IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16116 of 2008(R)
1. SIBIN PAUL, THATTIL VALLACHIRAKARAN
... Petitioner
Vs
1. STATE OF KERALA, REP. BY ITS
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE DISTRICT EMPLOYMENT OFFICER,
5. RASHEEDA.P.B.,
For Petitioner :SMT.S.KARTHIKA
For Respondent :SRI.C.HARIKUMAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :23/09/2008
O R D E R
ANTONY DOMINIC, J.
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No. 16116 OF 2008 R
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Dated this the 23rd day of September 2008
J U D G M E N T
The challenge is against Ext. P9, a list of Orthopaedically
Handicapped persons forwarded by the 4th respondent for filling up
the post of Junior Hindi Teacher earmarked to be filled up from
among Physically Handicapped persons giving them the benefit of
the Persons With Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995.
2. According to the petitioner, in 2005 there arose a
vacancy of Junior Hindi Teacher in Thrissur District in the U.P.
School which was set apart to be filled up from among the Physically
Handicapped persons. It is stated that when steps were not taken
for filling up the vacancy, the petitioner approached this Court and
filed W.P.(C) No. 21988/07. In that writ petition a contention was
raised by the 2nd respondent therein that the post should be filled
up by a Muslim Orthopaedically Handicapped person. The counter
affidavit filed by the District Collector in that writ petition is Ext. R5
W.P.(C) No.16116 OF 2008
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(d). In paragraph 6 of the said counter affidavit it was, inter alia,
stated that in the category of Primary Teachers, appointments have
already been made under the Direct Recruitment Scheme and that
the last appointment made was from the category of “Open Blind”.
Proceeding further, it was stated that as per G.O.(MS) No.
86/05/LBR dated 27.8.2005, the next vacancy shall have to be
reserved for “Muslim Ortho” and accordingly instructions have been
given to the District Employment Officer to submit a panel of
eligible candidates belonging to Muslim Ortho category for
appointment as Junior Hindi Teacher.
3. When the writ petition was pending before this Court,
the Apex Court rendered Ext. P6 judgment wherein it was, inter alia,
held that disabled persons constitute a special class by themselves
and that question of making any further reservation on the basis of
caste or creed or religion, ordinarily may not arise. When the writ
petition came up for final hearing, taking note of the law laid down
by the Apex Court in Ext.P6 judgment, this Court disposed of the
writ petition directing that the District Collector shall fill up the post
of Junior Hindi Teacher (Full Time) lying vacant in the Thrissur
W.P.(C) No.16116 OF 2008
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District by appointing the eligible Physically Handicapped person
without reference to communal rotation and in accordance with
Section 33 of the Act referred to above. It is also to be noticed that
in paragraph 2, this Court recorded the submission of the learned
Govt. Pleader that if the petitioner is entitled to be appointed in the
vacancy then available, petitioner could be accommodated.
However, no positive direction has been given in the judgment.
4. Subsequently, Ext. P9 list was forwarded by the 4th
respondent to the 2nd respondent, for filling up the post by a
suitable physically handicapped candidate. A perusal of Ext. P9
shows that the candidates sponsored by Ext. P9 are Orthopaedically
Handicapped persons and it is in view of this, the petitioner who is a
blind, has filed this writ petition seeking to challenge Ext. P9.
Petitioner submits that there could not have been any reservation as
is done in Ext. P9 and that if at all, any reservation is possible, the
post has to be reserved for blind persons extending the benefit of
Section 33 of the Act. It is also his contention that out of the 3%
reservation, although Orthopaedically disabled persons are eligible
for 1% reservation, Exts. P4 and P10 would show that there is an
W.P.(C) No.16116 OF 2008
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excess representation from that category. Yet another contention
raised by the petitioner is that the post of Junior Hindi Teacher,
having been included among the eligible categories only in 2005,
and this being the first vacancy the benefit of reservation should go
to blind, which is the first among the 3 categories enumerated in
Section 33 of the Act.
5. The learned Govt. Pleader submits on the basis of
instructions that the alleged over representation is not because one
category has been preferred over the other, but as all posts are not
suitable for all categories of physically handicapped, when
appointments are made, benefit is given to eligible candidates and
that it was on account of this reason that the variation in percentage
is indicated in Exts. P4 and P10. It is also his case that going by Ext.
P3, the Hindi Teachers have been included among the primary
teachers and therefore Primary Teachers as a whole will have to be
taken as the eligible unit and in the eligible unit the last
appointment made was from the category of blind and therefore the
next will go to Orthopaedically handicapped.
6. The 5th respondent would also support the plea raised by
W.P.(C) No.16116 OF 2008
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the learned Govt. Pleader. He would also submit that following
receipt of Ext.P9, selection process was initiated and concluded and
that by Ext. R5(d) he was selected and Ext. R5(c) appointment order
was also issued to him.
7. The question that arises for consideration is whether any
claim of the petitioner for the benefit of reservation provided in
Section 33 has been overlooked. As rightly pointed by the
petitioner, it was by Ext. P3 that the benefit of reservation provided
in the Act was extended to the post of Junior Hindi Teachers. A
reading of Ext. P3 shows that while extending the benefit of the
Govt. Order dated 14.7.1998, the category of Junior Hindi Teacher
was included in the category of primary teacher for the purposes of
reservation under the Act. Therefore primary teacher is the unit and
the reservation and its appropriation will have to be worked out in
the category of primary teachers.
8. Though the petitioner claimed entitlement for
appointment in W.P.(C) No. 21988/07, that writ petition, as already
noticed, was disposed of by Ext. P8 judgment directing that the
District Collector should take steps for appointment. In Ext. R5(d)
W.P.(C) No.16116 OF 2008
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counter affidavit the District Collector has made his stand known
that the benefit of reservation has to be given to Orthopaedically
Handicapped Muslim candidates. Following Ext.P6 judgment of the
Apex Courts, this Court held that there is no question of any
communal rotation applicable. Therefore, all that the District
Collector was expected to do so to make appointment among the
eligible candidates.
9. Ext. R5(d) counter affidavit also shows that the previous
appointment in the category of Primary Teachers was given to a
blind candidate. It is on that basis the District Collector held that
the next appointment will go to Orthopaedically Handicapped
person. This contention of the District Collector has not been
interfered with in Ext. P8 judgment. For that reason and also for the
reason that the unit of appointment to be worked out from among
Primary Teachers, I have to accept the plea of the Govt. Pleader that
since the earlier appointment was offered to the blind category, the
next appointment will have to go to Orthopaedically disabled
persons. Once that plea is accepted, there is nothing erroneous in
Ext. P9 whereby the 4th respondent has confined the list to those
W.P.(C) No.16116 OF 2008
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Orthopaedically Handicapped persons. If that be so, selection of
those candidates sponsored by Ext. P9 and the consequent selection
of the 5th respondent and his appointment does not call for any
interference.
10. Petitioner has a further case that one more vacancy of
Hindi Teacher (Part Time) is available and earmarked to be filled up
from among the Physically Handicapped persons. If this assertion
of the petitioner is factually right, since even according to the
petitioner present vacancy is earmarked for 2005 the next vacancy
will have to go to the blind candidates. Necessarily therefore, in
case vacancy is available the District Collector should take steps for
filling up the same it will be open to the petitioner to move the
District Collector in this behalf.
Writ petition is disposed of as above.
ANTONY DOMINIC
JUDGE
jan/-