Read Full Judgment Here - Autonomous Institutions Cannot Deny Reservation Benefits to Disabled, Kerala HC Rules
Article on Times of India
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY,THE 8TH DAY OF JUNE 2015/18TH JYAISHTA, 1937
WP(C).No. 33953 of 2011 (T)
----------------------------
PETITIONER :
------------------
PRASANNA KUMARI. E. S, ERUVELIL WARRIOM,
CHOTTANIKARA P.O., ERNAKULAM DIST,
KERALA-682312
BY ADV. SMT.SANGEETHA LAKSHMANA
RESPONDENTS :
----------------------
1. THE REGISTRAR,
KANNUR UNIVERSITY,MANGATTUPARAMBU,
KANNUR UNIVERSITY CAMPUS P.O., KANNUR-670567, KERALA
2. VICE CHANCELLOR,
KANNUR UNIVERSITY,MANGATTUPARAMBU,
KANNUR UNIVERSITY CAMPUS P.O., KANNUR-670567, KERALA
ADDL.R3 IMPLEADED :
3. KAVITHA BALAKRISHNAN,
D/O.K.M.BALAKRISHNAN, AGED 36 YEARS,
SANJEEVANI DUTT COMPOUND, MANAKAVU.P.O.,
KOZHIKODE -673007.
ADDL. R3 IS IMPLEADED AS PER ORDER DATED 13/08/2012 IN
IA NO.10913/2012.
R1 & R2 BY ADV. SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY
BY ADV. SRI.P.K.IBRAHIM, SC, KANNUR UNIVERSITY
ADDL.R3 BY ADV. SRI.SAJITH KUMAR V.
BY ADV. SRI.C.P.JOHNY (ERNAKULAM)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-06-2015, ALONG WITH WPC. 19769/2012, THE COURT
ON 08-06-2015 DELIVERED THE FOLLOWING:
bp
WP(C).No. 33953 of 2011 (T)
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1:- A COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL
BOARD DTD 30/10/09
EXT.P2:- SERIES ACOPY OF THE EDUCATIONAL AND PROFESSIONAL
CERTIFICATE
(A): COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE
(B): MARK LIST-DEGREE(MAHATMA GANDHI UNIVERSITY)DTD
13/1/2004
C): COPY OF THE DEGREE OF BACHELOR OF LAW(MAHATAMA
GANDHI UNIVERSITY)DTD 4/7/2000
(D): COPY OF THE DEGREE OF COMMERCE ISSUED BY THE FACULTY
COMMERCE, (UNIVERSITY OF KERALA)DTD 29/4/1988
(E): COPY OF THE QUALIFICATION CERTIFICATE OF NATIONAL
ELIGIBILITY TEST FOR LECTURESHIP,ISSUED BY (UNIVERSITY
GRANTS COMMISSION)DTD 21/3/2005
(F): COPY OF THE CERTIFICATE OF ENROLLMENT (THE BAR COUNCIL
OF KERALA)DTD 25/4/2000
(G): COPY OF THE CERTIFICATE ISSUED BY THE KERALA HIGH
COURT BAR ASSOCIATION DTD 30/09/2010
(H): COPY OF THE WORK EXPERIENCE CERTIFICATE ISSUED BY FAITH
INDIA DTD 1/09/2010
EXT.P3:- A COPY OF THE NOTIFICATION ISSUED BY THE KANNUR UNIVERSITY
DTD 29/1/2008
EXT.P4:- A COPY OF THE MEMO ISSUED BY THE KANNUR UNIVERSITY
BEARING NO.AD.BI/APPONINTMENT /LR-LAW/2010 IS PRODUCED
DTD. ON 22/09/2010
EXT.P5:- A COPY OF THE G.O.DTD 29/5/1973 BEARING NO.C.O(P)NO.158/73/
PD DTD 3/12/1987
EXT.P6:- A COPY OF THE REPRESENTATION REGARDING INTERVIEW OF THE
POST ON LECTURER IN LAW HELD ON 5/10/2010,DTD 22/12/2010
EXT.P7:- A COPY OF THE APPLICATION MADE TO THE RIGHT TO INFORMATION
OFFICER DTD 22/11/2011
(A): TRANSLATION TO ENGLISH - ACOPY OF THE APPLICATION MADE
TO THE RIGHT TO INFORMATION OFFICER DTD 22/11/2011.
WP(C).NO. 33953 OF 2011 (T)
EXT.P8:- COPY OF THE DOCUMENT ISSUED BY KANNUR UNIVERSITY BEARING
NO. RTI/MISC/VO.1.VIII/08 DT 23/12/2011.
EXT.P9:- COPY OF THE DOCUMENT ISSUED BY KANNUR UNIVERSITY BEARING
NO.RTI/MISC/VOI.VIII/O8 DT 29/12/2011.
RESPONDENTS' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
-------------------------------
W.P.(C).NO.33953 OF 2011 (T)
&
W.P.(C).NO.19769 OF 2012 (U)
-----------------------------------
Dated this the 8th day of June, 2015
J U D G M E N T
As both these writ petitions involve a common issue, they are
taken up for consideration together and disposed by this common
judgment. For the sake of convenience, the reference to facts and
exhibits is from W.P.(C).No.33953/2011.
2. The petitioner is a visually impaired person with 100%
disability as certified by a Medical Board. She acquired an LLB
Degree followed by a Post Graduate Degree (LLM) and also obtained
the National Eligibility Test [NET] qualification that is mandated by
the University Grants Commission for appointment as Lecturers. In
the year 2008, the petitioner responded to Ext.P3 notification dated
29.1.2008 issued by the Kannur University inviting applications for
the post of Lecturer in Law. In the said notification, one post of
Lecturer in the Department of Law was notified, and was reserved for
physically handicapped persons. The notification made it clear that if
W.P.(C).NO.33953/2011
& 2
W.P.(C).NO.19769/2012
there were no eligible candidates from the category for which the post
was reserved, candidates belonging to other eligible categories
including open category would be considered strictly as per the norms
stipulated in the Kerala State & Subordinate Services Rules, 1958.
The qualifications for the post of Lecturer were prescribed as follows:
Qualifications:
As per UGC norms as follows:
Lecturer:-
1. Good academic record with at least 55% of the marks
or an equivalent grade of B in the seven point scale
with latter grades O, A, B, C, D, E and F at masters
degree level, in the relevant subject from an Indian
University, or an equivalent degree from a foreign
University.
2. The candidate should have cleared the National
Eligibility Test (N.E.T.) conducted by the U.G.C.,
C.S.I.R. or similar test accredited by the U.G.C.
(Note: Candidates having Ph.D. degree in the subject
concerned are exempted from N.E.T.)
Thereafter the stipulation with regard to age was prescribed as
follows:
Age: (As on 01-01-2008)
Below 40 years
Usual relaxation in upper age will be given to candidates
belonging to SC, ST, OBC and other categories as per
University rules.
