IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN MONDAY, THE 8^TH DAY OF JANUARY 2024 / 18TH POUSHA, 1945 OP(KAT) NO. 263 OF 2022 ORDER IN OA (EKM) NO.285 OF 2022 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER/APPLICANT:

SATHISHA M, AGED 38 YEARS S/O KESHAVA, RANK HOLDER NO.21 IN MAIN LIST &

RANK HOLDER NO.1 IN SUPPLEMENTARY LIST (LOCOMOTORY DISABILITY/CEREBRAL PALSY) IN RANKED LIST NO.379/2018/SS V DATED 31.05.2018 RESIDING AT MADANDOOR HOUSE, KAYYAR P.O, UPPALA, KASARAGOD, PIN - 671322 BY ADVS.

RAGHUL SUDHEESH K.J.GLAXON J.LAKSHMI ELIZABETH MATHEW BINI DAS RESPONDENTS/RESPONDENTS:

1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

2 THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

3 KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM, PIN - 695004

4 THE DISTRICT OFFICER - KPSC, TIGER HILLS, BUILDING NO.KMC XII-38-D, MUNICIPAL ROAD, PULIKUNNU, KASARAGOD, PIN – 671121 BY SENIOR GOVERNMENT PLEADER BY SRI.P.C.SASIDHARAN, SC, KPSC THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

"CR"

JUDGMENT SHOBA ANNAMMA EAPEN, J.

The petitioner, a differently abled candidate with locomotor disability, is included in the ranked list dated 31.05.2018 to the post of High School Assistant (Mathematics - Kannada Medium) in the Education Department in Kasaragod District. He is the sole candidate included in the list of differently abled candidates for appointment against 3% earmarked vacancies. The said vacancies are set apart to the low vision category as well as hearing impairment category. The vacancies set apart for differently abled persons remained unfilled for want of candidates belonging to the low vision category as well as hearing impairment category. Hence, the petitioner filed Annex.A5 representation dated 26.06.2019 to appoint him in the vacancy set apart for differently abled persons. Aggrieved by non consideration of Annex.A5, the petitioner had filed OA(Ekm) No.1078/2019, pursuant to which, on a direction given by the tribunal, the request of the petitioner was denied as per Annex.A7, wherein it was concluded that the category interchange cannot be allowed and the petitioner cannot be given advice and appointment. Challenging the same, the petitioner again approached the tribunal, and after an elaborate consideration of the issue, the tribunal dismissed the original application filed by the petitioner. It is aggrieved by this, the petitioner is before this Court with this original petition.

2. The main grievance raised by the petitioner is that despite non availability of candidates belonging to low vision and hearing impairment categories in the list, the vacancy against the turns for differently abled category is set apart for the said categories itself. According to him, in the absence of candidates with specific disability, the same was to be interchanged among other categories of differently abled candidates and the petitioner, being a candidate with locomotor disability, who alone is included in the ranked list, has to be considered.

3. It is relevant to refer to Section 34(2) of the Rights of Persons with Disabilities Act, 2016 (for short, “the Act”), which reads thus;

“34. Reservation.-(1) xxxxxx (2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disabil