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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. NAGARESH, J.
Kerala Public Service Commission – Petitioner
Versus
State Disability Commissioner – Respondent
W.P. (C) No. 40580 of 2022
Decided On : 05-05-2023
Constitution of India, 1950 - Article 226 - Right of Persons with Disabilities Act, 2016 - Section 80(b), 80, 81, 82 - Administrative Tribunals Act, 1985 - Section 4, 15 - Industrial Disputes Act, 1947 - Appointment to the post of Legal Assistant Grade-II in Law Department - Functions of State Commissioner - Order passed by State Commissioner for Persons with Disabilities, Kerala, Kerala Public Services Commission has approached Court invoking Article 226 of Constitution of India - Handicapped persons are entitled to get 3% of vacancies from 1996.
Findings of the Court:
Section 15 of Act, 1985 provides that Administrative Tribunal for a State shall exercise all jurisdictions, powers and authority in relation to recruitment and matters concerning recruitment to any civil service of the State or to any Civil Post under the State. Section 28 states that no court except the Supreme Court or any interstate Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 or any other corresponding law for the time being in force shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. The 1st respondent-State Disability Commissioner therefore cannot make adjudication on a service matter and direct appointment of a person to civil
Result: Writ Petition allowed.
JUDGMENT :
N. NAGARESH, J.
1. Aggrieved by an Order passed by the State Commissioner for Persons with Disabilities, Kerala, the Kerala Public Services Commission has approached this Court invoking Article 226 of the Constitution of India.
2. The 2nd respondent, who is a person with disability (hearing impaired), applied for appointment to the post of Legal Assistant Grade-II in the Law Department, Government Secretariat, in response to a notification issued by the Kerala Public Service Commission. The petitioner’s name was included in the additional rank list as No. 2 for the hearing impaired candidates. The 2nd respondent filed OP(RPWD) No. 564/S3/2020 before the State Commissioner for Persons with Disabilities, Kerala alleging that the Kerala PSC is not heeding to judgments which directed to fill up backlog vacancies for the differently abled persons, in the matter of appointment to the posts of Legal Assistants.
3. Before the Commissioner, the Kerala PSC submitted that as per GO dated 03.03.2011 the post of Legal Assistant was identified as fit to be filled up by Persons with Low Vision and Persons with Locomotor Disability. Original Rank List published included only the said two categories. By GO dated 26.11.2018, the Government included the category of Hearing Impaired also as fit for appointment. Hence, the Kerala PSC issued addendum notification dated 04.12.2019 including candidates with hearing impairment also. The petitioner was Rank No. 2 in the supplementary list. The candidate at Rank No. 1 was given appointment as Legal Assistant. From the entire rank lists, 44 candidates were appointed. As the next turn for Hearing Impaired did not reach, the petitioner was not appointed. The validity of the Rank List expired on 24.09.2020, before reaching the next turn.
4. The State Commissioner for Persons with Disabilities noted that the Hon’ble Apex Court has held in the judgment in Government of India, through Secretary and Another vs. Ravi Prakash Gupta and Another, 2010 KHC 4433 that reservation under Section 33 of the Act, 1995 is not dependent on identification of posts. This Court has followed the Apex Court’s judgment in Kerala Public Service Commission and Another vs. E. Dineshan and Another, 2016 (2) KHC 910. The State Commissioner noted that in the judgment in Dineshan’s case, the High Court has held that supplementary list is operative even after the expiry of main list and for filling up backlog vacancies, the supplementary list can be acted upon even after the expiry of main list.
5. The Commissioner accordingly gave the following directions:
(2) If it is found that there is no regular vacancy for accommodating the petitioner as Legal Assistant Gr.II in the Law Department at present, she will be accommodated in a supernumerary post and be accommodated in the regular service as the junior most Legal Assistant Gr.II as and when a vacancy arises.
(3) The 1st respondent Secretary, Kerala Public Service Commission shall issue advise memo for the appointment of the petitioner in the post of Legal Assistant Gr.II in the Law Department, Government of Kerala treating that the Ext.P3 as a valid (additional/ supplementary) rank list within 30 days from the date of getting communication from the 2nd respondent vide (1) or (2) as above.
(4) The 2nd respondent shall issue posting order to the petitioner as Legal Assistant Gr.II in the Law Department in a vacancy as specified in (1) or (2) above within 30 days from the date of receipt of communication f
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