The candidates were required to submit an application form to reach
W.P.(C).NO.33953/2011
& 3
W.P.(C).NO.19769/2012
the Registrar of Kannur University, and the application form was to be
accompanied by attested copies of the certificates proving age,
qualifications, experience, community, non creamy-layer certificate
etc. The petitioner complied with the procedural conditions in the
notification and submitted her application within time. Thereafter, by
Ext.P4 memo dated 22.9.2010, the petitioner was directed to appear
before the Selection Committee for an interview, in connection with
the appointment to the post of Lecturer in Law in the University
Teaching Department, on 5.10.2010. Ext.P4 memo directed the
petitioner to be present on that day at the University office along with
the original certificates to prove age, academic qualifications,
community, experience, non creamy-layer certificate and other
documents as required in the notification. It was made clear in the
memo that insofar as the post was reserved for physically
handicapped candidates, a certificate from the medical authority
concerned had also to be produced at the time of interview. The
stipulation in the notification that if there were no eligible candidates
from the category for which the post was reserved, candidates
belonging to other reserved category would be considered and in their
absence, open category candidates also would be considered as
prescribed in the notification, was reiterated. It is the case of the
W.P.(C).NO.33953/2011
& 4
W.P.(C).NO.19769/2012
petitioner that when she attended the interview pursuant to Ext.P4
memo, a question was raised at the interview with regard to the age
of the petitioner and the petitioner clarified to the Selection
Committee that, by virtue of Ext.P5 Government order dated
29.5.1973 as also Government order dated 25.5.1984 issued by the
State Government, she was entitled to the benefit of age relaxation as
contemplated for physically handicapped candidates under the siad
Government orders. The facts in the writ petition would disclose that
when no communication was received from the respondent University
for long time, despite the petitioner having preferred Ext.P6
representation seeking clarification regarding the status of the
selection proceedings, the petitioner was constrained to approach this
Court through W.P.(C).No.33953/2011. During the pendency of the
said writ petition, and through a counter affidavit filed in the above
writ petition by the 3rd respondent, the petitioner came to understand
that the 3rd respondent was appointed to the post of Lecturer in Law
with effect from 21.12.2011. Inasmuch as the 3rd respondent was a
candidate under the open category and the notification dated
29.1.2008 issued by the University was for the post of Lecturer in Law
reserved for physically handicapped candidates, the petitioner
challenged the selection of the 3rd respondent through W.P.(C).
W.P.(C).NO.33953/2011
& 5
W.P.(C).NO.19769/2012
No.19769/2012. In the said writ petition, the petitioner claims the
following reliefs:
i. Issue a Writ of Mandamus or any other appropriate
Order or Direction declaring that the appointment
granted to the Fourth Respondent on 21.12.2011 by
the First and Second Respondents to the post of
Lecturer in Law, called under the vacancy and
reservation Quota for Physically Handicapped as per
Exhibit P1 Appointment Notification Dt.29.01.2008
No.Acad/B3/CTP/UGC-X/04(RN) issued by the First
Respondent Kannur University, as illegal;
ii. Issue a Writ of Mandamus or any other
appropriate Order or Direction declaring that the
Petitioner herein is entitled to be appointed as a
Lecturer in Law, called under the vacancy and
reservation Quota for Physically handicapped as per
Exhibit P1 Appointment Notification Dt.29.01.2008
No.Acad/B3/CTP/UGC-X/04(RN) issued by the First
Respondent Kannur University.
iii. Issue a Writ of Mandamus or any other
appropriate Writ, Order or Direction, directing the
First and Second Respondents to grant all benefits to
the Petitioner herein including arrears of salary with
interest and seniority consequential to Prayer (ii)
above;
iv. Issue such other Writ, Order or Direction as this
Hon'ble Court may deem fit in the circumstances of
this case, in the interest of justice.
3. A counter affidavit has been filed on behalf of respondents 1
to 3, who represent the Kannur University in W.P.(C).No.19769/2012.
It is pointed out that the Government orders pertaining to age
relaxation in respect of physically handicapped persons was
W.P.(C).NO.33953/2011
& 6
W.P.(C).NO.19769/2012
implemented in the respondent University only through Ext.R-1(a)
proceedings dated 21.1.2009. It is pointed out that Ext.R-1(a)
proceedings themselves were drawn up to comply with the directions
of the State Government in Ext.R-1(b) order dated 1.3.2008 that
directed the University to adopt the age relaxation norms in the
University. The gist of the contentions of the respondents in the
counter affidavit is that, on the last date of receipt of applications
pursuant to the notification dated 29.1.2008, the respondent
University had not adopted the Government orders governing age
relaxation in respect of physically handicapped persons, and, hence,
inasmuch as the petitioner was admittedly beyond 40 years of age [40
years and 7 months] as on 1.1.2008, the cut-off date prescribed in the
notification, the petitioner did not satisfy the eligibility requirements
for appointment to the post in question. It is also contended that
although the respondent University had implemented the age
relaxation norms in the University with effect from 21.1.2009, the
norms could not be made applicable to the case of the petitioner
because the said adoption of the Government order had only
prospective effect in respect of notifications issued after the date of
adoption. The aforesaid contentions are reiterated in the counter
affidavit of the 4th respondent [the 3rd respondent in W.P.(C).
W.P.(C).NO.33953/2011
& 7
W.P.(C).NO.19769/2012
No.33953/2011] and hereinafter referred to as the '3rd respondent' in
this judgment]. Apart from the above, it is also the contention of the
3rd respondent that the post of Lecturer in Law was not a post that
was identified by the Government as one that could be reserved for
physically handicapped persons, including visually handicapped
persons. It is the case of the 3rd respondent that the post of Lecturer
in Law was notified as a post that could be reserved for physically
handicapped persons only by the Government order dated
17.10.2012, and, hence, the notification issued by the University
inviting applications from the physically handicapped persons for the
post of Lecturer in Law, was itself illegal. It is further pointed out
that the respondent University had in fact already filled up the post of
Lecturer in Law, reserved for physically handicapped persons, by the
appointment of a candidate on 2.5.2007. While the said candidate had
since resigned from the post, the fact remains that the post reserved
for physically handicapped persons was already utilized, and
therefore, there was no justification for a further reservation through
the notification that is the subject matter of the present writ petitions.
4. I have heard Smt.Prasanna Kumari E.S., the petitioner in
both the writ petitions, who appeared in person in W.P.(C).
W.P.(C).NO.33953/2011
& 8
W.P.(C).NO.19769/2012
No.19769/2012, Smt.Sangeetha Lakshmana, the learned counsel
appearing for the petitioner in W.P.(C).No.33953/2011,
Sri.V.Muhammed, the learned Standing counsel appearing for the
Kannur University as also Sri.V.Sajith Kumar, the learned counsel
appearing for the 3rd respondent.
