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2018 DIGILAW 1037 (KER)

Ravindran v. State of Kerala

2018-12-12

P.V.ASHA

body2018
JUDGMENT : 1. The petitioner is having 75% locomotor disability. On being sponsored by the Employment Exchange for appointment in the Life Insurance Corporation of India he missed an opportunity to get reappointment on the basis of Ext.P9 order issued by the Government. 2. The petitioner registered his name in the Employment Exchange, Palakkad on 26.03.1998. He has passed B.Com degree. His date of birth is 05.07.1970. He is physically challenged with 75% locomotor disability. On the basis of his seniority of registration, the Employment Officer, Palakkad sponsored him for employment in LIC. Thereafter he was appointed in the LIC for a period of 85 days from 28.02.2000 to 22.05.2000, as per Ext.P2 order of LIC, and he was posted at the payment Branch Office at Palakkad as temporary Assistant on a scale of pay of Rs.1950-3970. Petitioner submits that the temporary appointments in LIC are given only for a period of 85 days and therefore he was discharged from LIC on completion of 85 days. While so, Government initiated proceedings to collect the details of Physically Handicapped candidates who have worked for 179 days during the period from 16.08.1999 to 03.12.2000. Such details were calculated from among persons who were appointed under Rule 9(a)(i) of K.S.& S.S.R. for a period of 179 days, between 16.08.1999 and 03.12.2000, on being sponsored by Employment Exchange, in order to forward the same to Social Justice Department. Government thereafter issued Ext.P9 order on 18.05.2013 by which 2677 Physically Handicapped persons who worked for 179 days between 16.08.1998 and 31.12.2003 under Rule 9(a)(i), on being sponsored by Employment Exchange. It was ordered that they would be reappointed against supernumerary posts. Petitioner thereupon submitted several representations before the Employment Officer as well as Government requesting to take steps to re-appoint him. 3. The Employment Officer had as per Ext.P4 letter dated 09.07.2017 informed the petitioner that his case was not liable to be considered since his appointment was not under Rule 9(a)(i) of K.S.& S.S.R. Petitioner approached the Chief Minister with Ext.P5 representation pointing out that he did not get the benefit of Ext.P9 order though he had worked in the year 2000 during the period from 28.02.2000 to 22.05.2000 as an Assistant in LIC. It is pointed out that though he was included in various rank lists and has appeared in various tests conducted by Public Service Commission he was not offered any regular appointment and the only appointment he got through Employment Exchange was one in the LIC. Therefore he requested to take steps to consider his case also and to give him appointment in any of the office in Palakkad District. 4. The District Employment Officer had rejected the request of petitioner as per Ext.P6 dated 29.10.2012 stating that the re-appointment was admissible only to those who worked under Rule 9(a)(i) of K.S.&S.S.R. He was informed that as and when vacancies are reported his case also would be considered for other appointments in accordance with the age reservation, qualification, etc. Petitioner received Ext.P7 letter from Government informing him that service rendered by him in LIC cannot be reckoned for the purpose of re-appointment or regularisation by Government. He was informed that 3% reservation is available in appointments through Public Service Commission for the Physically Handicapped from 2008 onwards and they are also granted age relaxation by 10 years. Petitioner was informed that it would be open to him to submit application as and when the same is called for. The Director of Social Justice had by another letter Ext.P11 dated 08.05.2014 again informed the petitioner that there is no provision for re-appointment of Physically Handicapped in LIC which is under the control of the Central Government. In institutions like LIC and other Central Government institutions re-appointment cannot be given by the Government as the service rendered by the petitioner does not come within the purview of Rule 9(a)(i) of K.S.& S.S.R. 5. The petitioner points out that he did not have any other option when the Employment Exchange sponsored him for appointment in LIC. It is pointed out that persons who registered their names with Employment Exchange as in his case got their names sponsored for appointment in various establishments under the Government Departments, based on which they could enjoy the benefit of Ext.P9 order, whereas the petitioner on account of no fault on his part happened to be appointed in LIC and he did not even get an opportunity to work even for 179 days, as appointment in LIC on temporary basis is for 85 days. 6. The 4th respondent has filed counter affidavit. 6. The 4th respondent has filed counter affidavit. It is stated that there cannot be any reappointment on the basis of orders issued by the Government of Kerala. It is also stated that the Government cannot direct reappointment in the light of Ext.P9 order in an establishment like LIC. It is also stated that the Gazette Notification issued by the Government of Kerala is applicable to persons who have worked during the period 16.08.1999 to 31.12.2003 through Employment Exchange as temporary employees under K.S. & S.S.R. Part II R.9(a)(i) for 179 days and this rule is not applicable to LIC of India. 