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Judgment
A.K.Jayasankaran Nambiar, J.
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:-
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.
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.
What appears to us from the averments in the counter affidavit filed on behalf of the University is that they had treated the recruitment pursuant to Ext.P1 Notification as the first recruitment wherein the principles of reservation as mandated under the 1995 Act had to be applied. The vacancies that arose in the post during the period from 1996 to 2016 were therefore not reckoned for the purposes of applying the reservation principle as mandated under the 1995 Act.
The learned Single Judge, who considered the matter found force in the contention of the learned counsel for the petitioner that the instant was a case that fell squarely within the ambit of Clause 8 of Ext.P9 Notification, and hence, by treating the recruitment pursuant to Ext.P1 Notification as the second year of recruitment for the purposes of the 1995 Act, the University was obliged to appoint the petitioner to the vacancy in question, in the absence of any person with disability who could be appointed thereto. The Writ Petition was accordingly allowed and the University was directed to appoint the petitioner to the post of Assistant Professor (Mathematics).
Before us, it is the submission of the learned Senior counsel Sri.S.Sreekumar, appearing for the appellants, that the recruitment carried on pursuant to Ext.P1 Notification had to be treated as the first year of recruitment for the purposes of implementing the reservation contemplated under the 1995
Act. That this was more so because, it was only pursuant to Annexure R3(d) Government Order dated 20.02.2016 and Ext.P10 Government Order dated 06.05.2017 that the University had proceeded to identify those posts that were suitable for being filled up through appointment of candidates with disabilities. It is contended, therefore, that in the absence of any candidate under the category of differently abled (blind/visually impaired) being available for appointment, the vacancy had to be carried forward to the next year of recruitment as mandated under the 1995 Act, read with the relevant Office Memoranda.
We are afraid, we cannot accept the contentions of the learned senior counsel. The mandate of the 1995 Act as directed to the appropriate government is to identify posts in various establishments under it that can be held by persons with benchmark disabilities, and thereafter, to reserve 3% of the vacancies in those posts for appointment of such persons. The statute also envisages the maintenance of a 100 point roster for filling up vacancies in the identified posts and the earmarking of specific points in the roster to provide the reservation for disabled candidates. As has been held by the Supreme Court in Indra Sawhney and Others v. Union of India and Others (1992 Supp (3) Supreme Court Cases 217), Anil Kumar Gupta and Others v. State of U.P and Others [(1995) 5 Supreme Court Cases 173] and Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others [(2007) 8 Supreme Court Cases 785], there is a distinction between communal reservation which falls under the category of vertical reservation and reservation for disabled candidates that falls under the category of horizontal reservation. While the former is a form of social reservation intended exclusively for the backward class of people, it differs from the latter in that if a person entitled to reservation secures a position based on merit, his/her appointment is not counted towards fulfilment of the class reservation. In the case of disabled candidates, the reservation is horizontal and, accordingly, if the candidates secures a position on merit and without using the benefit of such reservation, he/she is nevertheless counted against the position reserved for disabled persons. In other words, as pointed out by the Supreme Court in Rajesh Kumar Daria v. Rajasthan Public Service Commission and Others [2007 (8) SCC 785] a disabled candidate satisfies the requirement of reservation irrespective of whether he is appointed in his turn to a roster point, which is reserved for such candidate unlike in the case of vertical reservation were the reserved candidate satisfies the requirement of reservation only when he is appointed in the turn and against the roster point, which makes the reservation. It is also relevant to note that the reservation contemplated under the 1995 Act is of a specified percentage (3%) of the vacancies in the identified posts and not to the cadre strength of the identified post.
A Division Bench of this Court, by judgment dated 06.01.1996 in W.A.No.362 of 2015 has found that that the 1995 Act, having come into force with effect from 01.01.1996, the principles of reservation therein, which are not dependant on the identification of posts, would come into operation with effect from 01.01.1996 itself. This would mean that the vacancies earmarked for the disabled persons are to be reckoned not with effect from the date of identification of posts suitable for such candidates, but with effect from the date of commencement of operation of the Act. On the facts of the instant case, we find that to the posts of Assistant Professor (Mathematics) in the Agricultural Engineering Department of the University there has been at least one prior recruitment, in 2013, which fact is apparent from Ext.P3 appointment chart prepared by the University itself. If that be so, then for the purposes of applying the principles of reservation under the 1995 Act, we have to necessarily treat the present vacancy in the post of Assistant Professor (Mathematics) as one that exists in a subsequent recruitment year and not in the first recruitment year. Going by the principles laid down in Section 36 of the 1995 Act, in all recruitment years subsequent to the initial recruitment year, an unfilled vacancy earmarked for filling up with a category of differently abled persons has either to be filled by a differently abled person of the same or different category or, in their absence, by a person other than a person with disability. This would be the position as regards reservation for persons with disabilities in any subsequent year after the first recruitment year. As the facts in the instant case clearly reveal that the recruitment pursuant to Ext.P1 Notification was not the first recruitment to the post of Assistant Professor (Mathematics) in the Agricultural Engineering Department, we are of the view that the University was not justified in refusing to fill up the post by appointing the petitioner who was ranked first in the rank list prepared pursuant to Ext.P1 Notification. We also find that no prejudice would be caused to any disabled candidate through the offering of the present appointment to the writ petitioner because they would be able to secure an appointment in any subsequent recruitment so long as they feature in a rank list prepared in connection therewith.
Thus, for the reasons given by the learned Single Judge, as supplemented by the reasons in this judgment, we dismiss the Writ Appeal.