5. On a consideration of the facts and circumstances of the case
as also the submissions made across the bar, I find that the main issue
to be decided in the instant case is whether the petitioner, who is
admittedly a physically handicapped person having 100% disability,
and possessed of the required academic qualification for the post of
Lecturer in Law that was notified on 29.1.2008, could be said to be
disqualified on account of the fact that she was aged 40 years and
seven months as on 1.1.2008, the cut-off date mentioned in the
notification. The issue assumes significance because in the
notification itself, there is an express provision which states that
"usual relaxation in upper age will be given to candidates belonging to
SC, ST, OBC and other categories as per University rules". It is the
case of the petitioner that inasmuch as it is the admitted case that the
University had adopted the Government orders granting age
relaxation to physically handicapped persons, with effect from
W.P.(C).NO.33953/2011
& 9
W.P.(C).NO.19769/2012
21.1.2009, she was entitled to the benefit of the said age relaxation
norms at least by 5.10.2010, when she attended the interview
pursuant to Ext.P4 memo dated 22.9.2010 that was issued to her
calling her for the same. Alternatively, it is her contention that even
de hors a formal adoption of the Government orders by the
respondent University, the University which answers to the
description of "State" within the meaning of the term under Article 12
of the Constitution of India, was obliged to follow the Governmental
norms with regard to age relaxation for physically handicapped
persons, while completing the selection process. It is her specific
contention that the respondent University erred in finding that there
was no person qualified for appointment under the physically
handicapped quota and thereafter appointing the 3rd respondent, who
was an open category candidate, to the said post.
6. Per contra, the learned counsel for the respondent
University, as well as for the 3rd respondent, would vehemently
contend that inasmuch as the petitioner was not qualified in terms of
the notification as on the last date of reciept of applications
contemplated under the notification, the petitioner could not claim a
right to be considered for the post that was notified by the respondent
W.P.(C).NO.33953/2011
& 10
W.P.(C).NO.19769/2012
University. Reliance is placed on the following decisions in support of
the said contention:
1. Sundaresa Kamath v. Kitty Lopez - [1991 (1) KLT 741]
2. Dr.Ami Lal Bhat v. State of Rajasthan and Others - [(1997) 6 SCC
614]
3. Vosto Paul v. The Kerala Public Service Commission - [Laws(Ker)-
2000-4-25]
4. Bhupinderpal Singh and Others v. State of Punjab and Others -
[(2000) 5 SCC 262]
5. Praveen.A. v. High Court of Kerala and Others - [2007 (4) KHC
307]
6. A.Manoharan and Others v. Union of India and Others - [(2008) 3
SCC 641]
7. Asha P. And Others v. State of Kerala and Others - [2009 (4) KHC
721 (DB)]
8. Bedanga Talukdar v. Saifudaullah Khan - [Laws(SC)-2011-9-14]
9. Tamilnadu Association For The Rights Off All Types Of Differently
Abled And Care Givers Taratdac, Rep. By its State Secretary
S.Namburajan v. Secretary To Government, Differently Abled Welfare
Department - [Laws(Mad)-2012-6119]
10. Anil Kumar Bansal v. State of Chhattisgarh - [Laws (Chh)-2013-
10-51]
7. On a consideration of the rival submissions, I am of the view
that the settled legal position, that the determination of eligibility of a
candidate in a selection process must be with reference to the cut-off
date specified in the notification itself, or as on the last date of receipt
of applications pursuant to the notification, does not call for any
W.P.(C).NO.33953/2011
& 11
W.P.(C).NO.19769/2012
debate. The issue in this case, however, is not as to whether the
petitioner was qualified, either in terms of educational qualifications
or in terms of age, as on the date prescribed in the notification or as
on the last date of reciept of applications stipulated in the notification.
The notification is categoric when it states that the age of 40 years
has to be determined as on 1.1.2008. Admittedly, the petitioner was
40 years and 7 months as on 1.1.2008. The notification, however,
specified that candidates would be entitled to the usual relaxation in
upper age that is given to candidates belonging to SC, ST, OBC and
other categories as per University rules. The issue to be considered,
therefore, is whether, as per the University rules that existed on the
date of the notification, an age relaxation in respect of physically
handicapped persons was contemplated or not. It is not in dispute in
the instant case that, by Ext.R-1(a) proceedings dated 21.1.2009, the
respondent University itself had adopted the Government orders
granting age relaxation to physically handicapped persons and
thereby expressly included the same in its Rules. Does it follow that
prior to the date of adoption of the Government orders on age
relaxation, the University Rules did not contemplate the grant of such
age relaxation to physically handicapped persons? To answer that
question, one has to consider the following aspects:
W.P.(C).NO.33953/2011
& 12
W.P.(C).NO.19769/2012
(a) The respondent University itself had identified a
post of Lecturer in Law as suitable for reservation
for physically handicapped persons.
(b) The notification dated 29.1.2008 was issued for
the purposes of identifying such a candidate.
(c) The notification also envisaged a relaxation of
upper age limit in respect of candidates belonging
to SC, ST, OBC and other categories as per the
University Rules.
(d) The selection procedure that commenced with the
issuance of the notification dated 29.1.2008 was
not completed till 5.10.2010, the date on which
the petitioner was interviewed by the Selection
Committee and was required to produce
certificates that showed her eligibility for the
post.
(e) On 20.1.2009, well before the date of interview of
the petitioner, the respondent University had
expressly adopted the Government orders
granting relaxation of upper age to physically
handicapped persons into its Rules.
(f) The Government orders, governing age relaxation
for physically handicapped persons, that were
issued after 1995 have necessarily to be viewed in
W.P.(C).NO.33953/2011
& 13
W.P.(C).NO.19769/2012
the backdrop of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995, hereinafter referred
to as the 'Disabilities Act, 1995', and seen to be
issued by the State Government pursuant to its
obligations under the said Act. The said orders
therefore partook of the nature of "Law" as far as
the University was concerned, since it was a body
that received aid from the State Government and
hence obliged to further the objects of the
Disabilities Act, along with the State Government.
It followed, therefore, that the University was not
required to expressly adopt the relevant
Government orders before deeming it to be a part
of its Rules. The said Government orders had to
be read into the Rules as forming part thereof
even without an express act of adoption. In that
sense, the act of adoption through Ext.R-1(a)
proceedings could only be seen as one intended to
clarify the pre-existing legal position.
(g) The respondent University, that would fall within
the ambit of the term "State" as defined under
Article 12 of the Constitution of India, was even
otherwise obliged to adopt the age relaxation
norms stipulated by the State Government
pursuant to the latter's obligation under the
Disabilities Act, 1995. This would have been
necessitated so as to further the Legislative intent
expressed under the Disabilities Act, 1995.
W.P.(C).NO.33953/2011
& 14
W.P.(C).NO.19769/2012
An overall consideration of the aforesaid aspects leads me to conclude
that it was not open to the respondent University to have relied on a
technical plea, that the adoption of the Government orders governing
age relaxation was only with effect from a date subsequent to the date
of notification, so as to defeat the lawful rights of the petitioner to be
considered for the post in question.
8. There is yet another aspect of the matter. The Disabilities
Act, 1995 was enacted to give effect to the proclamation on the Full
Participation and Equality of the People in the Asian and Pacific
Region. In a meeting to launch the Asian and Pacific Decade of the
Disabled Persons, 1993-2002 convened by the Economic and Social
Commission for Asian and Pacific Region, which was held at Beijing
from 1.12.1992 to 5.12.1992, a proclamation was adopted on the Full
Participation and Equality of the People with Disabilities in the Asian
and Pacific Region. India is a signatory to the said Proclamation. The
Proclamation itself was on the following lines:
"To give full effect to the Proclamation it was felt
necessary to enact a legislation to provide for the
following matters:
(i) to spell out the responsibility of the State
towards the prevention of disabilities, protection of
rights, provision of medical care, education,
training, employment and rehabilitation of persons
W.P.(C).NO.33953/2011
& 15
W.P.(C).NO.19769/2012
with disabilities;
(ii) to create barrier-free environment for
persons with disabilities;
(iii) to remove any discrimination against
persons with disabilities in the sharing of
development benefits, vis-a-vis non-disabled
persons;
(iv) to counteract any situation of the abuse
and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive
development of programmes and services and
equalisation of opportunities for persons with
disabilities; and
(vi) to make special provision for the
integration of persons with disabilities into the
social mainstream."
The Disabilities Act, 1995, inter alia contains in Chapter VI thereof,
provisions relating to the employment of disabled persons through the
device of reservation of posts, establishment of Special Employment
Exchanges, the formulation of schemes for ensuring employment of
persons with disabilities and the reservation and setting apart of not
less than 3% seats in Government educational institutions and other
educational institutions receiving aid from Government etc. The
Disabilities Act also specifically stipulates that if in any recruitment
year, any vacancy cannot be filled up due to non-availability of
persons with disabilities, such vacancy shall be carried forward. If, in
the succeeding year, the vacancies in the respective categories cannot
yet again be filled up by an eligible candidate, the vacancy must first
enure to the benefit of any of the other specified categories; and only
W.P.(C).NO.33953/2011
& 16
W.P.(C).NO.19769/2012
in the event that there are no candidates available even in the other
categories, can the employer fill up the reserved vacancy through a
general appointment. It is apparent from a perusal of the Scheme of
the Disabilities Act, 1995, and in particular, Sections 38 and 39
thereof, that once the appropriate Government issues an order
granting age relaxation to physically handicapped candidates,
pursuant to its obligation to formulate schemes for ensuring
employment of persons with disabilities, then a failure to implement
such schemes by authorities or other bodies that draw aid from the
State Government for their functioning, can be remedied through the
issuance of a writ of mandamus [See Pradip Kumar Maity v.
Chinmoy Kumar Bhunia and Others - [(2013) 11 SCC 122]].
This, coupled with the fact that the Disabilities Act, 1995 itself is a
Social Welfare Legislation, the provisions of which much receive
liberal interpretation, would mandate that the respondent University
be compelled to follow the age relaxation norms stipulated by the
State Government while selecting candidates belonging to the
physically handicapped category. In the instant case, this legal
position assumes greater significance when one considers that the
very object of the notification in question was to identify a physically
handicapped candidate to the post.
W.P.(C).NO.33953/2011
& 17
W.P.(C).NO.19769/2012
9. I must now deal with the contention of the respondents, with
reference to case law, that the petitioner did not possess the requisite
age qualification as on the cut-off date specified in the notification.
No doubt, if the notification had only prescribed a cut-off date and did
not provide for any relaxation of the upper age limit, the plethora of
case law relied upon by the respondents would have come to their aid
to effectively contend that the petitioner could not lay a valid claim for
consideration of her candidature. The notification, in the instant case,
however, contained an express provision conferring an age relaxation
as per the University Rules. Thus, the present is a case where even
the author of the notification envisaged the grant of an age relaxation
wherever the Rules permitted. As already noted above, the
Government orders granting age relaxation formed an integral part of
the Rules of the respondent University in this case, and, hence, the
decisions relied upon by the respondents are clearly distinguishable
on facts. The other contention raised on behalf of the 3rd respondent,
namely that the post in question was not notified for filling up with
physically handicapped candidates till 2012, cannot also be sustained.
As a matter of fact, the post was notified for filling up even under the
Government orders issued prior to 2012. That apart, in the instant
W.P.(C).NO.33953/2011
& 18
W.P.(C).NO.19769/2012
case, the respondent University had unilaterally decided to reserve
the post in question for physically handicapped persons. The said
action of the respondent University in notifying the post in question
for filling up through a physically handicapped person was not
challenged by any one, including the 3rd respondent, at at any stage.
Under the said circumstances, I am of the view that the 3rd
respondent cannot be permitted to raise such a challenge collaterally
in these proceedings.
10. The upshot of the aforesaid discussion is that the
respondent University erred in not considering the candidature of the
petitioner for selection to the post of Lecturer in Law, against the post
reserved for physically handicapped candidates, at the time of
interview on 5.10.2010. I am of the view that the suitability of the
petitioner for the post in question has to be considered by the
respondent University, after treating the petitioner as one who is
eligible for appointment to the said post. As regards the appointment
of the 3rd respondent in W.P.(C).No.33953/2011 [4th respondent in
W.P.(C).No.19769/2012], my findings above would mandate that the
appointment of the 3rd respondent as Lecturer in Law in the
respondent University with effect from 21.12.2011, pursuant to a
W.P.(C).NO.33953/2011
& 19
W.P.(C).NO.19769/2012
decision taken by the respondent University, to make appointments
from the open category candidates, after finding that there was no
physically handicapped persons that could be appointed, is to be
annulled. I take note, however, of the submission of the learned
counsel for the 3rd respondent that an annulment of the appointment
of the 3rd respondent, at this stage, would seriously affect her
prospects of getting another job considering her age and other
factors. I also find that this unfortunate predicament of the 3rd
respondent has arisen solely on account of an erroneous stand
adopted by the respondent University that there was no qualified
candidate to be appointed under the Physically handicapped category.
Under the said circumstances, I direct the respondent University to
consider the case of the 3rd respondent for retaining her, if possible,
against any other vacancy in a sanctioned post or through the
creation of a supernumerary post, if the rules of the respondent
University so permit.
In conclusion, the writ petitions are allowed by holding as
follows:
(i) The action of the respondent University in not
considering the suitability of the petitioner for the
post of Lecturer in Law, under the quota earmarked
for physically handicapped candidates, is clearly
illegal.
W.P.(C).NO.33953/2011
& 20
W.P.(C).NO.19769/2012
(ii) The appointment of the 3rd respondent to the
post of Lecturer in Law, pursuant to the notification
that was intended for physically handicapped
candidates, and consequent to a finding that there
was no such candidate available, is declared illegal.
Accordingly, the order of the respondent University
appointing the 3rd respondent as Lecturer in Law
with effect from 21.12.2011, shall stand annulled.
(iii) The respondent University is directed to
consider the suitability of the petitioner for the post
notified, through the notification dated 29.1.2008,
by treating her as a candidate who has the
necessary age qualification for the post and is
otherwise eligible for the post. The respondent
University shall complete the aforesaid exercise
within a period of two months from the date of
receipt of copy of this judgment.
(iv) There will be no order as to costs.