7. Along with I.A.No.6 of 2018 the petitioner has produced Ext.P12 order issued on 10.03.2017 in which it is stated that 157 persons have been given reappointment again. It is stated therein that those who had been appointed through the Employment Exchange and worked during the period between 16.08.1999 to 31.12.2003 and could not complete 179 days because of regular appointment through PSC, Maternity Leave, end of academic year etc., had been recommended for reappointment before the Director of Social Justice. The petitioner points out that even those who worked for a period of 49 days are seen given reappointment as per Ext.P12 order. The case of the petitioner is that he is discriminated on the ground that he was sponsored to LIC and also on the ground that he did not complete 179 days where as the sponsoring or the tenure of appointment was not in his control. 8. Having considered the contentions on either side, it is seen that, as pointed out by the petitioner, that a person like petitioner who remains unemployed for several years, would not have any other option than to accept the employment for which the Employment Officer sponsored his name. If he had not accepted the employment in LIC he would have lost his further opportunities to be employed through the Employment Exchange. Out of necessity he accepted the appointment and worked in LIC that too at a time when orders of reappointment were not even contemplated by the Government. It is true that the petitioner who got his name registered with the Employment Exchange and has not worked for 179 days or under Rule 9(a)(i) of K.S. & S.S.R. and was not in an establishment under the State Government. It is true that the petitioner who got his name registered with the Employment Exchange and has not worked for 179 days or under Rule 9(a)(i) of K.S. & S.S.R. and was not in an establishment under the State Government. The fact remains that the petitioner was sponsored to an establishment which comes under the definition of establishment contained in the Rights of Persons with Disability Act, 2016 and such sponsoring is on the basis of his registration in the Employment Exchange as in the case of any other candidates with disability who got appointment. 9. It is seen that the Government chose to issue orders extending the benefit of Ext.P9 order even to those who worked for less than two months, on various reasons stated therein. The case of the petitioner also is to the effect that he could have worked during the relevant period in a Department under the Government or an establishment under the Government in case appointment was to an establishment other than LIC. 10. I find that the case of the petitioner who is having 70% disability requires special consideration by the Government with due compassion taking into account the fact that getting sponsored by the Employment Exchange for an appointment to LIC was not on account of any of his fault or even his option. 11. As a reappointment is not possible in LIC based on orders issued by Government of Kerala, the Government shall consider the matter seriously and also into the possibilities for accommodating such persons in any establishment under the Government so that there will not be any discrimination among the persons who worked during the relevant period that is between 16.08.1999 to 31.12.2000. It is also relevant to note that there shall not be any discrimination among physically disabled candidates also. Therefore the Government is duty bound to protect the disabled persons from being discriminated, as provided in S.3 of the Rights of Persons with Disabilities Act, 2016. S.3 read as follows: 3. Equality and non-discrimination-- (1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment. S.3 read as follows: 3. Equality and non-discrimination-- (1) The appropriate Government shall ensure that the persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment. (3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. (4) No person shall be deprived of his or her personal liberty only on the ground of disability. (5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities. 12. Section 20(1) also provides that no Government establishment shall discriminate against any person with disability in any matter relating to employment. In this case, discrimination arises on account of the fact that the petitioner’s appointment through the Employment Exchange happened to be in an establishment under the Central Government whereas persons with less registration seniority as well as persons with lesser disability got appointment and worked during the relevant period on being sponsored by the Employment Exchange are able to enjoy the benefit of Ext.P9 order and reappointed in the respective establishments. Therefore there shall be a direction to respondents 1, 3 and 5 to bestow serious consideration on the claim of the petitioner to have the benefit of Exts.P9 and P12 order in the light of the aforesaid observations within a period of three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above.