E. DINESHAN Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The petitioner, a physically challenged person with 40% locomotor (ortho) disability, has approached this Court for quashing Ext. P5 to the extent it restricts the benefits of 3% reservation of handicapped persons mandated by Sections 32 and 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act' for short) with effect from the date of Ext. P5, i.e. from 1.2.2010 only and also for a declaration that the physically handicapped persons defined under the Act are entitled to get the back log vacancies from 1996 in the post of Assistant Grade II/Clerk/Junior Clerk/LD Clerk/Cashier filled up while making appointments to the public sector undertakings and Government Companies under the first respondent by reserving 3% to the physically challenged persons. There is a further prayer for a direction commanding respondents 4 to 7 to report all the existing vacancies in the aforesaid cadre so as to enable the third respondent to advise suitable candidates from Ext. P4 list. The petitioner alleges that despite clear mandate under Sections 32 and 33 of the Act, because of the arbitrary restriction imposed by the first respondent, a large number of vacancies of Assistant Grade II/Clerk/Junior Clerk/LD Clerk/Cashier in Government owned companies and public sector undertakings earmarked for physically challenged persons under 3% quota were filled up by appointing the candidates of general and other reserved categories and consequently, the petitioner is denied appointment even though he is included in Ext. P4 ranked list. He alleges that the second respondent published Ext. P3 ranked list for appointment to the aforesaid posts and thereafter Ext. P4 addendum notification was issued publishing supplementary list of physically challenged persons in these categories. The petitioner is ranked No. 70 in Ext. P4 list in the 'ortho' category.

(2.) The grievance of the petitioner is that the third respondent has restricted the advise against the vacancies which occurred only from 1.2.2010 on the ground that by Ext. P5 Government order, the aforesaid posts were identified for 3% quota of handicapped persons with effect from the date of the said order. The petitioner alleges that Ext. P5 to the extent it restricts the benefit of 3% reservation to physically challenged persons for appointment to the aforesaid posts in Government owned companies etc. from the date of the order is illegal. It was pointed out that the Apex Court in Ext. P6 judgment has declared the law that the reservation has come into effect from the date of commencement of the Act. Hence, any delay in the identification of the post cannot be made as a tool to deny appointment to the handicapped persons in the vacancies which arose earlier. He further points out that Exts. P7 and P8 series show that a total number of 3106 vacancies were filled up without appointing any handicapped person from the earlier list dated 17.11.2005 and Ext. P3 list. Therefore, he points out that 93 vacancies have to be filled up by appointing 31 handicapped persons in each category. Therefore, the petitioner prays that respondents 4 to 7 which are major public sector undertakings/Corporations/Boards have to be directed to report all the existing vacancies in the aforesaid posts to the third respondent forthwith.

(3.) In the counter affidavit filed by the respondents 2 and 3, they contended as follows: