High Court Kerala High Court

Sibin Paul vs State Of Kerala on 23 September, 2008

Kerala High Court
Sibin Paul vs State Of Kerala on 23 September, 2008
       

  

  

 
 
  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.

                   = = = = = = = = = = = = = = =
                   =W.P.(C) = = = = = = = = = = =
                             No. 16116 OF 2008 R
                     = = =


              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

– 2 –

(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

– 3 –

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

– 4 –

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

– 5 –

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

– 6 –

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/-