Kerala State Electricity Board Ltd. v. Sumathy B and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. WEDNESDAY, THE 29[TH] DAY OF JUNE 2022 / 8TH ASHADHA, 1944 WA NO. 110 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 576/2018 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 AND 2:** 1 KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004. 2 CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VIDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004. BY ADV C.JOSEPH ANTONY ## **RESPONDENTS/PETITINERS & 3RD RESPONDENT:** 1 SUMATHY.B, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB DIVISION, THALASSERY-670 101, RESIDING AT VLAPARAMBIL HOUSE, P.O.PUDUPARIYARAM, PALAKKAD DISTRICT-678001. 2 RAMESAN.M., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL REGIONAL I.T UNIT, KOZHIKODE, RESIDING AT MUNDAPPURATH HOUSE, P.O.PARANNUR, NARIKUNI, KOZHIKODE DISTRICT-673 585. 3 RADHA.N, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE, THRISSUR DISTRICT-680004, RESIDING AT NARANGAVALAPPIL, P.O.VELUR, THRISSUR DISTRICT-680 601. WA No. 110 of 2021 2 4 SURESHNATH P.S., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE, THRISSUR-680 121, RESIDING AT PAYYAPPILLY HOUSE, P.O.ERAVATHUR, THRISSUR DISTRICT-680 734. 5 HARIHARASUBRAHMANIAN.R, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB DIVISION, PALAKKAD DISTRICT,RESIDING AT MANJITHOYA, PALAKKAD DISTRICT-678001. 6 AJITHA T.K., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., REGIONAL AUDIT OFFICE, PERUMBAVOOR-683 542, RESIDING AT VELLOPATTIL HOUSE, P.O PAZHAMTHOTTAM, ERNAKULAM DISTRICT-683 565. 7 SUBASH M.D., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., TRANSMISSION CIRCLE, VYDHYUTHI BHAVANAM, THRISSUR-680004, RESIDING AT MAMPILLY HOUSE, P.O., THALASSERY, KANNUR DISTRICT-670671. 8 SATHIAN P.V., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., GENERATION CIRCLE, VYDHUTHI BHAVANAM, THRISSUR-680004, RESIDING AT PERAMARATH, P.O.KANJANI, THRISSUR DISTRICT-680612. 9 BINDU T., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE, PATHANAMTHITTA, RESIDING AT PUTHENVILA, ARUNAPPALAM P.O., KONNI, PATHANAMTHITTA DISTRICT-689691. 10 PRASANNAKUMARI K.M., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., OFFICE OF THE DIRECTOR, TRANSMISSION AND SYSTEM OPERATION, WA No. 110 of 2021 3 VYDHYUTHI BHAVAN, THIRUVANANTHAPURAM-695004, RESIDING AT CHERUKARA HOUSE, P.O.THIRUMALA, THIRUVANANTHAPURAM-695006. 11 JOTHY B., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB DIVISION, THATHAMANGALAM, RESIDING AT PRANASSERY HOUSE, PALAKKAD DISTRICT-678001. 12 SAJEEVAN K.M., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, KANHANGAD, RESIDING AT LAKSHMY NIVAS, PILICODE P.O., KASARAGOD DISTRICT-671315. 13* LEKHA V.NAIR, (DELETED) SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., OFFICE OF THE CHIEF ENGINEER (HRM), THIRUVANANTHAPURAM-695004, RESIDING AT GOKULAM HOUSE, KANJIRAMPARA P.O., THIRUVANANTHAPURAM DISTRICT-695030. 14* DEEPA K.R., (DELETED) SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, KOTTARIDA, P.O.KOTTUR, KOZHIKODE-673614, RESIDING AT PRANAVAM, NADUVANNUR, KOZHIKODE DISTRICT-673614. (R13 AND R14 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DTD. 21/01/2021 IN WA NO.110/2021.) 15 PRADEEP K.B., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, THRISSUR WEST, THRISSUR DISTRICT-680001, RESIDING AT KADAVILPARAMBIL, KUNDALIYUR P.O., THRISSUR DISTRICT-680616. 16 ELSAMMA MATHEW, SENIOR ASSISTANT, WA No. 110 of 2021 4 KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION OFFICE, MOOLAMATTOM, IDUKKI DISTRICT-685 589, RESIDING AT PINAKAT HOUSE, P.O.KODIYATHUR, IDUKKI DISTRICT-685 590. 17 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. *ADDL.R18 AND R19 IMPLEADED. ADDL.R18 SAJI T.S., SENIOR ASSISTANT,EMPLOYEE CODE:1058880, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICITY SECTION,KALLOOKKAD, RESIDING AT THOTTATHINATTU HOUSE, KAVAKAD P.O.,PIN-686 697. ADDL.R19 DINESHAN E., SENIOR ASSISTANT,EMPLOYEE CODE:1070161, KERALA STATE ELECTRICITY BOARD LTD., THUNDIYIL SECTION,PERAVOOR P.O., IRRITY DIVISION, RESIDING AT V.V.HOUSE,VATTOLI, CHITTARIPARAMBU P.O.,KANNUR,PIN-670 650. *ADDITIONAL R18 AND ADDITIONAL R19 IMPLEADED AS PER ORDER DATED 16/03/2022 IN I.A.NO.2/2021 IN WA 110/2021. *ADDL.R20 IMPLEADED. ADDL.R20: TAGORE L.V. (1044086), SENIOR ASSISTANT, OFFICE OF CHIEF INTERNAL AUDITOR, VAIDHUTHI BHAVAN,PATTOM, THIRUVANANTHAPURAM, S/O.A.P.LAXMANAN,AGED 55 YEARS, RESIDING AT SREEVALSAM,UCHAKKADA, VENGANNOOR P.O.AND VILLAGE, THIRUVANANTHAPURAM TALUK AND DISTRICT. *ADDITIONAL R20 IS IMPLEADED AS PER ORDER DATED WA No. 110 of 2021 5 16/03/2022 IN I.A.1/2022 IN WA 110/2021. BY ADVS. SRI.P.M.PAREETH T.T.RAKESH P.C.HARIDAS ## **OTHER PRESENT:** GOVERNMENT PLEADER SRI.UNNIKRISHNA KAIMAL **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA No. 110 of 2021 6 ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ------------------------------------------------------------------** WA No.110 of 2021 -------------------------------------------Dated this the 29[th] day of June 2022 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J. The Kerala State Electricity Board (KSEB) and its Chief Engineer are the appellants before us, aggrieved by the judgment dated 21.8.2020 of the learned single Judge in WP(C)No.576 of 2018. 