Court judgements: Kerala High Court
Hailin Jacob v. State of Kerala
2004 (3) KLT 934
W. P. Nos. 24161 and 23656 of 2004
Decided On: 18.08.2004
Kerala High Court
Judges: K. Balakrishnan Nair, J.
Facts: The petitioner is a physically challenged person suffering from 52% physical disability. She took the Entrance Examination for the Professional Degree Courses for the year 2004. Her rank in the Entrance Examination was 21352. She claimed reservation as a physically challenged person, in the light of the relevant clauses contained in the prospectus. The petitioner’s rank comes out to be seventeen among the physically handicapped persons. According to the petitioner, there should be 21 seats that should be reserved for physically handicapped as per section 39 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. However, according to the respondents, only sixteen seats are available to the physically handicapped persons for the M.B.B.S. Course and the petitioner, being the seventeenth candidate, is eligible to get admission only to the B.D.S. Course. So, this Writ Petition was filed seeking a direction to the respondents to allot a seat for the M.B.B.S. Course in one of the Medical Colleges, to the petitioner, under the quota set apart for physically handicapped candidates.
Held: The reservation for the physically handicapped should not be calculated after deducting seats reserved for other categories. The reservation has to be made considering the total seats available in a particular course.
Based on the above reasoning the court held that the total seats reserved for the physically challenged would be twenty one and not sixteen. Since, the petitioner’s was seventeen, the court directed that she should be offered a seat in the M.B.B.S. course.
Ratheesh Babu v. U.G.C.
2004 (3) KLT 158
W.A. No. 1347 of 2004
Decided On: 13.08.2004
Kerala High Court
Judges: K. S. Radhakrishnan and J. M. James, JJ.
Facts: Sree Sankaracharya University of Sanskrit, the second respondent, invited applications from eligible candidates for various posts vide Ext.P1 notification, including the post of Lecturer in Social Work. Appellant is a physically handicapped person suffering from post polio residual paralysis of both the lower limbs with secondary scoliosis with 80% disability. The Complaint of the appellant is that Ext.P1 notification does not contain any reservation for physically handicapped or disabled persons which the respondents are legally bound to do under Section 33 of the Persons with Disabilities (Equal Opportunities Protection of Rights with Full Participation) Act, 1995. Stand of the University Grants Commission was that State Government has to issue orders identifying posts to be reserved for physically handicapped person and no such identification has been made by the State Government.
The main issue before the court, therefore, was whether action of State Government in not making any reservation for physical handicapped persons for selection to posts in Class-I and Class-II categories in Government service including universities in State is justified under Section 33.
Held: The court directed the government to identify and classify posts in Class-I and Class-II categories for persons with disabilities. The petitioner would then be able to claim for reservation only if the post in question is identified.
F.A.C.T. v. Gopinatha Panicker
2004 (2) KLT 455
W. A. No. 2095 of 2003
Decided On: 26.03.2004
Kerala High Court
Judges: N. K. Sodhi, Ag. C. J. and K. K. Denesan, J.
Facts: The respondent was an employee of the Fertilizers and Chemicals Travancore Limited which is a Government Company within the meaning of Section 617 of the Companies Act, 1956. On 26.12.2001 when he was proceeding from his home to the Company on his motorbike he met with an accident and sustained severe injuries on his head. While he was under treatment with the hope that he would be able to join duty, the Company directed him to appear before its medical board. He appeared before the board and thereafter he was informed that the board found him medically unfit to perform the assigned duties and, therefore, he was being discharged from the service of the Company. It was argued on behalf of the respondents that in terms of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called 'the Act') their services could not be terminated. It was argued by the Company that the respondents were governed by Clause 2(m) of the standing orders applicable to the Udyogamandal division of the Company which provides that "any workman who during the course of his employment is found to be medically unfit for work in the factory by the Company medical officer, shall be liable to be discharged." Thus, in view of this standing order the respondents could be discharged from service. The question that now arose was whether Section 47 of the Act debars the Company from dispensing with the services of the respondents and whether it will override the provisions of the certified standing orders.
Held: The court held that the Act of 1995 would override the standing orders of the company. It pointed out:
“The certified standing orders no doubt govern the company and its employees but these are general provisions pertaining to all industrial employees including persons acquiring a disability during service. The Act, on the other hand, is a special piece of legislation enacted primarily for the benefit of disabled persons and persons who acquired disabilities during their service. It being a special enactment would apply and override the standing orders.”
Based on the above reasoning the court held that the company was not justified in dispensing with the services of the respondents merely because they had acquired a disability during their services. They could have been shifted to some other posts with the same pay scale and service benefits. If this is not possible then the company should keep them on a supernumerary post until a suitable post was available for them or they attain the age of superannuation.
Shaji Kumar v. Bharath Petroleum Corporation
2004 (1) KLT 961
W. A. No. 1589 of 2003
Decided On: 20.10.2003
Kerala High Court
Judges: Cyriac Joseph and K. K. Denesan, JJ.
Facts: The first respondent Bharat Petroleum Corporation Limited invited applications for Petrol-Diesel Retail Outlet Dealerships at Kottiyam in Kollam District and Kadambanadu in Pathanamthitta District. The outlet at Kottiyam was reserved for physically handicapped persons. Being a congenitally physically handicapped person with a permanent disability of more than 45%, the petitioner submitted an application for the Petrol-Diesel Retail Outlet Dealership at Kottiyam. He was called for the interview conducted by the third respondent Dealer Selection Board. According to the petitioner, after the selection, a rank list was published including the 4th respondent Mohammed Shanni as No. 1 and the petitioner as No. 2. The 4th respondent had no congenital disability. He became physically handicapped due to a motor accident in 1994. Hence, the petitioner submitted Ext.P2 representation dated 13.12.2001 before respondents 2 and 3 pointing out that congenitally handicapped persons ought to be given preference over accidentally handicapped.
