Full Judgment
K.A. Abdul Gafoor, J.
1. Regularisation of service of the appellant is now cancelled and his services are dispensed with as per Ext. P-15. The challenge against the said order failed. Therefore, this Writ Appeal. Few facts are essential for its disposal.
2. He was initially employed on a temporary basis in terms of Rule 9(a)(i) of the General Rules as a Lower Division Clerk, as per Ext. P-1. While he was serving as a temporary appointee, taking into account of the international year of physically handicapped persons, the Government issued directions to regularise the physically disabled temporary hands working in service at that time. The petitioner had some disablement for his right thumb. On the basis of the certificate obtained in that regard, his services were regularised by the head of the department. While he was thus continuing as a regular employee, there was complaint by the Association of Physically Challenged Persons that he had obtained the undeserving benefits of regularisation as he did not have that much disability to be entitled to enjoy the benefit of regularisation. An Original Petition was filed by the said association. This resulted in an enquiry being conducted and finally Ext. P-8 order was passed terminating his services. This was without affording an opportunity of being heard to him. Therefore, in an Original Petition filed by him, the termination was quashed and he was directed to be reinstated in services with all consequential benefits. But as per Ext. P-9 Judgment, the learned Single Judge observed that:
If any proceedings are to be initiated against the petitioner the same shall be done only after due notice to him and giving reasonable opportunity to show cause against such action.
3. Necessarily, as there was complaint from the Association of Physically Challenged Persons, Government had to act in consonance with the observation of the learned Single Judge. So he was issued with Ext. P-13 show cause notice. He had produced a Medical Certificate from the Professor and Head of Orthopaedic Department, Medical College, Calicut to show that he did have disability to the right thumb. But the Government found that he did not have that much percentage of disability to entitle him for regularisation; and that he had obtained regularisation fraudulently. Accordingly, Ext. P-15 order was passed again terminating him from service. This was challenged again by him in Writ Petition No. 3276/2004. The learned Single Judge dismissed the Writ Petition. Therefore, this appeal.
4. The main contention before us by the appellant/writ petitioner is that the learned Single Judge did not advert to the specific contention urged in the Writ Petition that at the relevant point of time when regularisation was effected, there was no specific orders or rule requiring a specified percentage of disability to draw the benefit of regularisation as available at that time. It is also submitted that the 8% disability he did have which heavily impaired movement of his right thumb was sufficient to consider him as an orthopaedically handicapped person and to confer the benefit of regularisation. Therefore, the conclusion made in Ext. P-15 order that he did not have sufficient percentage of disability was contrary to the rules and orders in force at that time. It is further submitted that he had not produced any fake certificate. The only certificate that he had produced revealed only that much disability he had by reason of the deformed right thumb. It cannot be said that he had fraudulently obtained regularisation. Therefore, both the reasons stated for termination as contained in Ext. P-15 are wrong, it is contended.
5. It is true that the contention of the petitioner was that no percentage of disability had been prescribed by any Rule or Orders at the relevant point of time to entitle one for regularisation. But Rule 9(e) of the General Rules in Kerala State & Subordinate Services Rules, 1958 which enables regularisation of the physically handicapped persons in service in December, 1973 provides that the incumbent should have been blind, deaf, dumb or orthopaedicaliy handicapped. Orthopaedically handicapped is thus bracketed along with blind, deaf and dumb. In other words, the disability on account of orthopaedical handicap shall be to the same or equal extent as one is blind, deaf and dumb. While considering orthopaedical handicap, the explanations under Rule 9(e) makes it clear that:
The Orthopaedically Handicapped are those who have a physical defect or deformity which causes adequate interference to significantly impede normal functioning of the bones, muscles and joints.
6. The Medical Certificate narrated in Ext. P-9 Judgment disclosed that:
He is having absence of flexion of the inter phalangeal joint of the (R) thumb due to thethery of the flexion tendon in the sheath due to an old injury during childhood. His permanent disability is assessed as 8%.
7. Therefore, his disability is in inter phalangeal joint of the right thumb. There is no impediment for the normal functioning of the bones, muscles and joints together to style him as a 'orthopaedically handicapped person'. Absence of flexion of the inter phalangeal joint alone is not sufficient to style him as a 'physically handicapped person'. Necessarily, this statutory specification regarding the orthopaedical handicap shall have relevance whenever physically handicapped persons are regularised by reason of extending such benefit to them. When the Government in Ext. P-15 referred to the percentage of disability in the petitioner, what they meant should be obviously the aforesaid aspect referred to in clause c of explanation under Rule 9(e). Therefore, he was not entitled for regularisation. That is clear even going by the Medical Certificate that had been considered by this Court on earlier occasion. He does not have a case that he did have any more extent of disability to bring him within the aforesaid clause. No evidence in that regard has been produced.
8. At the same time, he had only disclosed that much disability even initially. Therefore, it cannot be said that he had committed any fraud in obtaining regularisation. If at all, anybody is guilty it was the officer concerned who regularised him without properly verifying the records and referring to the Rules. The finding in Ext. P-15 that he obtained regularisation by fraud is therefore, liable to be vacated. But at the same time that he did not have that much disability to entitle him for regularisation is sustained. Necessarily, there would be no reason for interference with the impugned Judgment.
9. Writ Appeal therefore, fails and is dismissed accordingly.