DR. ANUSREE v. STATE OF KERALA

BY ADVS. V.M.KRISHNAKUMAR ROSHEN.D.ALEXANDER MAYA M.(K/897/2019) TINA ALEX THOMAS HARIMOHAN KOCHURANI JAMES SENIOR GOVERNMENT PLEADER SHRI A.J.VARGHESE THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.03.2025, ALONG WITH RP.513/2024, THE COURT ON 03.04.2025 DELIVERED THE FOLLOWING: [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:4:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 RP NO. 513 OF 2024 AGAINST THE JUDGMENT DATED 17/11/2023 IN OP(KAT) NO.107 OF 2023 OF HIGH COURT OF KERALA REVIEW PETITIONER/S: DR. ANUSREE.M. AGED 34 YEARS D/O RAJAN M.K., MADATHIL HOUSE, EDACHERY P.O, VADAKARA, KOZHIKODE KERALA, PIN - 673502 BY ADVS. K.M.GEORGE CHITHRA P.GEORGE MATHEWS P.GEORGE RESPONDENT/S: 1 2 SUDHEENA.S AGED 32 YEARS W/O ARJUN SANTOSH, RESIDING AT BISMILLAH MANZIL, PLACHERY.P.O, PUNALUR, KOLLAM, KERALA, PIN - 691331 SUJINA.P.V AGED 31 YEARS W/O DR.FAZIL HAMZA, RESIDING AT DHANYA HOUSE, VELLACHAL, KODAKKAT.P.O, KASARGOD DISTRICT KERALA, PIN - 671310 [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:5:- 3 4 5 6 DEEPNA.M AGED 34 YEARS W/O DR.DILEEPA.K, RESIDING AT PRANAVAM, ADUTHILA, PAYANGADI.P.O, KANNUR, KERALA., PIN - 670303 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 THE SECRETARY AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 THE DIRECTOR INDIAN SYSTEM OF MEDICINE, AROGYA BHAVAN, THIRUVANANTHAPURAM, PIN - 695001 SENIOR GOVERNMENT PLEADER SHRI A.J.VARGHESE THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12.03.2025, ALONG WITH RP.446/2024, THE COURT ON 03.04.2025 DELIVERED THE FOLLOWING: [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:6:- O R D E R Dated this the 3rd day of April 2025 A.Muhamed Mustaque, J. The backlog vacancies for persons suffering from locomotor disability for appointment to the post of Medical Officer (Ayurveda) are to be considered by this Court. The issue in regard to filling up of the vacancies for differently abled candidates (hereinafter referred to as ‘DA candidates’) from 07/02/1996 to 18/04/2017 was considered by the Tribunal, and ordered to report the vacancies during the above period. This Court, based on an additional statement filed by the Director of Indian System of Medicine in O.P.(KAT). No. 444/2022, noted that reservations were made for DA candidates in the 2009 ranked list, 2013 ranked list and the 2014 ranked list; and set aside the order of the Tribunal to set apart reservations for DA candidates from 1996 onwards. [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:7:-

#2. There was a dearth of data in regard to the vacancies from 1996 onwards for DA candidates. The Tribunal decided the matter as though no such reservations based on vacancies were made up to 18/04/2017. This Court decided the matter from a different angle based on the law on carry forward, on the ground that the reservations were made in the previous notifications, which resulted in the ranked lists of the years 2009, 2013 and 2014. If the reservations were reckoned from 1996 onwards in the previous notifications, the judgment of this Court requires no reconsideration, warranting review.

#3. Essentially, the question in this matter revolves around the factual calculation of vacancies from 1996 onwards and making available such vacancies in the previous notifications.

