KERALA AGRICULTURAL UNIVERSITY Vs. VAISAKH VENU

JUDGEMENT

(1.) The Kerala Agricultural University, its Vice Chancellor and its Registrar are the appellants before us, aggrieved by the judgment dated 12.02.2021 of the learned Single Judge in WP(C).No.26740 of 2020. The brief facts necessary for a disposal of the Writ Appeal are as follows:-

(2.) The writ petitioner applied for a post of Assistant Professor in Mathematics in the Agricultural Engineering Department of the University by responding to Ext.P1 Notification dated 03.03.2016 that was published by the University. The Notification indicated that there was one vacancy to the post of Assistant Professor (Mathematics) in the Faculty of Agricultural Engineering and that the said post was to be filled by open recruitment. The petitioner was ranked first in the rank list prepared by the University pursuant to the selection process but when it came to effecting an appointment to the said post, the University took the stand that the post in question was one that was identified as suitable for appointment of differently abled persons under the blind/visually-impaired category and reserved as such as per the mandate of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the 1995 Act"). The petitioner obtained this information pursuant to applications preferred under the Right to Information Act as is evident from Exts.P4, P4(a), P5 and P5(a) documents produced along with the Writ Petition. He therefore approached this court through the Writ Petition, in which reliance was placed on Exts.P8 and P9 Office Memoranda issued by the Central Government in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) to contend that the University was obliged to comply with the mandate of reservation for persons with benchmark disabilities as required under the 1995 Act, and accordingly, operate the 100 point roster with points 1, 34 and 67 earmarked for persons with disabilities. It was further contended that, although in terms of the Rights of Persons with Disabilities Act, 2016, (hereinafter referred to as "the 2016 Act"), the percentage of reservation for persons with disabilities was enhanced to 4% and the 100 point roster to be operated with points 1, 26, 51 and 76 earmarked for persons with disabilities, inasmuch as Ext.P1 Notification was itself issued only on 03.03.2016, ie.before the publication of the 2016 Act, the University had to operate the roster in accordance with the 1995 Act, by earmarking roster points 1, 34 and 67 for persons with disabilities. It was also pointed out that inasmuch as there was a previous recruitment undertaken by the University on 16.05. 2013, which fact is seen alluded to in Ext.P3 appointment chart, the University could not have refused appointment of the petitioner to the vacancy in the post of Assistant Professor (Mathematics) when there was admittedly no differently abled candidate of any category empanelled in the rank list, and available for appointment. The contention in other words was that going by Exts.P8 and P9 Office Memoranda, as also Ext.P6 Office Memoranda, that was issued in connection with the 1995 Act, the procedure to be followed by the University on finding that there was no differently abled candidate in any category to be appointed to the reserved vacancy at point No.1 in the second or subsequent recruitment years, was to appoint the petitioner, who was ranked first in the rank list prepared in connection with selection, to the aforesaid post.

(3.) In the counter affidavit filed on behalf of the University, the stand taken was essentially that the university was in the process of deciding on the applicability of the Central Educational Institutions (Reservation in Teachers Cadre) Act, 2019 to the establishment, and it was still undecided as to whether for the purposes of recruitment and application of the reservation contemplated under the 1995 and 2016 Acts, all Departments in the University had to be treated as a single unit or the different Departments treated as separate units as was the current practice. Explaining its conduct with regard to the non-filling up of the vacancy to the post of Assistant Professor (Mathematics), it was stated that the appointment chart for Assistant Professor (Mathematics) was prepared only for one vacancy by observing communal rotation as per the KS & SSR with the first vacancy being treated as an out of turn reservation for differently abled person under the category of blind/visually impaired, and since there was no such candidate available, the vacancy was decided to be carried forward and kept as NCA vacancy for Notification afresh. In particular, it was clarified that the reservation points for persons with disabilities was operated in the general rank list at points 1, 34 and 67.