Kerala High Court
Chandrasekharan Pillai vs The Travancore Devaswom Board on 5 February, 2019
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940
WP(C).No. 22255 of 2016
PETITIONER:
CHANDRASEKHARAN PILLAI
S/O.JANARDHANAN PILLAI, AGED 41 YEARS,
MULLASSERIL VEEDU,
KUREEPUZHA, KAVANADU P O, KOLLAM.,
BY ADVS.
SRI.PRATHEESH.P
SMT.S.SEETHA
RESPONDENTS:
1 THE TRAVANCORE DEVASWOM BOARD
REPRESENTED BY ITS SECRETARY, TDB BILDING,
NANTHANCODE, THIRUVANANTHAPURAM-695001.
2 THE COMMISSIONER
TRAVANCORE DEVASWOM BOARD, NANTHANCODE,
THIRUVANANTHAPURAM-695001,
3 ASST.DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD
NANTHANCODE, THIRUVANANTHAPURAM-695001.,
4 THE ASSISTANT COMMISIONER
(KOLLAM GROUP), TRAVANCORE DEVASWOM BOARD,
ANANDAVALLEESWARAM, KOLLAM-691012,
5 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF DEVASWOM, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
BY ADVS.
SRI.T.K.AJITH KUMAR, SC, TDB
GOVT.PLEADER.SRI.S.DILIP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 22255 of 2016
2
JUDGMENT
The petitioner, a physically handicapped employee working under the Travancore Devaswom Board, seeks to direct the second respondent-Commissioner to hear the petitioner and re-consider his Ext.P3 application seeking to appoint him in Clerical cadre on permanent basis.
2. The petitioner states that, he was appointed as a Watcher under the respondents after due selection process in the year 2003. On 03.07.2004, the petitioner met with an accident and sustained serious injuries. The right leg of the petitioner was amputed and the petitioner was under medical treatment for nearly 22 months. After the treatment the petitioner resumed duty as Watcher on 06.05.2006 under the Sakthikulangara Sub Group of Travancore Devaswom Board.
3. According to the petitioner, he had passed the departmental tests conducted during 2008-2010 and also passed the account test conducted by the Kerala Public Service Commission. The petitioner submitted a representation for posting in a suitable vacancy taking into account his qualification since due to his disability WP(C).No. 22255 of 2016 3 it was difficult for him to discharge duties of Watcher. The representation submitted before the Assistant Devaswom Commissioner, was placed in the Adalath conducted by the Devaswom Board. The Adalath decided to grant increments to the petitioner for the period of 22 months. The petitioner was also posted as a Peon under the Assistant Commissioner (Kollam Group), but the lien of the petitioner was retained in the post of Watcher.
4. The petitioner contends that, he faces difficulty to work as Peon, due to physical disability. Therefore the Commissioner of the Devaswom Board had directed to assign clerical work to the petitioner. Though he was assigned the work of Clerk, the benefits and salary of a Clerk was not given to the petitioner, contends the petitioner. There are many employees under the Devaswom Board who have been promoted as Clerk though they were initially appointed as Peon, Zerox Operator etc. The petitioner contends that, though he is qualified to become a Clerk, the petitioner has not been given promotion as or salary of Clerk. Even now, the petitioner is a Watcher as per records. The petitioner claims that he has a right to get benefits of reservation under the Disabilities Act, but the privileges under the beneficial legislation are being denied to him. WP(C).No. 22255 of 2016 4
5. The petitioner therefore filed WP(C)No.19076/2015, which was disposed as per Ext.P4 judgment dated 25.06.2015. By the said judgment this Court directed the second respondent to consider and pass orders on petitioner's representation after hearing the petitioner. Consequently, the Deputy Devaswom Commissioner has now passed Ext.P5 order stating that, reservation benefits to disabled, are not implemented in the Devaswom Board. At present the petitioner has been assigned the work of Duty Clerk, taking into account his physical condition. The respondents can promote the petitioner only following the low-paid list. The petitioner challenges Ext.P5 order.
6. A statement was filed on behalf of respondents 1 to 4. The respondents state that, the second respondent allowed the application of the petitioner to work as a Peon on duty basis taking into account his disability. Subsequently, on a representation filed by the petitioner's wife narrating difficulties faced by the petitioner and seeking to permit him to do clerical work, the second respondent issued Ext.P1 and allowed the petitioner to do clerical work on duty basis at the office of the Assistant Devaswom Commissioner, Kollam. The petitioner can be assigned the work of Clerk only on duty basis. For regular appointment to the clerical post, separate Rules exist and WP(C).No. 22255 of 2016 5 promotion can be effected only as per the said Rules, following the seniority list. Therefore, no further relief can be granted to the petitioner and the writ petition is liable to be dismissed, contend the respondents.
7. I have perused the pleadings and heard the arguments advanced. It is the case of the respondents that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short 'Persons with Disabilities Act, 1995) has not been implemented in the Travancore Devaswom Board. Even if the Act is implemented it is doubtful whether the petitioner can legally claim appointment as Clerk on a regular basis. As per the 1 st proviso to Section 47(1) of the Persons with Disabilities Act, 1995, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. The respondents have, taking into account the physical condition of the petitioner, placed him in clerical post on a duty basis. His pay also has been protected. The petitioner can hold the post of Clerk on a substantive basis only on getting promotion to the post. The respondents specifically state that, such promotion can be done only on the basis of seniority and following the extant Rules. WP(C).No. 22255 of 2016 6 The petitioner will be promoted as Clerk on a regular basis when his turn comes and if the petitioner satisfies the eligibility condition at that point of time.
7. In the circumstances, I find no reason to set aside Ext.P5 order. However, I direct the respondents 1 to 4 that the petitioner's request for promotion to the post of clerical cadre shall be considered by respondents 1 to 4 sympathetically when the petitioner's turn arises, if necessary, in relaxation of the Recruitment Rules.
With the above direction, the writ petition stands disposed of.
Sd/-
N.NAGARESH
dlk/06.02.19 JUDGE
WP(C).No. 22255 of 2016
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APPENDIX
PETITIONER'S/S EXHIBITS:
P1 THE COPY OF THE ORDER PASSED BY THE IST
RESPONDENT DTD 26/7/2013.
P2 THE COPY OF THE INFORMATION GIVEN UNDER
RIGHT TO INFORMATION ACT DTD 7/3/2015
P3 THE COPY OF THE REPRESENTATION FILED
BEFORE THE 2ND RESPONDENT DTD 19/12/2014
P4 THE COPY OF THE JUDGMENT PASSED BY THIS
HON'BLE COURT IN WPC NO.19076/2015 DTD
25/6/2015.
P5 THE COPY OF THE ORDER
NO.ROC.3106/12/MIS.A DTD 29/6/2015
PASSED BY THE 2ND RESPONDENT.