Kerala High Court
Babu.K.P vs Kerala State Electricity Board Ltd on 22 August, 2001
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 22ND DAYOF NOVEMBER 2016/1ST AGRAHAYANA, 1938
WP(C).No. 23104 of 2016 (K)
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PETITIONER(S):
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BABU.K.P
SUB ENGINEER (ELECTRICAL),
KERALA STATE ELECTRICITY BOARD,
ELECTRICAL SUB DIVISION, THALASSERY-670101.
RESIDING AT KATILPARAMBATH, P.O.PARAL,
THALASSERY, KANNUR DISTRICT-670671.
BY ADVS.SRI.P.M.PAREETH
SRI.MOHAMMED SHAMEEL
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD LTD.
REP. BY ITS SECRETARY, VIDYUTHI BHAVANAM,
PATTOM,THIRUVANANTHAPURAM-695004.
2. CHIEF ENGINEER (HRM)
KERALA STATE ELECTRICITY BOARD,
VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.
R1,2 BY ADV. SRI.K.S.ANIL, SC, KSEB
BY ADV.SMT.A.G. ANEETHA, SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-11-2016, THE COURT ON THE SAME DAYDELIVERED THE
FOLLOWING:
WP(C).No. 23104 of 2016 (K)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 A TRUE COPY OF THE DISABILITY CERTIFICATE DATED 22.8.2001
IN RESPECT OF THE PETITIONER ISSUED BY THE MEDICAL BOARD ATTACHED
TO THE DISTRICT HOSPITAL KANNUR.
EXHIBIT P2 A TRUE PHOTO COPY OF THE MEMO NO.EB2/S.E.(ELE)/PHR/1/08/1
DATED 15.11.2008 ISSUED BY THE SECOND RESPONDENT.
EXHIBIT P2(A) AA TRUE PHOTO COPY OF THE B.O. M.IV-11552/67/DATED
13.7.1967.
EXHIBIT P2(B) A TRUE PHOTOC COPY OF THE B.O.EC.IV-17428/70 DATED
9.12.1970.
EXHIBIT P2(C) A TRUE COPY OF THE DIPLOMA CERTIFICATE DATED 21.4.1998
IN RESPECT OF THE PETITIONER.
EXHIBIT P2(D) ATRUE PHOTO COPY OF THE MARK LIST.
EXHIBIT P3 A TRUE PHOTO COPY OF THE BOARD ORDER DATED 19.32007
TOGETHER WITH TEH RELEVANT PORTION OF THE LONG TERM SETTLEMENT
DATED 28.2.2007.
EXHIBIT P4 A TRUE COPY OF THE BOARD ORDER DATED 12.5.2010.
EXHIBIT P5 A TRUE PHOTO COPY OF THE REPRESENTATION DATED 29.10.2015
SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 15.4.2016 ISSUED ON
BEHALF OF THE FIRST RESPONDENT TO THE PETITIONER.
EXHIBIT P7 A TRUE PHOTO COPY OF THE DECISION REPORTED IN 2015(3)
KLT900.
RESPONDENT(S)' EXHIBITS: NIL.
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//TRUE COPY//
P.S.TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.23104 of 2016
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Dated this the 22th day of November, 2016
J U D G M E N T
The petitioner was working as a Sub Engineer (Electrical) under the respondent Board, initially on contract basis, after being sponsored by the Employment Exchange. While so, by Ext.P2 order dated 15.11.2008, he was regularised in the services of the respondent Board, taking note of his physical disability, which was assessed at 50%. Ext.P2 order of regularisation indicates that his regularisation was consequent to Government orders that had directed the appointment of physically handicapped employees, who were in the services of the Board, provisionally, during the period from 15.08.1998 to 15.08.1999. Having been regularised in service as a Sub Engineer, the petitioner aspired for promotion, as Assistant Engineer, to the quota earmarked for diploma holders. As per the Recruitment Rules in force under the respondent Board, the recruitment to the post of Assistant Engineer is through direct recruitment (50%) and promotion (50%). Of the 50% vacancies that is earmarked for filing up by promotion, 30% are to be filled from -2- W.P.(C).No.23104 of 2016 diploma holders and 20% from certificate holders. The petitioner, being a diploma holder, aspired for promotion under the 30% quota reserved for diploma holders. While so, by Ext.P3 memorandum of settlement, that was entered into between the management and workmen of the respondent Board, under Section 18 of the Industrial Disputes Act, 1947, it was envisaged that Special Promotion Rules to physically handicapped employees in 3% quota will be implemented by the respondent Board after identifying eligible categories. The terms of the settlement therefore envisaged a reservation of 3% of the vacancies to be filled in by physically handicapped employees in posts that were identified by the respondent Board for the purposes of such reservation. In discharge of their obligations under Ext.P3 settlement, the respondent Board by Ext.P4 identified the posts of Senior Superintendent, Assistant Engineer(Civil) and Assistant Engineer (Electrical), for the purposes of reservation for 3% physically handicapped persons. It was ordered, thereafter, that 3% vacancies in the posts, inter alia, of Assistant Engineer (Electrical) under the respondent Board would be reserved for promotion from physically handicapped persons - either visually -3- W.P.(C).No.23104 of 2016 handicapped, hearing handicapped or orthopaedically handicapped, and each of the three categories would be allowed reservation of 1% each. It was thereafter contemplated that the placement of physically handicapped employees would be against Sl.No.33, 66 and 99 in a cycle of 100 vacancies, on out of turn basis, from the categories of physically handicapped employees. Ext.P4, however, made it clear that, the benefit of the reservation therein would be admissible to eligible physically handicapped candidates with effect from the date of the settlement order, namely, 19.03.2007, and further, that the physically handicapped employees who had availed the benefit once in appointment would not be eligible for promotion under the scheme. When the petitioner, by Ext.P5 request, sought for a consideration of his candidature for promotion in terms of Ext.P4 settlement order, his request was turned down by Ext.P6 order dated 15.04.2016, which took the stand that the reservation envisaged under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of the Rights and Full Participation) Act, 1995, can only be in respect of direct recruitment, and cannot be applied in the case of promotion. Reliance was placed on a Division Bench decision of -4- W.P.(C).No.23104 of 2016 this Court in Sivadasan v. State of Kerala [2015 (3) KLT 900] to justify the said response. In the writ petition, the petitioner impugns Ext.P6 order, and seeks a direction to the respondents to consider him for promotion to the post of Assistant Engineer (Electrical) in the 3% quota earmarked for physically handicapped persons as contemplated in Ext.P4 Board order.
