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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 Actâ€). 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 Actâ€), 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.