G. Sudhakaran v. Chief Secretary, Government of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 WP(C) NO. 12189 OF 2015** ## **PETITIONER:** **G.SUDHAKARAN, AGED 50 YEARS S/O. R.GOPALAN, TC 79/214, AMBADI, VELIVELAKAM, ORUVATHILKOTTA, ANAYARA P.O., THIRUVANANTHAPURAM-695 029.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENTS:** - **1 CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695 001.** - **2 SUPPLYCO, REPRESENTED BY ITS MANAGING DIRECTOR, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-682 020.** - **3 MANAGING DIRECTOR, KERALA CIVIL SUPPLIES CORPORATION, SUPPLYCO, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-682 020.** - **4 SECRETARY, FOOD AND CIVIL SUPPLIES DEPARTMENT, ROOM NO.159, 4TH FLOOR, NORTH BLOCK SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **5 SECRETARY, SOCIAL JUSTICE DEPARTMENT, GROUND FLOOR, SECRETARIAT, STATUE, THIRUVANANTHAPURAM-695 001.** - **6 SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF PRSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONAL AND TRAINING, NORTH BLOCK, NEW DELHI-110 001.** - **7 JOINT SECRETARY DEPWD, DEPARTMENT OF EMPOWERMENT OF PERSONS WITH DISABILITIES, MINISTRY OF SOCIAL JUSTICE & EMPOWERMENT, ROOM NO.517, B-II BLOCK, 5TH FLOOR,** WPC 12189/15 2 **PARYAVARAN BHAVAN, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003.** - **8 COMMISSIONER, STATE COMMISSIONERATE FOR DISABLED PERSONS, 1ST FLOOR, VTC BUILDING, SOCIAL WELFARE INSTITUTION COMPLEX, POOJAPPURA, THIRUVANANTHAPURAM-695 012.** **9 ADDL.R9- BOARD OF DIRECTORS, REP.BY ITS CHAIRMAN, SUPPLY CO, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-682020 (ADDL,.R9 IMPLEADED AS PER ORDER DATED 03.6.2019 IN I.A.NO.5/2019 IN THE WP(C))** **BY ADVS. SMT.MOLLY JACOB,SC,SUPPLYCO SRI.SUNIL KUMAR KURIAKOSE – GP SRI.M.A.VINOD - CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 12189/15 3 ## **JUDGMENT** The petitioner is stated to be presently working in the services of the Kerala Civil Supplies Corporation (hereinafter referred to as 'SUPPLYCO' for short). According to him, he joined the services of SUPPLYCO as a 'Helper' on 23.06.1989 and while in service, passed the Manual of Office Procedure and Departmental Tests by 01.07.2007. 2. The petitioner asserts that, therefore, on account of the fact that he is suffering from uncontested 40% physical disability, he ought to have been promoted to the next post of Junior Superintendent on completion of probation, under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the PD Act', 1995 for short). 3. The petitioner's specific contention is WPC 12189/15 4 that even though the SUPPLYCO was obligated to promote him under the provisions of the PD Act, 1995, he was not granted such horizontal promotion and was benefited with the same only along with the others in the year 2010 as a Junior Assistant; and further that even thereafter, he was not given any promotion horizontally though it is statutorily mandated. He says that the action of the SUPPLYCO and that of the Government of Kerala in denying him these benefits is in gross violation of the judgment of the Honourable Supreme Court in **Rajeev Kumar Gupta and Others v. Union of India and Others** [2016(3) KLT 263], wherein, the Honourable Court has declared it emphatically that even in the case of promotions, the provisions of the PD Act, 1995 would have to be complied with. 4. The petitioner contends that contrary to the above, the Government of Kerala has now issued Ext.P13 order dated 10.04.2019, merely saying that WPC 12189/15 5 after the Right of Persons with Disabilities Act, 2016 (PD Act, 2016) was brought into force, they have chosen - under the proviso to Section 34 thereof - 'not to issue any instruction to any of the departments or public sector undertakings to effect promotions horizontally'. He says that this stand of the Government in Ext.P13 is contumacious from the touchstone of **Rajeev Kumar Gupta** (supra) and thus prays that the said order be set aside. 