A.K.JAYASANKARAN NAMBIAR
JUDGE
prp
Article on Times of India
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY,THE 8TH DAY OF JUNE 2015/18TH JYAISHTA, 1937
WP(C).No. 33953 of 2011 (T)
----------------------------
PETITIONER :
------------------
PRASANNA KUMARI. E. S, ERUVELIL WARRIOM,
CHOTTANIKARA P.O., ERNAKULAM DIST,
KERALA-682312
BY ADV. SMT.SANGEETHA LAKSHMANA
RESPONDENTS :
----------------------
1. THE REGISTRAR,
KANNUR UNIVERSITY,MANGATTUPARAMBU,
KANNUR UNIVERSITY CAMPUS P.O., KANNUR-670567, KERALA
2. VICE CHANCELLOR,
KANNUR UNIVERSITY,MANGATTUPARAMBU,
KANNUR UNIVERSITY CAMPUS P.O., KANNUR-670567, KERALA
ADDL.R3 IMPLEADED :
3. KAVITHA BALAKRISHNAN,
D/O.K.M.BALAKRISHNAN, AGED 36 YEARS,
SANJEEVANI DUTT COMPOUND, MANAKAVU.P.O.,
KOZHIKODE -673007.
ADDL. R3 IS IMPLEADED AS PER ORDER DATED 13/08/2012 IN
IA NO.10913/2012.
R1 & R2 BY ADV. SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY
BY ADV. SRI.P.K.IBRAHIM, SC, KANNUR UNIVERSITY
ADDL.R3 BY ADV. SRI.SAJITH KUMAR V.
BY ADV. SRI.C.P.JOHNY (ERNAKULAM)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 04-06-2015, ALONG WITH WPC. 19769/2012, THE COURT
ON 08-06-2015 DELIVERED THE FOLLOWING:
bp
WP(C).No. 33953 of 2011 (T)
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1:- A COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE MEDICAL
BOARD DTD 30/10/09
EXT.P2:- SERIES ACOPY OF THE EDUCATIONAL AND PROFESSIONAL
CERTIFICATE
(A): COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE
(B): MARK LIST-DEGREE(MAHATMA GANDHI UNIVERSITY)DTD
13/1/2004
C): COPY OF THE DEGREE OF BACHELOR OF LAW(MAHATAMA
GANDHI UNIVERSITY)DTD 4/7/2000
(D): COPY OF THE DEGREE OF COMMERCE ISSUED BY THE FACULTY
COMMERCE, (UNIVERSITY OF KERALA)DTD 29/4/1988
(E): COPY OF THE QUALIFICATION CERTIFICATE OF NATIONAL
ELIGIBILITY TEST FOR LECTURESHIP,ISSUED BY (UNIVERSITY
GRANTS COMMISSION)DTD 21/3/2005
(F): COPY OF THE CERTIFICATE OF ENROLLMENT (THE BAR COUNCIL
OF KERALA)DTD 25/4/2000
(G): COPY OF THE CERTIFICATE ISSUED BY THE KERALA HIGH
COURT BAR ASSOCIATION DTD 30/09/2010
(H): COPY OF THE WORK EXPERIENCE CERTIFICATE ISSUED BY FAITH
INDIA DTD 1/09/2010
EXT.P3:- A COPY OF THE NOTIFICATION ISSUED BY THE KANNUR UNIVERSITY
DTD 29/1/2008
EXT.P4:- A COPY OF THE MEMO ISSUED BY THE KANNUR UNIVERSITY
BEARING NO.AD.BI/APPONINTMENT /LR-LAW/2010 IS PRODUCED
DTD. ON 22/09/2010
EXT.P5:- A COPY OF THE G.O.DTD 29/5/1973 BEARING NO.C.O(P)NO.158/73/
PD DTD 3/12/1987
EXT.P6:- A COPY OF THE REPRESENTATION REGARDING INTERVIEW OF THE
POST ON LECTURER IN LAW HELD ON 5/10/2010,DTD 22/12/2010
EXT.P7:- A COPY OF THE APPLICATION MADE TO THE RIGHT TO INFORMATION
OFFICER DTD 22/11/2011
(A): TRANSLATION TO ENGLISH - ACOPY OF THE APPLICATION MADE
TO THE RIGHT TO INFORMATION OFFICER DTD 22/11/2011.
WP(C).NO. 33953 OF 2011 (T)
EXT.P8:- COPY OF THE DOCUMENT ISSUED BY KANNUR UNIVERSITY BEARING
NO. RTI/MISC/VO.1.VIII/08 DT 23/12/2011.
EXT.P9:- COPY OF THE DOCUMENT ISSUED BY KANNUR UNIVERSITY BEARING
NO.RTI/MISC/VOI.VIII/O8 DT 29/12/2011.
RESPONDENTS' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
'C.R.'
A.K.JAYASANKARAN NAMBIAR, J.
-------------------------------
W.P.(C).NO.33953 OF 2011 (T)
&
W.P.(C).NO.19769 OF 2012 (U)
-----------------------------------
Dated this the 8th day of June, 2015
J U D G M E N T
As both these writ petitions involve a common issue, they are
taken up for consideration together and disposed by this common
judgment. For the sake of convenience, the reference to facts and
exhibits is from W.P.(C).No.33953/2011.
2. The petitioner is a visually impaired person with 100%
disability as certified by a Medical Board. She acquired an LLB
Degree followed by a Post Graduate Degree (LLM) and also obtained
the National Eligibility Test [NET] qualification that is mandated by
the University Grants Commission for appointment as Lecturers. In
the year 2008, the petitioner responded to Ext.P3 notification dated
29.1.2008 issued by the Kannur University inviting applications for
the post of Lecturer in Law. In the said notification, one post of
Lecturer in the Department of Law was notified, and was reserved for
physically handicapped persons. The notification made it clear that if
W.P.(C).NO.33953/2011
& 2
W.P.(C).NO.19769/2012
there were no eligible candidates from the category for which the post
was reserved, candidates belonging to other eligible categories
including open category would be considered strictly as per the norms
stipulated in the Kerala State & Subordinate Services Rules, 1958.
The qualifications for the post of Lecturer were prescribed as follows:
Qualifications:
As per UGC norms as follows:
Lecturer:-
1. Good academic record with at least 55% of the marks
or an equivalent grade of B in the seven point scale
with latter grades O, A, B, C, D, E and F at masters
degree level, in the relevant subject from an Indian
University, or an equivalent degree from a foreign
University.
2. The candidate should have cleared the National
Eligibility Test (N.E.T.) conducted by the U.G.C.,
C.S.I.R. or similar test accredited by the U.G.C.
(Note: Candidates having Ph.D. degree in the subject
concerned are exempted from N.E.T.)
Thereafter the stipulation with regard to age was prescribed as
follows:
Age: (As on 01-01-2008)
Below 40 years
Usual relaxation in upper age will be given to candidates
belonging to SC, ST, OBC and other categories as per
University rules.