2. A counter affidavit has been filed on behalf of the 1st respondent, wherein after referring to the provisions of the 1995 Act, it is stated that, the Board had decided to reserve 3% vacancies for appointment of physically handicapped candidates in the category of Senior Superintendent, as some physically handicapped employees of the Board requested for promotion to these vacancies. It was then clarified by the Board that, the reservation would be applicable only for direct recruitment, and since this would be in the nature of a special recruitment, the Government was requested to take up the matter with the Public Service Commission. Thereafter, referring to the provisions of the long term settlement, it is stated that, in discharge of the obligations under the long term settlement, the Board identified -5- W.P.(C).No.23104 of 2016 three posts for reservation for 3% physically handicapped persons namely, Senior Superintendent, Assistant Engineer (Civil) and Assistant Engineer (Electrical). It is stated that, the Board has also decided to consult the Kerala Public Service Commission for framing rules regulating the promotion to the identified categories of posts. Referring to Ext.P4 Board order, it is also stated that, as per proceedings dated 30.11.2013, the Chairman and Managing Director of the Kerala State Electricity Board had declared the aforementioned term in the long term settlement 2007 as ultra vires and void ab initio as it violated the equality and equal protection Clause in respect of other employees of the Board. Reference is also made to W.P(C).No.29928 of 2013, which is stated to be pending before this Court, wherein an interim stay against the implementation of the aforementioned proceedings dated 30.11.2013 of the Chairman and Managing Director is said to be in place. Ext.P6 order is sought to be justified on the reasons stated therein.
3. I have heard the learned counsel appearing for the petitioner as also the learned Standing counsel appearing for the -6- W.P.(C).No.23104 of 2016 respondent Board.
4. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, this is a case where the petitioner, who was working on provisional basis as Sub Engineer under the respondent Board, got the benefit of regularisation in service pursuant to a Government order that contemplated the regularisation of physically handicapped persons, who were working under the respondent Board on provisional basis during a specified period. The said appointment of the petitioner on regular basis, as Sub Engineer under the respondent Board, was not pursuant to any order passed in terms of the 1995 Act or in terms of Ext.P3 settlement. In fact, the identification of the post of Assistant Engineer (Electrical), and the other posts, for the purposes of 3% reservation itself was done only by Ext.P4 Board order dated 12.05.2010. The petitioner's request before the respondent Board was for consideration of his candidature for the purposes of promotion to the post of Assistant Engineer (Electrical), which was one of the posts identified by the Board itself for the grant of 3% reservation in promotion. Since -7- W.P.(C).No.23104 of 2016 the claim of the petitioner for the benefit of reservation was pursuant to the terms of the long term settlement entered into in terms of Section 18 of the Industrial Disputes Act, and not under the provisions of the 1995 Act, I am of the view that, the stand taken by the respondent Board in Ext.P6 order cannot be legally sustained. It is also to be noted that, while Ext.P4 Board order clearly contemplates that the benefit of reservation, in terms of the settlement, will not be available to a person on more than one occasion, it is not in dispute that, the petitioner did not obtain the benefit of reservation, in terms of the settlement, on any prior occasion. The claim of the petitioner for promotion as Assistant Engineer, in the quota earmarked for diploma holder, read with the 3% reservation contemplated for physically handicapped candidates, was his first claim for the benefit of reservation in terms of the settlement. I, therefore, find that, the stand taken by the respondents in Ext.P6 order cannot be legally sustained and the same is therefore quashed. There is yet another aspect of the matter. A recent judgment of the Supreme Court in Civil Appeal No.5389 of 2016, finds that, once a post is identified for the purposes of reservation contemplated under the 1995 Act, then the -8- W.P.(C).No.23104 of 2016 benefit of reservation must be extended to persons appointed to the posts irrespective of the mode of recruitment adopted by the State for filling up the said posts. Taking cue from the said judgment, it could be said that, the respondent Board had identified the posts of Assistant Engineer (Electrical), among other posts for the extension of the benefit of reservation contemplated for physically handicapped candidates. If that be the case, then it was not open to the respondent Board to confine the benefit of reservation, contemplated at the time of appointments to the said posts, to only one category of recruitees namely, direct recruitees, and to the exclusion of promotees. On this ground also Ext.P6 order passed by the respondent Board cannot be legally sustained.
Resultantly, I allow the writ petition by quashing Ext.P6 order and directing the respondents to consider the candidature of the petitioner for the purposes of promotion to the post of Assistant Engineer (Electrical) in the quota reserved for orthopaedically handicapped persons, after drawing up a list of candidates in the order of seniority for the said purpose. The respondents shall complete the exercise of consideration of the -9- W.P.(C).No.23104 of 2016 candidature of the petitioner for the said promotion, in accordance with the directions given above, within a period of three months from the date of receipt of a copy of this judgment.
The writ petition is disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns/22.11.16