5. Sri.V.Vinay, learned counsel for the petitioner, supplemented the afore submissions by saying that, in fact, in a matter relating to the services of the Kerala State Electricity Board (KSEB for short), a learned Division Bench of this Court has issued Ext.P12 judgment, confirming an earlier judgment of the learned Single Bench of this Court, to the effect that the petitioner therein – who is similarly situated to the petitioner herein – be offered horizontal promotion, under the provisions of the PD Act, WPC 12189/15 6 1995, in obedience to the directions of the Honourable Supreme Court in **Rajeev Kumar Gupta** (supra). 6. As an alternative submission, Sri.V.Vinay submitted that, even if it is assumed that after PD Act, 2016, the Government had any option to deny horizontal promotion, the same would not apply to those promotions that were entitled to his client prior to April 2017, when the said Act came into force and that **Rajeev Kumar Gupta** (supra) would apply for such promotions without exception. He, therefore, prayed that Ext.P13 be set aside and the SUPPLYCO be directed to consider his client's case for promotion to all the posts, to which he was entitled subsequent to his having obtained Departmental Test in the year 2007, within a time frame to be fixed by this Court. He concluded his submissions by praying that the afore be directed to be done within the shortest time frame, because his client is retiring in May WPC 12189/15 7 2022. 7. The submissions of Sri.V.Vinay was contested very vehemently by Sri.Sunil Kumar Kuriakose – learned Government Pleader, by relying on the averments in the counter affidavit filed on behalf of respondents 1 and 4. He conceded that in **Rajeev Kumar Gupta** (supra), the Honourable Supreme Court has declared that promotions are liable to be made even horizontally, but that this would not apply once the PD Act, 2016 came into effect. He accused the petitioner of not having approached this Court after 2007, when he claims to have become entitled for horizontal promotion and to have waited for over eight years, when the regular promotions had already taken effect, of which he was also one of the beneficiaries. 8. The learned Government Pleader, thereafter, submitted that, as is stated in the counter affidavit, the Government of Kerala has now decided, under the provisions of Section 34 of WPC 12189/15 8 the PD Act, 2016, that no horizontal promotions will be offered in their services. He concluded his submissions by saying that, in any event of the matter, this Writ Petition is not maintainable since the petitioner cannot seek promotions without having impleaded all the other persons promoted during the period from 2007. He, therefore, prayed that this Writ Petition be dismissed. 9. Smt.Molly Jacob – learned Standing Counsel for the SUPPLYCO, adopted most of the submissions of Sri.Sunil Kumar Kuriakose, adding that Ext.P12 judgment of this Court relating to an employee of KSEB would not apply to the facts of this case, since therein it is clear that posts for horizontal promotions had already been identified. She submitted that as far as SUPPLYCO is concerned, no such posts are identified and that, in any event, the petitioner did not seek such promotion until he filed this Writ Petition, by WPC 12189/15 9 |which time many other persons had already been| |---| |promoted. She argued that, therefore, if this| |Court is to accede to the request of the| |petitioner at this point of time, the other| |promotees would be put to prejudice. She also,| |therefore, prayed that this Writ Petition be| |dismissed.| |10.<br>When I evaluate the afore submissions, it| |is without doubt that the petitioner has not| |impleaded any of the persons who had been promoted| |to the post of Junior Assistants from the year| |2007 onwards. It is also<br> _prima facie_<br>_,_| |incontestable that he had chosen to wait for more| |than eight years thereafter to approach this| |Court, in the year 2015.| |11.<br>That said, however, in the year 2016 the| |Honourable Supreme Court delivered <br>**Rajeev Kumar**| |**Gupta**<br>(supra) which mandates the Government and| |the SUPPLYCO to consider promotions horizontally| |in the services of the latter. Subsequently, the| WPC 12189/15 10 Honourable Supreme Court in the year 2020, in **Siddaraju v. State of Karnataka and Others** [2020(1)KHC 609], declared unequivocally that the directions in **Rajeev Kumar Gupta** (supra) must be complied with in its letter and spirit. 