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2017 Supreme(Online)(KER) 33628
HIGH COURT OF KERALA
P.V.ASHA, J
JOBY C ANTONY – Appellant
Versus
STATE OF KERALA Advocate - GOVERNMENT PLEADER, ,P BENNY THOMAS,M GOPIKRISHNAN NAMBIAR,P GOPINATH (SR ),GOVERNMENT PLEADER,K JOHN MATHAI,JOSON MANAVALAN,KURYAN THOMAS – Respondent
WRIT PETITION (CIVIL) 21755/2016
Temporary employment does not guarantee rights to continuation or regularization without proper identification of vacancies for disabled individuals under relevant statutes.
Headnote:
Disability - Employment Rights - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 - Sections 32, 33 - The court addressed the allowance of regularization for disabled individuals under employment provisions, emphasizing the identification of posts for the handicapped as required by the Act.
Fact of the Case:
The petitioner, a 65% disabled individual, challenged the non-renewal of his temporary appointment as a Welder and sought regularization based on provisions for disabled employees, presenting claims in light of past government orders.
Finding of the Court:
The court found that the petitioner’s appointment was temporary and that he was not eligible for regularization as the post of Welder had not been identified for physically handicapped persons. Therefore, the rights claimed under the Act were not applicable to his situation.
Issues: The principal issue was whether the petitioner was entitled to regularization and continuation in the Welder post, given his disability and the relevant legal provisions.
Ratio Decidendi: The court held that temporary appointments do not confer rights to continuation or regularization unless the positions are identified under the provisions of the Act for disabled employees.
Final Decision: The court denied the petitioner's request for extension and regularization, emphasizing compliance with legal provisions regarding identification of posts.
JUDGMENT
The petitioner was appointed as Welder under the 2nd respondent. The petitioner submits that he is a person with 65% disability and is fully qualified for appointment as Welder. His appointment was as per Ext.P4 for a period of 179 days for the period from 11.1.2016. The petitioner filed this writ petition on 27.6.2016 stating that he is under threat of termination and he is due to complete 179 days. The contention raised by the petitioner is that being a physically handicapped, he is entitled to be regularised under the respondents. The petitioner relies on the provisions contained in section 32 and 33 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and it is pointed out that the persons with disability, who were employed through Employment Exchange, were regularised in various establishments as per Ext.P6 order. The Government as well as the 2nd respondent has filed counter affidavits pointing out that the post of Welder is not identified for physically handicapped and petitioner's appointment was only against a temporary vacancy for a period of six months. The order Ext.P6 is one by which the Government ordered regularisation of W.P.(C) No.21755/2016 persons who were appointed between 16.8.1999 to 21.12.2003 through Employment Exchange who completed 179 days. The order Ext.P6 regularising the persons in the respective establishments where they were working was issued on the basis of a decision taken by the Government in favour of the physically handicapped candidates. The petitioner who was appointed in 2016 does not come under the purview of that order. It is pointed out that the Government has not issued any further order extending the benefit of Ext.P6. Those appointments were during the subsequent periods.
2. Heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing counsel appearing for respondents 2 to 4.
3. Even though the petitioner relies on various judgments of the Apex Court including Government of India through Secretary and another vs. Ravi Prakash Gupta and another [2010 (7) SCC 626] and Radhakrishnan vs. Cochin Devaswom Board, Thrissur and others [2015 (5) KHC 596] etc. in support of his contention, it is the duty of the Government to identify the posts for the physically handicapped in accordance with section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and to make the appointments. The said W.P.(C) No.21755/2016 question does not arise in this case, it was the petitioner's appointment was against a short term vacancy and his appointment was not after considering all the physically handicapped candidates who are eligible for appointment as Welder. The petitioner cannot also seek to continue in the post, since his appointment was only for a period of 179 days. At any rate as and when the Government issues orders of regularisation of persons with disability covering the period when the petitioner was appointed, the petitioner will also be entitled to the benefit. Similarly, if the post of Welder is identified for appointment to the physically handicapped and regular recruitment is being made under the respondents, the petitioner's case is also liable to be considered for regular appointment, based on his application.
Under the above circumstances, I do not find any reason to extend the interim order or to direct the respondents to allow the petitioner to continue in service beyond the term of his appointment. The respondents point out that the post of Welder under the 2nd respondent Company is not identified for appointment of physically handicapped. The learned counsel for the respondents submit that the posts under the 3% quota are already identified; but it does not include the post of Welder. In the above circumstances the Government shall consider whether the post of Welder is one which W.P.(C) No.21755/2016 can be identifi
