Kerala High Court
Leesamma Joseph vs State Of Kerala on 9 March, 2020
Bench: K.Vinod Chandran, P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941
OP(KAT).No.286 OF 2015(Z)
AGAINST THE ORDER IN O.A. NO.343 OF 2015 DATED 27.02.2015 OF THE
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPELLANT:
LEESAMMA JOSEPH
AGED 51 YEARS
CASHIER, DISTRICT POLICE OFFICE, IDUKKI,RESIDING AT
QUARTER NO.E6B, PAINAVU P.O.IDUKKI DISTRICT -
685 603.
BY ADVS.
GIRIJA K.GOPAL
SMT.K.N.VIGY
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOME
AFFAIRS,SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 STATE POLICE CHIEF, KERALA
THIRUVANANTHAPURAM - 695 010.
3 DISTRICT POLICE CHIEF, IDUKKI
KUYILIMALA, PAINAVU P.O., IDUKKI, DISTRICT - 685 603.
4 KERALA ADMINISTRATIVE TRIBUNAL
REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM.
FOR R1 TO R4 BY SRI.P.N.SANTHOSH, SR.GOVERNMENT
PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(KAT) No.286 of 2015 2
JUDGMENT
Vinod Chandran, J.
The only issue arising in the above case is as to whether the persons having physical disability could be granted reservation in promotion also. The decision in Rajeev Kumar Gupta and Others v. Union of India and Others [(2016) 13 SCC 153] held that such reservation would be applicable for promotions also. Later, another Division Bench referred the matter to a Larger Bench expressing an opinion that this could go against the Larger Bench decision in Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217]. A three Judge Bench in Siddaraju v. State of Karnataka and Others [2020 (1) KHC 609] affirmed that such reservation is applicable to promotions. We hence set aside the order of the Kerala Administrative Tribunal (for short 'the Tribunal') and as a consequence allow the Original Application. The applicant should be considered for her promotion based on the disability at the time when her claim originally arose; subject to her seniority with reference to the other physically O.P.(KAT) No.286 of 2015 3 challenged candidates entitled to such reservation. She also should be given the notional benefits of her promotion from the date she is found entitled. If the petitioner has not superannuated then she shall be given promotion within one month from today and all her monetary benefits shall also be given to her from that date and even if not promoted, from the date of expiry of one month from today. If the petitioner has already retired, on the basis of the notional pay, her last pay drawn shall be reckoned and her pension fixed in accordance with that. Original Petition is allowed leaving the parties to suffer their respective costs throughout.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
P.V.KUNHIKRISHNAN
pkk xxx JUDGE
O.P.(KAT) No.286 of 2015 4
APPENDIX
PETITIONER'S EXHIBITS & ANNEXURES:
EXHIBIT P1 EXT.P-1: TRUE COPY OF THE O.A. NO.343/2015 FILED BY THE PETITIONER EXHIBIT P2 EXT.P-2: TRUE COPY OF THE JUDGEMENT OF THE HON'BLE HIGH COURT OF JUDICATURE AT BOMBAY AT PIL NO.106/2010 EXHIBIT P3 EXT.P-3: TRUE COPY OF THE COMPUTER PRINT OUT OF THE ORDER OF THE HON'BLE SUPREME COURT IN CC NO.13344/2014 DATED 12.9.2014 EXHIBIT P4 EXT.P-4: TRUE COPY OF THE ORDER DATED 27.2.2015 IN SPECIAL LEAVE TO APPEAL NO.5914/2015 IN NOML NO.690/2014 IN RPL NO.85/2014 IN PIL NO.106/2010 OF THE HON'BLE SUPREME COURT.
EXHIBIT P5 EXT.P-5: TRUE COPY OF THE JUDGEMENT IN WP NO.1630/2013 DATED 24.9.2014 OF THE HON'BLE ALLAHABAD HIGH COURT. EXHIBIT P6 EXT.P-6: TRUE COPY OF ORDER DATED 20.3.2015 IN SLP NO.4641/2015 OF THE HON'BLE SUPREME COURT OF INDIA.
EXHIBIT P7 EXT.P-7: TRUE COPY OF THE COMMON ORDER IN OA (EKM) NOS. 2 AND 3 OF 2015 DATED 15.1.2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P8 EXT.P-8: TRUE COPY OF THE ORDER IN OA NO.343/2015 DATED 27.2.2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
ANNEXURE A1 TRUE COPY OF MEDICAL CERTIFICATE DATED 20.09.1991 ISSUED TO THE APPLICANT BY ORTHOPEADIC SURGEON.
ANNEXURE A2 TRUE COPY OF ORDER NO.GO(MS)100/96/HOME DATED 10.06.1996 OF THE 1ST RESPONDENT.
O.P.(KAT) No.286 of 2015 5ANNEXURE A3 TRUE EXTRACT OF FINALIZED SENIORITY LIST OF TEST QUALIFIED LDCS IN POLICE DEPARTMENT AS ON 27.10.2001.
ANNEXURE A4 TRUE EXTRACT OF COPY OF THE FINALIZED SENIORITY LIST OF TEST QUALIFIED LDCS IN POLICE DEPARTMENT AS ON 16.10.2003.
ANNEXURE A5 TRUE EXTRACT OF COPY OF THE FINALIZED SENIORITY LIST OF SENIOR CLERKS (UDCS) IN THE POLICE DEPARTMENT. ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED 18.10.2014 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.
ANNEXURE A7 TRUE COPY OF LETTER NO.A1-105/2014/ID DATED 25.10.2014 OF THE 3RD RESPONDENT.
ANNEXURE A8 TRUE COPY OF THE LETTER NO.A1- 105/2014/ID DATED 01.12.2014 OF THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C)NO.2821/2010 DATED 04.08.2010 OF THE HON'BLE HIGH COURT OF DELHI.
EXHIBIT P10 TRUE COPY OF THE CIRCULAR NO.7/18/1/2008/A-2/2015 DATED 28.07.2015 OF THE CHIEF SECRETARY, GOVERNMENT OF UTTAR PRADESH ALONG WITH ITS TRUE ENGLISH TRANSLATION. RESPONDENTS'EXHIBITS:
EXHIBIT R2 A TRUE COPY OF THE RELEVANT PAGES OF THE FINALISED SENIORITY LIST OF TEST QUALIFIED LD CLERKS AS ON 16.10.2003.
EXHIBIT R2 B TRUE COPY OF THE DGO NO.810/2015 DATED 05.05.2015.
EXHIBIT R2 C TRUE COPY OF THE RELEVANT PAGES OF PROVISIONAL SENIORITY LIST OF SENIOR CLERKS (UDCS) AS ON 25.03.2011.
EXHIBIT R2 D TRUE COPY OF THE PERSONS WITH DISABILITIES ACT, 1995.