The candidates were required to submit an application form to reach
W.P.(C).NO.33953/2011
& 3
W.P.(C).NO.19769/2012
the Registrar of Kannur University, and the application form was to be
accompanied by attested copies of the certificates proving age,
qualifications, experience, community, non creamy-layer certificate
etc. The petitioner complied with the procedural conditions in the
notification and submitted her application within time. Thereafter, by
Ext.P4 memo dated 22.9.2010, the petitioner was directed to appear
before the Selection Committee for an interview, in connection with
the appointment to the post of Lecturer in Law in the University
Teaching Department, on 5.10.2010. Ext.P4 memo directed the
petitioner to be present on that day at the University office along with
the original certificates to prove age, academic qualifications,
community, experience, non creamy-layer certificate and other
documents as required in the notification. It was made clear in the
memo that insofar as the post was reserved for physically
handicapped candidates, a certificate from the medical authority
concerned had also to be produced at the time of interview. The
stipulation in the notification that if there were no eligible candidates
from the category for which the post was reserved, candidates
belonging to other reserved category would be considered and in their
absence, open category candidates also would be considered as
prescribed in the notification, was reiterated. It is the case of the
W.P.(C).NO.33953/2011
& 4
W.P.(C).NO.19769/2012
petitioner that when she attended the interview pursuant to Ext.P4
memo, a question was raised at the interview with regard to the age
of the petitioner and the petitioner clarified to the Selection
Committee that, by virtue of Ext.P5 Government order dated
29.5.1973 as also Government order dated 25.5.1984 issued by the
State Government, she was entitled to the benefit of age relaxation as
contemplated for physically handicapped candidates under the siad
Government orders. The facts in the writ petition would disclose that
when no communication was received from the respondent University
for long time, despite the petitioner having preferred Ext.P6
representation seeking clarification regarding the status of the
selection proceedings, the petitioner was constrained to approach this
Court through W.P.(C).No.33953/2011. During the pendency of the
said writ petition, and through a counter affidavit filed in the above
writ petition by the 3rd respondent, the petitioner came to understand
that the 3rd respondent was appointed to the post of Lecturer in Law
with effect from 21.12.2011. Inasmuch as the 3rd respondent was a
candidate under the open category and the notification dated
29.1.2008 issued by the University was for the post of Lecturer in Law
reserved for physically handicapped candidates, the petitioner
challenged the selection of the 3rd respondent through W.P.(C).
W.P.(C).NO.33953/2011
& 5
W.P.(C).NO.19769/2012
No.19769/2012. In the said writ petition, the petitioner claims the
following reliefs:
i. Issue a Writ of Mandamus or any other appropriate
Order or Direction declaring that the appointment
granted to the Fourth Respondent on 21.12.2011 by
the First and Second Respondents to the post of
Lecturer in Law, called under the vacancy and
reservation Quota for Physically Handicapped as per
Exhibit P1 Appointment Notification Dt.29.01.2008
No.Acad/B3/CTP/UGC-X/04(RN) issued by the First
Respondent Kannur University, as illegal;
ii. Issue a Writ of Mandamus or any other
appropriate Order or Direction declaring that the
Petitioner herein is entitled to be appointed as a
Lecturer in Law, called under the vacancy and
reservation Quota for Physically handicapped as per
Exhibit P1 Appointment Notification Dt.29.01.2008
No.Acad/B3/CTP/UGC-X/04(RN) issued by the First
Respondent Kannur University.
iii. Issue a Writ of Mandamus or any other
appropriate Writ, Order or Direction, directing the
First and Second Respondents to grant all benefits to
the Petitioner herein including arrears of salary with
interest and seniority consequential to Prayer (ii)
above;
iv. Issue such other Writ, Order or Direction as this
Hon'ble Court may deem fit in the circumstances of
this case, in the interest of justice.
3. A counter affidavit has been filed on behalf of respondents 1
to 3, who represent the Kannur University in W.P.(C).No.19769/2012.
It is pointed out that the Government orders pertaining to age
relaxation in respect of physically handicapped persons was
W.P.(C).NO.33953/2011
& 6
W.P.(C).NO.19769/2012
implemented in the respondent University only through Ext.R-1(a)
proceedings dated 21.1.2009. It is pointed out that Ext.R-1(a)
proceedings themselves were drawn up to comply with the directions
of the State Government in Ext.R-1(b) order dated 1.3.2008 that
directed the University to adopt the age relaxation norms in the
University. The gist of the contentions of the respondents in the
counter affidavit is that, on the last date of receipt of applications
pursuant to the notification dated 29.1.2008, the respondent
University had not adopted the Government orders governing age
relaxation in respect of physically handicapped persons, and, hence,
inasmuch as the petitioner was admittedly beyond 40 years of age [40
years and 7 months] as on 1.1.2008, the cut-off date prescribed in the
notification, the petitioner did not satisfy the eligibility requirements
for appointment to the post in question. It is also contended that
although the respondent University had implemented the age
relaxation norms in the University with effect from 21.1.2009, the
norms could not be made applicable to the case of the petitioner
because the said adoption of the Government order had only
prospective effect in respect of notifications issued after the date of
adoption. The aforesaid contentions are reiterated in the counter
affidavit of the 4th respondent [the 3rd respondent in W.P.(C).
W.P.(C).NO.33953/2011
& 7
W.P.(C).NO.19769/2012
No.33953/2011] and hereinafter referred to as the '3rd respondent' in
this judgment]. Apart from the above, it is also the contention of the
3rd respondent that the post of Lecturer in Law was not a post that
was identified by the Government as one that could be reserved for
physically handicapped persons, including visually handicapped
persons. It is the case of the 3rd respondent that the post of Lecturer
in Law was notified as a post that could be reserved for physically
handicapped persons only by the Government order dated
17.10.2012, and, hence, the notification issued by the University
inviting applications from the physically handicapped persons for the
post of Lecturer in Law, was itself illegal. It is further pointed out
that the respondent University had in fact already filled up the post of
Lecturer in Law, reserved for physically handicapped persons, by the
appointment of a candidate on 2.5.2007. While the said candidate had
since resigned from the post, the fact remains that the post reserved
for physically handicapped persons was already utilized, and
therefore, there was no justification for a further reservation through
the notification that is the subject matter of the present writ petitions.
4. I have heard Smt.Prasanna Kumari E.S., the petitioner in
both the writ petitions, who appeared in person in W.P.(C).
W.P.(C).NO.33953/2011
& 8
W.P.(C).NO.19769/2012
No.19769/2012, Smt.Sangeetha Lakshmana, the learned counsel
appearing for the petitioner in W.P.(C).No.33953/2011,
Sri.V.Muhammed, the learned Standing counsel appearing for the
Kannur University as also Sri.V.Sajith Kumar, the learned counsel
appearing for the 3rd respondent.
