 40%. The petitioner prays
for a direction that she be considered for appointment as part-
time menial in the Department of Education. The only direction
which could be issued in this regard is one to the petitioner to
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approach the Government with a grievance. Accordingly, if the
petitioner files a comprehensive representation before the first
respondent, it shall be looked into and a suitable decision taken
thereon within a period of three months from the date of receipt
of a copy of this judgment.
W.P.(C)No.37825/07
28. The petitioner, a post graduate in law, is
physically challenged with more than 40% disability. The
petitioner is included in a rank list published on 31.12.2005 for
the post of Municipal Secretary Grade II. Essentially, the
petitioner prays for a direction to the Government and the
Commission to apply the ratio available to physically handicapped
persons against a rank list published at the end of a general
recruitment undertaken by the Commission. The rank list has
expired on 31.12.2007. The petitioner cannot seek a direction to
apply the ratio to the rank list which has been published by the
Commission at the culmination of a general recruitment. If the
petitioner’s turn comes, then obviously, she is entitled to be
considered and it is so declared. But, even otherwise, the
petitioner would be entitled as and when a special recruitment is
W.P.(C).NO.37281/07 & Con.cases
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undertaken by the Government and the Commission, as already
directed in W.P.(C)No.37281/07. The right of the petitioner to be
considered is also declared and no further direction is call for in
this writ petition.
The writ petitions are disposed of as above.
Sd/-
(V.GIRI)
JUDGE
sk/
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