12. Obviously, therefore, the Honourable Supreme Court was fully aware that the PD Act, 2016 had come into force, but still directed that **Rajeev Kumar Gupta** (supra), which referred to PD Act, 1995, should be obeyed. 13. The above being said, when I examine Ext.P13, it is clear that the Government did not consider the impact of either **Rajeev Kumar Gupta** (supra) or **Siddaraju** (supra), but in paragraph 5 thereof, it merely states that 'it has decided not to provide reservation promotion under the first proviso under Section 34 of the PD Act and has not issued instructions in this regard'. They then maintain that the provisions of the Statute confer right to the Government to decide whether such WPC 12189/15 11 reservations are to be given and that since no such reservations are provided to physically handicapped candidates or to any other communal reservation categories in the Government services, as far as promotion is concerned, the petitioner is not entitled to any such benefits. 14. I am afraid that at first blush, the stand of the Government in Ext.P13 cannot appeal to this Court legally because, as I have said above, the said order does not refer, in any manner, to either **Rajeev Kumar Gupta** (supra) or **Siddaraju** (supra). Without referring to any of these judgments, the Government has unilaterally taken a stand, presumably under the provisions of the proviso to Section 34 of the PD Act, 2016, that they will not offer reservation horizontally to any category including physically handicapped persons. 15. Of course, the non advertance to **Siddaraju** (supra) in Ext.P13 is inevitable because the said WPC 12189/15 12 judgment was delivered only in the year 2000,while this order was issued in the year 2019. However, the fact that the petitioner has approached this Court in the year 2015 - much before the PD Act, 2016 came into force - persuades me to the opinion that the Government must reconsider the matter particularly because, the petitioner argues that he was entitled to be horizontally promoted between 2007 and March 2017. 16. I do not propose to say anything on the merits of the rival contentions at this stage because, as said above, I am of the firm view that the Government must reconsider Ext.P13 and take a fresh decision, after hearing the petitioner also within a short time frame, because unless the impact of the afore two judgments are specifically examined, it would not be justified for them in issuing the said order in the manner it has been done presently. 17. I, however, hasten to add that I have not, WPC 12189/15 13 |in this judgment, dealt with the contentions of| |---| |the Government that they are entitled to invoke| |the proviso to Section 34 of the PD Act, 2016, to| |deny horizontal promotion to all categories of| |employees; but while doing so, they must keep in| |mind the rigour of <br>**Rajeev Kumar Gupta**<br>(supra)| |which has been reaffirmed by the Honourable| |Supreme Court in<br>**Siddaraju**<br>(supra).| |In the afore circumstances,<br>I order this writ| |petition<br>setting aside Ext.P13; with a resultant| |direction to the competent Authority of the| |Government of Kerala to hear the petitioner and| |the authorised officials of the SUPPLYCO, thus| |leading to an appropriate decision as to the| |impact of the PD Act, 1995 and PD Act, 2016,| |guided by the operational parameters and| |declarations in <br>**Rajeev Kumar Gupta**<br>(supra) and| |**Siddaraju**<br>(supra).| |The afore exercise shall be completed by the| |Government and resultant orders thereon shall be| WPC 12189/15 14 issued as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. I make it clear that the time frame fixed above is peremptory in nature and that the Government shall not - save in exceptional circumstances - approach this Court for extension of time, since I am aware that the petitioner is retiring by May 2022. ## **sd/-** RR ## **DEVAN RAMACHANDRAN** ## **JUDGE** ## **To be spoken to dated 30.06.2021** This matter is listed today at the request of the writ petitioner. 2. Sri.V.Vinay – learned counsel for the petitioner, made the request for this matter to be re-listed, on account of the judgment of the Hon'ble Supreme Court in **Leesamma Joseph v. State of Kerala** (Civil Appeal No.59 of 2021), which he WPC 12189/15 15 submitted was issued after I dictated the judgment in this matter. 