Held: Nothing in the Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides for such discrimination. The Act merely grants benefit to disables without making any classification amongst disables.
Employment
1. Ray John Varghese V. State Of Kerala
(2001) 3 Kerala Law Times 782
Writ Appeal No.304/2001
Decided on: 01.10.2001
Kerala High Court
Judge: K.S.Radhakrishnan, J
Fact: Ray John Varghese , a physically handicapped person with more than 40 per cent disability, applied for the post of Assistant Motor Vehicle Inspector to the
Kerala Public Service Commission. There was in all 60 vacancies but he ranked only 639 out of 704. Realising there was no chance of getting appointed through the merit list, he made a representation to the state Government stating that he was a handicapped person with 40% disability and consequently is entitled to get preferential appointment. His representation was rejected on the ground that there were no existing rules or directions at the Government level to appoint physically handicapped persons who have registered their names with the Employment Exchange or who have been included in the selected list of Public Service Commission. Hence he filed the present petition in the Kerala High Court under provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 on the basis that it was mandatory on the part of the government to identify posts for appointing persons with disability. According to this Act, Government shall reserve in every establishment not less than 3 per cent of posts for persons suffering from disabilities.
Held: The Act provides that appropriate Governments shall identify posts in establishments, which can be reserved for persons with disability and review of these identified posts not exceeding three years considering the development in technology (sec 32). However since the state government has not so far identified the post of Assistant Motor Vehicle Inspector in accordance with section 32 of the Act, , the appellant cannot be given appointment even though he is suffering from more than 40 per cent of disability.
Education
2. State Of Kerala V. Mary Joseph
(2001) 3 Kerala Law Times 26
Writ Appeal No.3417/2000
Decided on: 27.07.2001
Kerala High Court
Judge: K.S.Radhakrishnan, J
Facts: An appeal was filed by the State of Kerala, Commissioner for Entrance Examinations and Director of Technical Education against the judgement directing them to declare 3 per cent of total available seats in Government Professional colleges for the year 2000-2001 to be reserved for persons with disabilities. The prospectus of Engineering, Medical and other allied courses restricted the admission of persons with more than 40 per cent disability on the ground that persons with more than 40 per cent disability would not be able to cope with the rigour of the professional courses.
Held: It is not logical that legislature had intended reservation to person who has disability ranging from 40 per cent to 100 per cent admitted to professional courses without any guidelines. According to the Act, all government educational institutions and other educational institutions receiving aid from Government shall reserve not less than three per cent of seats for persons with disabilities (sec 39). This section comes under the heading ‘Employment’ and the word ‘seats’ would mean only ‘vacancies or post’. So the Act is not intended to reserve seats in medical, engineering and allied professional courses. So the directions given by this court to the state government as well as Commissioner to reserve 3 per cent of seats for all those persons who are suffering from not less than 40 per cent disability, in the degree courses in engineering, medical and allied courses is kept back.
3. Dr. P.D.Benny V. State Of Kerala & Ors.
http://www.adalat.nic.in
Writ Appeal No. 3660/2001(A)
Decided on 30.01.2003
Kerala High Court
Judge: Jawaharlal Gupta, CJ
Fact: The appellant is physically handicapped afflicted with Polio. It had left him with a handicap of 60% in the legs. Despite the handicap, the appellant had graduated in Medicine from the Calicut University and completed the requisite internship. In April 2001, the State Government published a prospectus for admission to the Post Graduate Degree/Diploma Courses in Medical Sciences. While issuing this prospectus, reservations were made for various categories like Schedule Castes, Schedule Tribes, Ex-servicemen and Service candidates. However, no reservation was made for the physically handicapped persons. He filed a petition under Article 226 of the Constitution complaining that the State government had failed to carry out its statutory obligation under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Thus, he prayed that a writ of mandamus be issued directing the respondents to modify the prospectus and to make a provision of “3% reservation for physically handicapped in the Medical P.G.Degree/Diploma Courses 2001. He further prayed that the respondents be directed to consider his application in the quota for physically handicapped.
Held: The provision for reservation under Section 39 has been made with the object of helping the less fortunate members of the society. However, keeping in view the fact that each specialty under postgraduate course constitutes a separate unit and there is no provision for amalgamating all the disciplines together, the authority could have taken the view that no reservation should be made. Appellants' contention that a seat can be given in the field of General Medicine, the total number of seats for this subject in all the 5 colleges is 26. Even if proceed on the assumption that the seats can be put together, reservation of one seat out of 26 would be in excess of the percentage prescribed under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Section 39). Since such reservation would not be in strict conformity with the provisions of the statute no mandamus forcing the government to do so can be issued. Each medical student at the postgraduate level costs a substantial amount of money. Admission is given to the meritorious so that public funds are spent on the deserving persons. Persons with handicaps even if imparted the training may not be in a position to fully carry out all the onerous duties expected of medical officers with postgraduate qualifications. Looking from different angles to this issue, it can be concluded that state has not acted unfairly and the present petition is disposed off.
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