(2015) 410 KLW 656 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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

PETITIONER

PRASANNA KUMARI. E. S. 

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 

3. KAVITHA BALAKRISHNAN

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)

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 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: 

The candidates were required to submit an application form to reach 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 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). No.19769/2012. In the said writ petition, the petitioner claims the following reliefs: 

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 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). 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). 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 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 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 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: 

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: 

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 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. 

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 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 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. 

(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 

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