'Vertical Reservation' By Calicut University For Persons With Disabilities Faulty And Illegal: Kerala High Court

The Kerala High Court on Friday held that the reservation procedure followed by the Calicut University by earmarking roster points for persons with disabilities, and providing them with vertical reservation instead of horizontal, as being faulty and illegal, and also violative of  Rule 15 of Part II Kerala State and Subordinate Service Rules (KS & SSR). Such reservation had resulted into reduction of the number of posts for Ezhavas, Thiyyas and Billavas (ETB) communities

The Division Bench of Justice P.B. Suresh Kumar and Justice Sophy Thomas also found the procedure to be violative of the principles laid down in Indra Sawhney v. Union of India (1992), wherein the Apex Court had stated that while effecting the reservations in favour of category of persons like 'persons with disabilities', it would be obligatory on the part of the employer to ensure that the percentage of reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes remains intact. 

"It is seen that on account of the faulty procedure adopted by the University, candidates belonging to ETB Communities who were otherwise entitled to 9 posts in a process of selection for filling up of 63 vacancies, could get only 8 posts. That apart, the procedure adopted by the University is violative of Rule 15 of Part II KS & SSR also, for the same is contrary to the rotation turns provided for in the Annexure to Part II KS & SSR. In terms of the said Annexure, the rotation turns for ETB Communities are 2, 14, 18, 28, 34, 42, 54, 58 and 62 and on account of the introduction of additional slots in the roster, the turns of ETB communities have been changed to 3, 15, 19, 30, 36, 44, 57 and 61. When a percentage of reservation is fixed in favour of a category by allotting reserve points in a roster, the same are to be filled from among the members of that reserved category only," the court held.

Factual Background

The Calicut University had invited applications for appointment to the post of Assistant Professor in various departments of the University. The number of vacancies that had been notified by the University were 63, of which two were in the Department of Journalism and Mass Communication. The petitioner had applied for the post and was assigned Rank 2 in the rank list. However, petitioner said, despite there having been 2 vacancies in the department, only the candidate who was allotted Rank 1 had been appointed, and not her.

The University is following the 100 Point Roster which is given in the Annexure to Part II Kerala State and Subordinate Service Rules (KS & SSR), and as per which all departments of the University is treated as a single unit. As per the same, roster points 31 and 54 were the slots for filling the vacancies in the Department, of which the vacancy corresponding to roster point 31 was due to open competition candidates, while the vacancy corresponding to roster point 54 was due to candidates belonging to Ezhavas, Thiyyas and Billavas Communities (ETB Communities).

The petitioner argued that the first rank holder ought to have been appointed against the vacancy corresponding to roster point 31, while he, being the second rank holder as well as a candidate belonging to the category ETB Communities, should have been appointed against the vacancy corresponding to roster point 54. The petitioner averred that instead of doing so, the University claimed that the vacancy corresponding to roster 54, as well as those corresponding to roster points 2, and 28 were to be earmarked for candidates belonging to the Special Reservation Category - “persons with disabilities” - in terms of Section 34 of the Rights of Persons with Disabilities Act, 2016 (hereinafter, Act, 2016)

Proceedings Before the Single Judge 

The petitioner contended before the Single Judge that the social reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes had to be effected vertically, while the special reservation in favour of persons with disabilities had to be effected horizontally, which is to be given effect to after filling up the slots by accommodating the candidates entitled to reservation against the social reservation categories.The petitioner claimed that this was to be done after deleting the corresponding number of candidates therefrom, without affecting the percentage of reservations in favour of the former.

However, the petitioner alleged that instead of following such procedure, the University effected reservation in favour of persons with disabilities vertically by earmarking roster points 2, 28 and 54 for the same, and it was due to this reason that the petitioner was not appointed against roster point 54. It was also alleged by the petitioner that on account of the incorrect procedure adopted by the University, the candidates belonging to ETB Communities who were otherwise entitled to 9 posts in a process of selection for filling up of 63 vacancies, could get only 8 posts.