#4. However, we note that the applicant in O.A.No.1439/2021 before the Tribunal did not produce the notification dated 14/12/2017. In the notification, it is specifically stated that 3% of the vacancies are reserved for DA candidates. There was no fixation of any vacancies in the notification. It is stated that the notification [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:8:- was issued as against vacancies anticipated. Thus, it is clear that there was no calculation of 3% vacancies from 1996 onwards to accommodate the claim of DA candidates. In such a situation, the remedy is to challenge the notification claiming reservations from 1996 onwards. In the absence of any such challenge, the Court cannot entertain such a plea for reservation after the ranked list is published. If vacancies as such are reckoned from 1996 onwards for DA candidates, depending upon the number of vacancies notified, accommodating general candidates would be minimal or nil. A notification establishes a level playing field for all, including those seeking adequate representation through reservations. If the notification does not provide for the required reservations, the proper remedy is to challenge it. The rules set in the notification apply equally to everyone and cannot be altered after the process has begun, as doing so would disrupt the rights of others. Furthermore, the PSC cannot exceed the rules of the notification to modify allocations beyond the predefined norms. [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:9:-

#5. The applicant before the Tribunal challenged a general order of the Government dated 06/05/2017 issued by the Social Justice Department fixing 3% reservation for DA candidates based on cadre strength. According to the applicant/petitioner herein, the 3% reservation should be against the vacancies occurring in a post, in the light of the judgment of the Apex Court in Union of India and Others v. National Federation of the Blind and Others [2013 KHC 4816]. The second prayer of the applicant in O.A No. 1439/2021 was to compute the backlog vacancies in the post of Medical Officer (Ayurveda) from 1996 to 2017. This prayer requires meritorious consideration if the backlog vacancies had not been adverted in the earlier notifications. The above contention raised by the petitioner has merit based on the National Federation of the Blind (supra). Therefore, the official respondents are bound to compute the backlog vacancies from 1996 onwards and also have to find out whether the computed vacancies from 1996 onwards have been made available in the previous notifications before making fresh [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:10:- requests in the future to the PSC for appointment in the post of Medical Officer (Ayurveda).

#6. In the absence of a challenge to the notification dated 14/12/2017, the relief sought by the applicant/petitioner herein could not have been entertained by the Tribunal. It is seen that the ranked list was already published on 08/07/2020, and it was challenged before the Tribunal on 29/07/2021. Therefore, the plea for reservation from 1996 onwards cannot be entertained at a belated stage when a ranked list was already published and appointments were made thereon. The general direction in the National Federation of the Blind (supra) only points out the right of DA candidates for reservation from 1996 onwards; thus, conferring the right of the DA candidates to demand for reservation from 1996 onwards. Such a demand cannot be raised after the publication of the ranked list, without questioning the notification itself. Therefore, by reserving liberty to the DA candidates to raise such a demand for reservation from 1996 onwards, the review petitions stand disposed of. We make it clear that we have left open the question as to the [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:11:- demand for reservation from 1996 onwards. Our observation and findings based on the carry forward rule are accordingly modified, leaving open the question as above. Sd/- A.MUHAMED MUSTAQUE, JUDGE Sd/- SHOBA ANNAMMA EAPEN, JUDGE [RP Nos.446/2024 IN OP(KAT)444/2022 & RP No.513/2024] IN OP(KAT)107/2023 -:12:- RESPONDENT ANNEXURES APPENDIX OF RP 446/2024 Annexure R15(a) TRUE COPY OF THE JUDGMENT DTD. 31.10.2023 IN OP(KAT) NO. 396/2023 AND CONNECTED MATTERS. Annexure R15(b) TRUE COPY OF THE ADVICE MEMO ISSUED BY THE 3RD RESPONDENT TO THE APPLICANT HEREIN BEARING NO. RIF(2)11200/18/GW DTD. 07.07.2023. RESPONDENT ANNEXURES Annexure R6(b) TRUE COPY OF THE RANKED LIST PUBLISHED BY KERALA STATE PUBLIC SERVICE COMMISSION ON 04.01.2025 Exhibit R6(a) TRUE COPY OF THE REPORTING VACANCIES PERFORM HAVING ID.NO.35520 ISSUED BY THE DIRECTOR OF INDIAN MEDICAL SYSTEM