3. I have examined the afore judgment of the Hon'ble Supreme Court, wherein, while confirming the judgment of a learned Division Bench of this Court, it has issued specific directions to the State of Kerala to implement the mandate of **Rajeev** **Kumar Gupta** (supra) and **Siddaraju** (supra), to provide for reservation in promotion in all posts, after identifying them, within a period of three months. 4. In the afore circumstances, I clarify that the afore directions in this judgment will be understood by the competent respondents as being that they shall consider and grant reservation to the petitioner to a suitable post in the SUPPLYCO within the time frame stipulated by the Hon'ble Supreme court in **Leesamma Joseph** (supra). Needless to say, anything contained in Ext.P24, contrary to the declarations in **Leesamma** WPC 12189/15 16 **Joseph** (supra), shall not operate to the detriment of the petitioner, while the afore exercise is completed. I also record the response of Smt.Molly Jacob - learned Standing Counsel for the SUPPLYCO, that Ext.P24, on account of the pendency of this writ petition, has not been implemented. Sd/- ## **DEVAN RAMACHANDRAN JUDGE** akv WPC 12189/15 17 ## APPENDIX OF WP(C) 12189/2015 ## PETITIONER'S ANNEXURE: P1 : COPY OF THE DISABILITY CERTIFICATE DTD.20.3.2015 ISSUED BY THE GENERAL HOSPITAL, THIRUVANANTHAPURAM. P2 : COPY OF THE LETTER DTD.30.10.2013 OF THE 4TH RESPONDENT ADDRESSED TO THE 2ND RESPONDENT. P3 : COPY OF THE OFFICE MEMORANDUM DTD.3.12.2013 OF THE 6TH RESPONDENT. P4 : COPY OF THE LETTER DTD.5.3.2014 OF THE 1ST RESPONDENT. P5 : COPY OF THE LETTER DTD.14.7.2014 OF THE 4TH RESPONDENT. P6 : COPY OF THE LETTER DTD.8.3.2015 ADDRESSED TO THE 4TH RESPONDENT. P7 : COPY OF THE REPRESENTATION DTD.30.4.2015 SUBMITTED BEFORE THE 3RD RESPONDENT. P8 : COPY OF THE COMPLAINT DTD.6.4.2015 FILED BEFORE THE 8TH RESPONDENT. EXHIBIT P9 THE TRUE COPY OF THE OFFICE MEMORANDUM DATED 29.12.2005 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P10 THE TRUE COPY OF THE OFFICER MEMORANDUM DATED 20.03.2014 AND 07.01.2015 ISSUED BY THE 6TH RESPONDENT. EXHIBIT P11 G.O.P NO.8/17/S.J.D DATED 06.05.2017 ISSUED BY 5TH RESPONDENT WPC 12189/15 ## 18 - EXHIBIT P12 THE TRUE COPY OF THE JUDGMENT DATED 15.06.2017 IN W.A.NO.388 OF 2017. - EXHIBIT P13 THE TRUE COPY OF THE ORDER DATED 10.04.2019 PASSED BY THE FOURTH RESPONDENT. - EXHIBIT P14 THE TRUE COPY OF THE ORDER DATED 06.12.2017 IN CONMT.PET.C.NO.856/2017 IN C.A.NO.9096/2013 OF THE HON'BLE SUPREME COURT - EXHIBIT P15 THE TRUE COPY OF THE O.M DATED 15.01.2018 ISSUED BY THE 6TH RESPONDENT. - EXHIBIT P16 THE TRUE COPY OF THE INTERIM ORDER DATED 05.04.2019 IN WPC NO.33472/2017 - EXHIBIT P17 THE TRUE COPY OF THE BOARD OF DIRECTORS DECISION AS PER AGENDA NO.10/425 OF THE 425TH MEETING DATED 14.05.2018. - EXHIBIT P18 THE TRUE COPY OF THE RELEVANT PAGE OF THE SENIORITY LIST OF JUNIOR ASSISTANT PUBLISHED ON 02.09.2019. - EXHIBIT P19 TRUE COPY OF THE INTERIM ORDER DATED 27.08.2019 IN WPC 23136/2019 - Exhibit P20 THE TRUE COPY OF THE - G.O(P)NO.8/2010/SWD DATED 01.02.2010. - Exhibit P21 THE TRUE COPY OF THE LETTER NO.751/C3/2014/F&CSD DATED 20.06.2014. - Exhibit P22 THE TRUE COPY OF THE LETTER DATED 02.05.2014 ISSUED BY THE 1ST RESPONDENT. - Exhibit P23 THE TRUE COPY OF THE LETTER DATED 02.06.2018 ISSUED BY THE 5TH RESPONDENT WPC 12189/15 19 TO THE 3RD RESPONDENT. Exhibit P24 THE TRUE COPY OF THE DECISION TAKEN IN 382ND B.O.D MEETING BY THE 9TH RESPONDENT. Exhibit P25 THE TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER. - RESPONDENTS' EXTS: Exhibit R2(A) PHOTO COPY OF THE RELEVANT PORTION OF THE KERALA STATE CIVIL SUPPLIES CORPORATION RECRUITMENT/PROMOTION RULES 1997. - Exhibit R2(B) PHOTO COPY OF THE RELEVANT PORTION OF THE LIST OF QUALIFIED CANDIDATES IN THE EXAMINATION HELD ON 01.07.2007 FOR APPOINTMENT BY TRANSFER AS JUNIOR ASSISTANT. Exhibit R2(C) PHOTO COPY OF THE ORDER NO.D10-143/06 DATED 16.02.2010 PROMOTING THE PETITIONER ALONG WITH OTHERS AS JUNIOR ASSISTANT. - Exhibit R2(D) PHOTO COPY OF THE ORDER NO.D10-22542/19 DATED 03.12.2019 PROMOTING THE PETITIONER AS SENIOR ASSISTANT GR.II. Exhibit R2(E) PHOTO COPY OF THE ORDER NO.D10-1220/19 DATED 14.01.2021 PROMOTING THE PETITIONER AS SENIOR ASSISTANT GR.I.