Allowed

Sandeep R v. State of Kerala

Kerala HC2 Mar 2018WP(C)/5001/2018

Case brief

AI extract

What is this about?

The petitioner, a person with 42% benchmark mental disability, challenged the Government's inaction in implementing the Right of Persons with Disabilities Act, 2016, specifically Section 33 regarding post identification. The Court directed the Government to consider the petitioner's representation and identify suitable posts for reservation within three months. The writ petition was disposed of ac

What did the court decide?

Directed the Government to consider the petitioner's representation and identify suitable posts for reservation under the Act within three months.

Sandeep R Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939

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WP(C).No. 5001 of 2018

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PETITIONER:

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SANDEEP R, AGED 35 YEARS, S/O. RAMACHANDRAN NAIR, KANNAMKULAM, CHANNANIKKAD P.O, KOTTAYAM DISTRICT - 686 533.

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BY ADV.SRI.N.SASIDHARAN UNNITHAN

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE AND EMPOWERMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. KERALA PUBLIC SERVICE COMMISSION, REP. BY THE SECRETARY, PATTOM, THIRUVANANTHAPURAM - 695 004.

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R1 BY SENIOR GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R2 BY SRI.P.C.SASIDHARAN, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 5001 of 2018 (A)

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APPENDIX

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PETITIONERS' E --------------	XHIBITS: -------
EXHIBIT P1	TRUE COPY OF THE DISABILITY CERTIFICATE DATED 12/12/2017 ISSUED TO THE PETITIONER.
EXHIBIT P2	TRUE COPY OF THE GAZETTE OF INDIA NOTIFICATION DATED 19/4/2017.
EXHIBIT P3	TRUE COPY OF THE NOTIFICATION DATED 13/10/2017 ISSUED BY THE PSC, IN RESPECT OF CATEGORY NO.399/2017.
EXHIBIT P4	TRUE COPY OF THE NOTIFICATION DATED 13/10/2017 ISSUED BY THE PSC, IN RESPECT OF CATEGORY NO.400/2017.
EXHIBIT P5	TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER.
EXHIBIT P6	TRUE COPY OF THE DEGREE, CERTIFICATE OF THE PETITIONER ISSUED FROM MADURAI KAMARAJ UNIVERSITY.
EXHIBIT P7	TRUE COPY OF THE ONLINE APPLICATION DATED 7/11/2017 OF THE PETITIONER FOR CATEGORY NO.399/2017.
EXHIBIT P8	TRUE COPY OF THE ONLINE APPLICATION DATED 7/11/2017 OF THE PETITIONER FOR CATEGORY NO.400/2017.
EXHIBIT P9	TRUE COPY OF THE REPRESENTATION DATED 7/11/2017 OF THE PETITIONER IN RESPECT OF CATEGORY NO.399/2017.
EXHIBIT P10	TRUE COPY OF THE REPRESENTATION DATED 7/11/2017 OF THE PETITIONER IN RESPECT OF CATEGORY NO.400/2017.
EXHIBIT P11	TRUE COPY OF THE POSTAL RECEIPTS AND ACKNOWLEDGMENT.
EXHIBIT P12`	TRUE COPY OF THE OF LETTER NO IDS II(3)/8874/2017/GW DATED 4/12/2017 OF THE PSC.

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RESPONDENTS' EXHIBITS: NIL --------------------

/TRUE COPY/

P.S.TO JUDGE

mbr/ 07.03.2018.

P.V.ASHA J.

------------------------------------W.P.(C).No.5001 of 2018

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-------------------------------------

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Dated this the 02^nd day of March, 2018

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JUDGMENT

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The petitioner, who is mentally ill having

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42% benchmark disability as certified by the Medical Board in Ext.P1 complains that even after the introduction of Right of Persons with Disabilities Act, 2016 (for short 'new Act') w.e.f. 19.04.2017, the Government is not taking any steps as required under Section 33 of the new Act to identify the posts suitable for appointment of persons with intellectual/mental disability. Under Section 34 of

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the PWD Act the reservation to physically disabled hands are enhanced from 3% to not less than 4% vacancies out of which 1% is to persons with autism, intellectual disability, specific learning disability

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W.P.(C).No.5001 of 2018 2

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and mental illness and multiple disabilities.

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Section 33 of the Act mandates that, the appropriate Government shall identify posts in the establishments which can be held by the respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of Section 34.

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Sections 33 and 34 of the new Act are as

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follows:

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“ 33. Identification of posts for reservation .- The appropriate Government shall-

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(i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved in accordance with the provisions of section 34;

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(ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; and

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(iii) undertake periodic review of the identified posts at an interval not exceeding three years.

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34. Reservation .- (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent. of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities of which, one per cent. each shall be reserved for persons with

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W.P.(C).No.5001 of 2018

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benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely;-

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(a) blindness and low vision;

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(b) deaf and hard of hearing;

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(c) locomotor disability including cerebral palsy,

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leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

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(d) autism, intellectual disability, specific learning disability and mental illness;

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(e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf-blindness in the posts identified for each disabilities:

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Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

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Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section.

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(2) Where in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the

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W.P.(C).No.5001 of 2018

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vacancy by appointment of a person, other than a person with disability:

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Provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government.

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(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit.”

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As the new Act has been brought into force

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repealing the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 it is for the Government to take appropriate action in tune with the provisions under the new Act without delay.

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Petitioner who submitted application for

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appointment to the posts of Junior Assistant/ Cashier/ Assistant Grade II/ Clerk Grade I/ Time keeper Grade II /Senior Assistant /Assistant /Junior Clerk in various Corporations, claims that he is entitled to be considered for appointment under the reservation quota of 4% under the new Act to any vacancy which arises

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W.P.(C).No.5001 of 2018

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after the introduction and implementation of the new Act. Pointing out the inaction of Government to identify the posts, petitioner has submitted Ext.P10 representation before the Government.

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As the posts are yet to be identified, as

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provided in Section 33 of the Act, I deem it appropriate to direct the Government to consider Ext.P10 representation submitted by petitioner and to take appropriate action for identification of the posts in tune with the provisions in the PWD Act 2016 within 'three months' from the date of receipt of a copy of this judgment.

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This writ petition is disposed of

accordingly.

Sd/-

P.V.ASHA, JUDGE.

Sandeep R v. State of Kerala

Case brief

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Sandeep R v. State of Kerala

Case brief

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