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Court judgements: Kerala High Court

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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