5. On a consideration of the facts and circumstances of the case
as also the submissions made across the bar, I find that the main issue
to be decided in the instant case is whether the petitioner, who is
admittedly a physically handicapped person having 100% disability,
and possessed of the required academic qualification for the post of
Lecturer in Law that was notified on 29.1.2008, could be said to be
disqualified on account of the fact that she was aged 40 years and
seven months as on 1.1.2008, the cut-off date mentioned in the
notification. The issue assumes significance because in the
notification itself, there is an express provision which states that
"usual relaxation in upper age will be given to candidates belonging to
SC, ST, OBC and other categories as per University rules". It is the
case of the petitioner that inasmuch as it is the admitted case that the
University had adopted the Government orders granting age
relaxation to physically handicapped persons, with effect from
W.P.(C).NO.33953/2011
& 9
W.P.(C).NO.19769/2012
21.1.2009, she was entitled to the benefit of the said age relaxation
norms at least by 5.10.2010, when she attended the interview
pursuant to Ext.P4 memo dated 22.9.2010 that was issued to her
calling her for the same. Alternatively, it is her contention that even
de hors a formal adoption of the Government orders by the
respondent University, the University which answers to the
description of "State" within the meaning of the term under Article 12
of the Constitution of India, was obliged to follow the Governmental
norms with regard to age relaxation for physically handicapped
persons, while completing the selection process. It is her specific
contention that the respondent University erred in finding that there
was no person qualified for appointment under the physically
handicapped quota and thereafter appointing the 3rd respondent, who
was an open category candidate, to the said post.
6. Per contra, the learned counsel for the respondent
University, as well as for the 3rd respondent, would vehemently
contend that inasmuch as the petitioner was not qualified in terms of
the notification as on the last date of reciept of applications
contemplated under the notification, the petitioner could not claim a
right to be considered for the post that was notified by the respondent
W.P.(C).NO.33953/2011
& 10
W.P.(C).NO.19769/2012
University. Reliance is placed on the following decisions in support of
the said contention:
1. Sundaresa Kamath v. Kitty Lopez - [1991 (1) KLT 741]
2. Dr.Ami Lal Bhat v. State of Rajasthan and Others - [(1997) 6 SCC
614]
3. Vosto Paul v. The Kerala Public Service Commission - [Laws(Ker)-
2000-4-25]
4. Bhupinderpal Singh and Others v. State of Punjab and Others -
[(2000) 5 SCC 262]
5. Praveen.A. v. High Court of Kerala and Others - [2007 (4) KHC
307]
6. A.Manoharan and Others v. Union of India and Others - [(2008) 3
SCC 641]
7. Asha P. And Others v. State of Kerala and Others - [2009 (4) KHC
721 (DB)]
8. Bedanga Talukdar v. Saifudaullah Khan - [Laws(SC)-2011-9-14]
9. Tamilnadu Association For The Rights Off All Types Of Differently
Abled And Care Givers Taratdac, Rep. By its State Secretary
S.Namburajan v. Secretary To Government, Differently Abled Welfare
Department - [Laws(Mad)-2012-6119]
10. Anil Kumar Bansal v. State of Chhattisgarh - [Laws (Chh)-2013-
10-51]
7. On a consideration of the rival submissions, I am of the view
that the settled legal position, that the determination of eligibility of a
candidate in a selection process must be with reference to the cut-off
date specified in the notification itself, or as on the last date of receipt
of applications pursuant to the notification, does not call for any
W.P.(C).NO.33953/2011
& 11
W.P.(C).NO.19769/2012
debate. The issue in this case, however, is not as to whether the
petitioner was qualified, either in terms of educational qualifications
or in terms of age, as on the date prescribed in the notification or as
on the last date of reciept of applications stipulated in the notification.
The notification is categoric when it states that the age of 40 years
has to be determined as on 1.1.2008. Admittedly, the petitioner was
40 years and 7 months as on 1.1.2008. The notification, however,
specified that candidates would be entitled to the usual relaxation in
upper age that is given to candidates belonging to SC, ST, OBC and
other categories as per University rules. The issue to be considered,
therefore, is whether, as per the University rules that existed on the
date of the notification, an age relaxation in respect of physically
handicapped persons was contemplated or not. It is not in dispute in
the instant case that, by Ext.R-1(a) proceedings dated 21.1.2009, the
respondent University itself had adopted the Government orders
granting age relaxation to physically handicapped persons and
thereby expressly included the same in its Rules. Does it follow that
prior to the date of adoption of the Government orders on age
relaxation, the University Rules did not contemplate the grant of such
age relaxation to physically handicapped persons? To answer that
question, one has to consider the following aspects:
W.P.(C).NO.33953/2011
& 12
W.P.(C).NO.19769/2012
(a) The respondent University itself had identified a
post of Lecturer in Law as suitable for reservation
for physically handicapped persons.
(b) The notification dated 29.1.2008 was issued for
the purposes of identifying such a candidate.
(c) The notification also envisaged a relaxation of
upper age limit in respect of candidates belonging
to SC, ST, OBC and other categories as per the
University Rules.
(d) The selection procedure that commenced with the
issuance of the notification dated 29.1.2008 was
not completed till 5.10.2010, the date on which
the petitioner was interviewed by the Selection
Committee and was required to produce
certificates that showed her eligibility for the
post.
(e) On 20.1.2009, well before the date of interview of
the petitioner, the respondent University had
expressly adopted the Government orders
granting relaxation of upper age to physically
handicapped persons into its Rules.
(f) The Government orders, governing age relaxation
for physically handicapped persons, that were
issued after 1995 have necessarily to be viewed in
W.P.(C).NO.33953/2011
& 13
W.P.(C).NO.19769/2012
the backdrop of the Persons with Disabilities
(Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995, hereinafter referred
to as the 'Disabilities Act, 1995', and seen to be
issued by the State Government pursuant to its
obligations under the said Act. The said orders
therefore partook of the nature of "Law" as far as
the University was concerned, since it was a body
that received aid from the State Government and
hence obliged to further the objects of the
Disabilities Act, along with the State Government.
It followed, therefore, that the University was not
required to expressly adopt the relevant
Government orders before deeming it to be a part
of its Rules. The said Government orders had to
be read into the Rules as forming part thereof
even without an express act of adoption. In that
sense, the act of adoption through Ext.R-1(a)
proceedings could only be seen as one intended to
clarify the pre-existing legal position.
(g) The respondent University, that would fall within
the ambit of the term "State" as defined under
Article 12 of the Constitution of India, was even
otherwise obliged to adopt the age relaxation
norms stipulated by the State Government
pursuant to the latter's obligation under the
Disabilities Act, 1995. This would have been
necessitated so as to further the Legislative intent
expressed under the Disabilities Act, 1995.
W.P.(C).NO.33953/2011
& 14
W.P.(C).NO.19769/2012
An overall consideration of the aforesaid aspects leads me to conclude
that it was not open to the respondent University to have relied on a
technical plea, that the adoption of the Government orders governing
age relaxation was only with effect from a date subsequent to the date
of notification, so as to defeat the lawful rights of the petitioner to be
considered for the post in question.
