Point of law: There was no claim for appointment in the college raised by a person belonging to blind/low vision category, the petitioner's claim for appointment under the locomotor disability/cerebral palsy is sustainable.

JUDGMENT :

1. I am considering these two writ petitions together since, under challenge in them, is the same order issued by the State Commissioner for Persons with Disabilities, Kerala ("Commissioner" for short).

2. The proceedings before the Commissioner began on an application made by Smt. Safeena A. -who has been arrayed as a respondent in both these matters, alleging that the Manager of the "Sunniyya Arabic College" (College for short) has appointed Sri. Aboobacker E.K. (petitioner in W.P.(C).No.9709 of 2022) as an Assistant Professor, in violation of the Right of Persons with Disabilities Act, 2016 ("RPwD Act" for short)

3. The specific contention of Smt.Safeena A. before the Commissioner was that the Manager of the College could not have filled up the post in question through a notification inviting candidates solely from the general category, since it ought to have been reserved for persons with disabilities under the "RPwD Act", because the Government of Kerala had issued orders as early as on 31.10.2019, implementing the said Act, fixing the roster posts for being filled up with various categories of persons with disabilities. She submitted before the Commissioner that since the vacancy in question can only be construed as being a “backlog one”, the notification could have invited persons with disabilities alone and not anybody from the general category; but that, in flagrant violation of the same, he issued the impugned one deliberately suppressing the afore fact and then appointed Sri.Aboobacker E.K. from the general category.

4. It transpires, from the impugned order of the Commissioner -a copy of which has been produced as Ext.P9 in W.P.(C).No.5893 of 2022 and as Ext.P6 in W.P. (C).No.9709 of 2022, that the said Authority found in favour of Smt.Safeena A. and directed that the Manager of the College to issue “necessary order” for her appointment as Assistant Professor within three months. Certain corollary directions were also issued, including to the University of Calicut, not to approve the appointment of Sri.Aboobacker E.K.; and finally directing the Manager to file an action taken report under Section 81 of the RPwD Act.

5. The afore order of the Commissioner has been challenged by the Manager of the College in W.P. (C).No.5893 of 2022 and by Sri.Aboobacker E.K. in W.P. (C).No.9709 of 2022.

6. I have heard Sri. P.M. Pareeth – learned counsel for the petitioner in W.P.(C).No.5893 of 2022; Sri. Peter Jose Christo -learned counsel for the petitioner in W.P. (C).No.9709 of 2022; Smt. P.K. Nandini – learned counsel - counsel appearing for Smt. Safeena A.; Sri. P.C. Sasidharan – learned Standing Counsel for the Calicut University and Smt.Resmi Thomas – learned Government Pleader appearing for the official respondents.

7. Before I continue, I must upfront place on record certain concerns of this Court quathe impugned order of the Commissioner. For the first, the said order directs the Manager of the College to appoint the petitioner as an Assistant Professor, though it is conceded that she belongs to the "loco-motor disabled category" and is not "blind" or "hearing impaired". This is crucial because, going by Section 34 of the RPwD Act, even if the post in question was one which was deserving of being reserved for candidates under its ambit, it could have been offered only to a "blind" candidate and to no one else. It is only if no such candidate is available and consequently, a fresh notification issued, wherein, again persons from the "blind" or "the hearing impaired" categories are not available, can a person like the petitioner, with locomotor disability, be considered. However, the Commissioner has travelled around these provisions merely saying that since "there was no claim for appointment in the college raised by a person belonging to blind/low vision category, the petitioner's claim for appointment under the locomotor disability/cerebral palsy is sustainable"(sic).

8. Obviously, the afore holdings of the Co