Point of Law: “Recruitment Year” cannot be a “Selection Year” as defined under the KS&SSR and can only be construed to be the year in which vacancies are available and in which recruitment is attempted.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

1. The interpretational purlieus of the words ‘recruitment year’ obtaining in Section 34 of the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as the ‘PWD Act’ for short), has been thrown upon for consideration of this Court because, the petitioner, who has low vision, seeks appointment against the vacancy statutorily earmarked for persons like him, which was unfilled in the previous year on account of the fact that a person with benchmark disability was not available.

2. It is the petitioner’s specific contention that when 4% reservation cannot be achieved in a particular year - which he asserts to be a ‘calendar year’ solely because a person with a benchmark disability to one of the enumerated categories was not available, an attempt should have been made in the next ‘recruitment year’ to fill up the said vacancy with the specified category of person and if it is still unsuccessful, then it should have been filled up through interchange among the five categories enumerated in Section 34 (a) to (d).

3. However, the Kerala Agricultural University, which is the primary respondent in this case, takes the stand that Section 34(2) of the ‘PWD Act’ would only concede to the interpretation that when a particular vacancy is not able to be filled up on account of absence of a candidate with the benchmark disability, it will have to be carried forward to the next selection process and that only if during such also, it remains vacant, can the principle of interchange among the persons with benchmark disabilities be adopted. They assert that it is the only manner in which Section 34(2) can be interpreted.

4. When this matter was heard by this Court on an earlier occasion, it became apparent - as is also admitted - that the issues projected have not been covered by direct precedents, either of this Court or of other Courts or of the Honourable Supreme Court. I, therefore, requested Sri. P.A. Harish - learned counsel of this Court to assist me as an Amicus Curiae, since any decision that this Court may take in this Writ Petition may have far reaching ramifications in future.

5. Sri. P.A. Harish - learned Amicus Curiae, today made extensive submissions on the scope, sweep and the ambit of the ‘PWD Act’ showing me that there is a distinct and clear difference between the concepts of ‘recruitment year’ and ‘selection year’ in law. He explained that since neither of these phrases are defined under the ‘PWD Act’ one is forced to search for it in the analogous statutes or executive orders, which holds the field. He then pointed out that, though in the Kerala State and Subordinate Service Rules, 1998 (hereinafter referred to as the KS&SSR Rules) - which have been brought into force under the sanction of Article 309 of the Constitution of India - the words ‘recruitment year’ have not been defined, one will get a glimpse of the concept of ‘selection year’ from the Explanation to Rule 15(a) thereof. He showed me that the phrase ‘selection year’ used in the afore provision stipulates that it shall be the period from the date on which the ‘Rank List of candidates comes into force, to the date on which it expires’.

6. Sri. P.A. Harish thus submitted that, as far as a ‘selection year’ is concerned, it will take into its fold multiple calender years, depending upon the life of the Rank List prepared; but that when it comes to ‘recruitment year’ the concept may be slightly different. He explained that, going by the grammatical meaning of the words ‘recruitment year’ it can only mean that in which the recruitment is conducted and he informed me that the various Office Memorandums (OM for short) of the Ministry of Personnel, Public Grievance and Department of Personal Training of the Government of India have adopted this phrase in a common pattern. He invited my attention to the Office Memorandum dated 04.03.2014 - which, he said, was prepared on the basis of a judgment of the Honourable Supreme Court in Uni