8. There is yet another aspect of the matter. The Disabilities
Act, 1995 was enacted to give effect to the proclamation on the Full
Participation and Equality of the People in the Asian and Pacific
Region. In a meeting to launch the Asian and Pacific Decade of the
Disabled Persons, 1993-2002 convened by the Economic and Social
Commission for Asian and Pacific Region, which was held at Beijing
from 1.12.1992 to 5.12.1992, a proclamation was adopted on the Full
Participation and Equality of the People with Disabilities in the Asian
and Pacific Region. India is a signatory to the said Proclamation. The
Proclamation itself was on the following lines:
"To give full effect to the Proclamation it was felt
necessary to enact a legislation to provide for the
following matters:
(i) to spell out the responsibility of the State
towards the prevention of disabilities, protection of
rights, provision of medical care, education,
training, employment and rehabilitation of persons
W.P.(C).NO.33953/2011
& 15
W.P.(C).NO.19769/2012
with disabilities;
(ii) to create barrier-free environment for
persons with disabilities;
(iii) to remove any discrimination against
persons with disabilities in the sharing of
development benefits, vis-a-vis non-disabled
persons;
(iv) to counteract any situation of the abuse
and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive
development of programmes and services and
equalisation of opportunities for persons with
disabilities; and
(vi) to make special provision for the
integration of persons with disabilities into the
social mainstream."
The Disabilities Act, 1995, inter alia contains in Chapter VI thereof,
provisions relating to the employment of disabled persons through the
device of reservation of posts, establishment of Special Employment
Exchanges, the formulation of schemes for ensuring employment of
persons with disabilities and the reservation and setting apart of not
less than 3% seats in Government educational institutions and other
educational institutions receiving aid from Government etc. The
Disabilities Act also specifically stipulates that if in any recruitment
year, any vacancy cannot be filled up due to non-availability of
persons with disabilities, such vacancy shall be carried forward. If, in
the succeeding year, the vacancies in the respective categories cannot
yet again be filled up by an eligible candidate, the vacancy must first
enure to the benefit of any of the other specified categories; and only
W.P.(C).NO.33953/2011
& 16
W.P.(C).NO.19769/2012
in the event that there are no candidates available even in the other
categories, can the employer fill up the reserved vacancy through a
general appointment. It is apparent from a perusal of the Scheme of
the Disabilities Act, 1995, and in particular, Sections 38 and 39
thereof, that once the appropriate Government issues an order
granting age relaxation to physically handicapped candidates,
pursuant to its obligation to formulate schemes for ensuring
employment of persons with disabilities, then a failure to implement
such schemes by authorities or other bodies that draw aid from the
State Government for their functioning, can be remedied through the
issuance of a writ of mandamus [See Pradip Kumar Maity v.
Chinmoy Kumar Bhunia and Others - [(2013) 11 SCC 122]].
This, coupled with the fact that the Disabilities Act, 1995 itself is a
Social Welfare Legislation, the provisions of which much receive
liberal interpretation, would mandate that the respondent University
be compelled to follow the age relaxation norms stipulated by the
State Government while selecting candidates belonging to the
physically handicapped category. In the instant case, this legal
position assumes greater significance when one considers that the
very object of the notification in question was to identify a physically
handicapped candidate to the post.
W.P.(C).NO.33953/2011
& 17
W.P.(C).NO.19769/2012
9. I must now deal with the contention of the respondents, with
reference to case law, that the petitioner did not possess the requisite
age qualification as on the cut-off date specified in the notification.
No doubt, if the notification had only prescribed a cut-off date and did
not provide for any relaxation of the upper age limit, the plethora of
case law relied upon by the respondents would have come to their aid
to effectively contend that the petitioner could not lay a valid claim for
consideration of her candidature. The notification, in the instant case,
however, contained an express provision conferring an age relaxation
as per the University Rules. Thus, the present is a case where even
the author of the notification envisaged the grant of an age relaxation
wherever the Rules permitted. As already noted above, the
Government orders granting age relaxation formed an integral part of
the Rules of the respondent University in this case, and, hence, the
decisions relied upon by the respondents are clearly distinguishable
on facts. The other contention raised on behalf of the 3rd respondent,
namely that the post in question was not notified for filling up with
physically handicapped candidates till 2012, cannot also be sustained.
As a matter of fact, the post was notified for filling up even under the
Government orders issued prior to 2012. That apart, in the instant
W.P.(C).NO.33953/2011
& 18
W.P.(C).NO.19769/2012
case, the respondent University had unilaterally decided to reserve
the post in question for physically handicapped persons. The said
action of the respondent University in notifying the post in question
for filling up through a physically handicapped person was not
challenged by any one, including the 3rd respondent, at at any stage.
Under the said circumstances, I am of the view that the 3rd
respondent cannot be permitted to raise such a challenge collaterally
in these proceedings.
10. The upshot of the aforesaid discussion is that the
respondent University erred in not considering the candidature of the
petitioner for selection to the post of Lecturer in Law, against the post
reserved for physically handicapped candidates, at the time of
interview on 5.10.2010. I am of the view that the suitability of the
petitioner for the post in question has to be considered by the
respondent University, after treating the petitioner as one who is
eligible for appointment to the said post. As regards the appointment
of the 3rd respondent in W.P.(C).No.33953/2011 [4th respondent in
W.P.(C).No.19769/2012], my findings above would mandate that the
appointment of the 3rd respondent as Lecturer in Law in the
respondent University with effect from 21.12.2011, pursuant to a
W.P.(C).NO.33953/2011
& 19
W.P.(C).NO.19769/2012
decision taken by the respondent University, to make appointments
from the open category candidates, after finding that there was no
physically handicapped persons that could be appointed, is to be
annulled. I take note, however, of the submission of the learned
counsel for the 3rd respondent that an annulment of the appointment
of the 3rd respondent, at this stage, would seriously affect her
prospects of getting another job considering her age and other
factors. I also find that this unfortunate predicament of the 3rd
respondent has arisen solely on account of an erroneous stand
adopted by the respondent University that there was no qualified
candidate to be appointed under the Physically handicapped category.
Under the said circumstances, I direct the respondent University to
consider the case of the 3rd respondent for retaining her, if possible,
against any other vacancy in a sanctioned post or through the
creation of a supernumerary post, if the rules of the respondent
University so permit.
In conclusion, the writ petitions are allowed by holding as
follows:
(i) The action of the respondent University in not
considering the suitability of the petitioner for the
post of Lecturer in Law, under the quota earmarked
for physically handicapped candidates, is clearly
illegal.
W.P.(C).NO.33953/2011
& 20
W.P.(C).NO.19769/2012
(ii) The appointment of the 3rd respondent to the
post of Lecturer in Law, pursuant to the notification
that was intended for physically handicapped
candidates, and consequent to a finding that there
was no such candidate available, is declared illegal.
Accordingly, the order of the respondent University
appointing the 3rd respondent as Lecturer in Law
with effect from 21.12.2011, shall stand annulled.
(iii) The respondent University is directed to
consider the suitability of the petitioner for the post
notified, through the notification dated 29.1.2008,
by treating her as a candidate who has the
necessary age qualification for the post and is
otherwise eligible for the post. The respondent
University shall complete the aforesaid exercise
within a period of two months from the date of
receipt of copy of this judgment.
(iv) There will be no order as to costs.
A.K.JAYASANKARAN NAMBIAR
JUDGE
prp