IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8480 of 2006(H)
1. THE ERNAKULAM DISTRICT ASSOCIATION
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE SELECTION COMMITTEE,
3. THE CHAIRMAN & DISTRICT COLLECTOR,
4. THE SPECIAL EMPLOYMENT OFFICER
5. THE COMMISSIONER OF PERSONS
6. THE APPELLATE MEDICAL BOARD, PERSONS
7. THE DISTRICT MEDICAL BOARD,
For Petitioner :SRI.C.N.SREEKUMAR
For Respondent :SRI.JOHN JOSEPH(ROY)
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :08/07/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C)No. 8480 OF 2006
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Dated this the 8th day of July, 2009
J U D G M E N T
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1. Petitioner is an Association constituted for welfare of ‘deaf
persons’. Grievance of the petitioner relates to the process of
selections already made and being made to public service under the
provisions of the Persons With Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act 1995 (hereinafter
referred to as the Act for short). The allegation is that the selections
are not made in proper compliance with the Rules framed by the State
Government under the Act namely, the Persons With Disabilities
(Equal Opportunities, Protection of Rights and Full Participation)
Kerala Rules, 2000 (hereinafter referred to as the State Rules). It is
submitted that the State Government had issued Ext.P1 order
providing a scheme for appointment of physically handicapped
persons in public service, in Class III and IV posts. In clause (8) and
(9) of Ext.P1 the eligibility criteria of the candidates for appointment
under that scheme is prescribed as the eligibility stipulated in the
Explanations to Rule 9(e) of part II of Kerala State and Subordinate
Services Rules 1958 (KS&SSR). But Rule 9(e) does not prescribe any
limit with respect to the extent of disability or any particular
percentage of disability, as eligibility criteria for appointment.
Whereas Section 2(i) of the Act itself defines the word “disability” and
further Section 2(l) of the Act defines the word “hearing impairment”.
W.P.(C).8480/06 2
As per Section 2(l), “hearing impairment” is defined as “loss of 60
decibels or more in the better ear in the conversational range of
frequencies”. Further, in Rule 3 of the State Rules the guidelines for
evaluation of various disabilities has been prescribed. As per Rule 3
the criteria prescribed in the notification of the Central Government
as amended from time to time, which is appended as Annexure-A to
the Rules, is insisted to be followed strictly. But in Ext.P1 the above
said provisions of the Act or that of the State Rules has not been taken
note of. Subsequently the Government issued a clarification as per
Ext.P2 in which it is stated that the eligibility has to be decided as per
the definition contained in the Act. According to the petitioner inspite
of provisions contained in the Act, the State Rules and the
clarifications made in Ext.P2, the Selection Committee as well as
respondents 6 and 7 are not strictly following those parameters in the
matter of issuing disability certificates as well as in the selection
process. Hence they seek for appropriate directions from this Court.
2. The petitioner on an earlier occasion had approached this
Court challenging the selections made during the year 2004-05, in
violation of the provisions in the Act and State Rules. Ext.P5 is the
judgment in that writ petition. But applying the dictum in Gurupal
Singh Vs. State of Punjab and others (AIR 2005 SCW 3144), it is
found that the petitioner, being an association, has no ‘locus standi’ to
challenge selections made by a competent authority. Therefore the
petitioner sought permission to withdraw the writ petition and it was
W.P.(C).8480/06 3
dismissed as withdrawn.
3. In the counter affidavit filed by the additional 9th
respondent it is specifically stated that the recruitment of physically
handicapped candidates to the 3% vacancies reserved by virtue of the
Act, has already been entrusted with the Kerala Public Service
Commission (KPSC) through Ext.R9(b) Government Order. Therefore
from the date of Ext.R9(b) onwards the entire selection process for
appointment of physically handicapped candidates against the
vacancies reserved under the provisions of the Act, stands entrusted
with KPSC. Eventhough the KPSC is impleaded as additional 10th
respondent, no counter affidavit is seen filed. However, the grievance
raised in this writ petition is not pertaining to any selection made by
the KPSC. At the same time the petitioner submitted that the KPSC is
also depending on certificates of the Medical Boards for evaluating
physical disability of the candidates, in order to decide their
eligibility. Therefore the petitioner expressed an apprehension that
there will be chances for non-adherence to the parameters prescribed
under the State Rules. But in view of the specific provisions contained
in the Act and in the State Rules, I do not find any basis for such an
apprehension. It goes without saying that the KPSC, now being
entrusted with the task of appointments under the Act, is bound to
follow the provisions contained in the Act as well as in the State Rules
and also bound to ensure that the parameters prescribed therein for
assessment of physical disability is strictly followed by any other
W.P.(C).8480/06 4
authority with whom such evaluation is entrusted.
4. Under the above mentioned circumstances this writ
petition is disposed by issuing directions to the respondents
concerned with the selection of candidates to the posts reserved
under the Act, to take all necessary steps to ensure that the selection
is made on the basis of strict evaluation of the extent of physical
disability based on the parameters specified under the provisions of
the Act and the State Rules, mentioned above.
5. It is hereby clarified that disposal of this writ petition on
the above terms will not in any way affect rights if any available to
any members of the petitioner association to challenge any individual
appointments already made, in violation of the provisions of the Act or
the State Rules, if permissible under law.
The writ petition is disposed of as above.
C.K.ABDUL REHIM, JUDGE.
okb