The University submitted that three additional slots had been introduced in the 100 Point Roster contained in the Annexure to Part II KS & SSR as slots 1A, 26A and 51A to comply with the requirement of 4% reservation, as provided under Section 34 of the Act. The University admitted that due to the same, the original slot 31 became slot 29 and the original slot 54 became slot 51A,, and it was on this account that the petitioner was not appointed. The University took the firm stance that the reservation in favour of persons with disabilities could only be given effect to in the manner followed by it, and there was thus no illegality. 

The Single Judge dismissed the writ petition stating that since the vacancy corresponding to roster point 54 had been filled by appointing a candidate belonging to ETB Communities, though not in the Department of Journalism and Mass Communication, there was no illegality in the appointments effected.

Division Bench Ruling

The Division Bench in this case perused Section 34 of the Act, 2016 which stipulates that not less than 4% of the total number of vacancies shall be filled up with persons with benchmark disabilities, of which one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one percent for persons with benchmark disabilities under clauses (d) and (e), referred to in the provision. The provision also provides for carrying forward of the vacancy if suitable persons with such benchmark disability could not be found. 

The Division Bench took the firm view that since the reservation in favour of persons with disabilities under Section 34 of the Act, 2016 was "one that falls within the purview of Article 16(1) of the Constitution, there cannot be any doubt to the proposition that the said reservation has to be given effect to only horizontally".

The Court noted that the said aspect had also been clarified in precedents such as Indira Sawhney, Anil Kumar Gupta v. State of U.P. (1995), and Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007), but the University had not followed the same. Instead, it noted that the University had effected vertical reservation in favour of persons with disabilities, by earmarking roster points 1, 26 and 51 for the said classes and creating additional slots in those roster points as slots 1A, 26A and 51A to protect the interests of candidates who were otherwise entitled to be considered for appointment against vacancies corresponding to the said roster points.

It noted that with the introduction of the 3 additional slots in the roster for reservation for persons with disabilities, the vacancy corresponding to slot 54 had become slot 51A, and no candidate was appointed by the University against the said slot since there were no candidates among persons with disabilities who had applied for the said vacancy. 

The Division Bench thus found that the procedure adopted by the University was faulty, and violative of the Rules. 

"Again, the procedure adopted by the University is violative of the requirement under Section 34 of the Act also, as, if the said procedure is adopted, in a rotation of 104 appointments, only 4 persons with disabilities would be appointed, which may not satisfy the requirement of 4% reservation", it added. 

The court directed the University to appoint petitioner/appellant as Assistant Professor in the Department of Journalism and Mass Communication in the vacancy corresponding to roster point 54 forthwith.

It was also directed to rework the rotation chart in respect of the appointments already made in pursuance of the notification, notionally, following the procedure prescribed by the Apex Court in various precedents and to retain those persons who had been appointed otherwise than in accordance with the said procedure in supernumerary posts, so that they would not be affected by the present decision and the University would also be free to adjust their appointments against future vacancies as and when they arise. 

"It is clarified that in the process of reworking the roster chart as directed, the University would be free to make up the shortfall due to the category “persons with disabilities”, if qualified hands are available among the applicants for selection and if the reservation in favour of the category 'persons with disabilities' cannot be completed even after following the said procedure, the shortfall can be made up by earmarking the requisite number of vacancies next arising in the category of Assistant Professor for the category 'persons with disabilities',” the Court said. 

Lastly, it clarified that the directions in the judgment would not affect the rights of parties in pending writ petitions where the selection and appointments made pursuant to the notification were already under challenge. 

The appellant in this case was represented by Senior Advocate P. Ravindran, and Advocates Lakshmi Ramadas, Aparna Rajan, Sreedhar Ravindran, and M.R. Sabu. Standing Counsel of Calicut University P.C. Sasidharan, and Advocates Amal Kasha, T.B. Hood, and M. Isha appeared on behalf of the respondents. 

Case Title: Dr. Anupama K.P. v. University of Calicut & Ors. 

Citation: 2023 LiveLaw (Ker) 62

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