2. The brief facts necessary for the disposal of the writ appeal are as follows:- The writ petitioners, the respondents herein are working as Senior Assistants under the Electricity Board. They are all persons with loco motor disability ranging from 40% to 55%. They had approached this Court through the writ petition aforesaid in the year 2018 contending that the appellant-Board had not complied with the provisions of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 r/w the provisions of the Long Term Settlement entered into WA No. 110 of 2021 7 between the Board and its employees in 2007 and the Board Orders issued in connection therewith, in the matter of reserving 3% of the post of Senior Superintendent for persons with disabilities. It was their contention that had the Board reserved 3% of the posts of Senior Superintendents for promotion by person with disabilities, then they would have been entitled to promotion as Senior Superintendent. 3. It is relevant to note that in the pleadings in the writ petition there was no indication as to the date from which any of the respondents would have been entitled to the post of Senior Superintendent in their capacity as persons with disability. The relief sought for in the writ petition however was for a writ of certiorari calling for the records leading to Ext.P4 Board order and to quash clause 7 (4) and (5) of the said Board Order to the extent it contemplated that the benefit of reservation would be admissible only to eligible physically handicapped candidates with effect from the date of settlement namely 19.3.2007, and that physically handicapped employees who had availed the benefits once would not be eligible for promotion under the scheme. 4. Through a counter affidavit filed on behalf of the Board it was stated that the Board had already taken steps to implement the provisions of the 1995 Act through the terms of the WA No. 110 of 2021 8 Long Term Settlement of 2007 r/w the Board Order dated 12.05.2010 (Ext.P4). Thereafter, however, consequent to the decision of the Supreme Court in **Union of India v. National Federation of Blind and others** [(2013) 10 SCC 772], the promotion granted to Senior Assistants to the cadre of Senior Superintendent under the 3% quota was cancelled. Later on, based on a direction issued by this Court in WP(C)No.36707 of 2010, the 3% reservation was applied in the case of promotion of Senior Assistants to the cadre of Senior Superintendents. Consequent to the said promotion, a list of 54 persons with disability was published for filling the vacancies then available under the 3% quota. It was stated that further processing of the said list was kept on hold in view of the pendency of other writ petition and that steps have since been taken to process the list to effect promotion to the remaining vacancies under the 3% quota. 5. The learned single Judge, who considered the matter found that inasmuch as the Board had already issued orders on the basis of the 1995 Act r/w the Long Term Settlement of 2007, the provisions under the 2016 Act could not be pressed into service merely because the latter Act had come into force. The learned judge found that the Board was obliged to honor the terms in the Long Term Settlement of 2007 r/w the Board Order of 2010 WA No. 110 of 2021 9 and reserve 3% of the vacancies in the post of Senior Superintendent and consider the case of the petitioners also against the said 3% quota from the list that had already been prepared by them. 6. In the appeal before us, it is the stand of the appellantBoard that the Settlement of 2007 has since been superceded by the 2011 Settlement and subsequent Settlements thereafter. Reference was also made to the Rights of the Persons with Disabilities Act, 2016, section 34 of which clearly states that every appropriate Government shall appoint in every establishment not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with bench mark disabilities. According to the appellant, the total number of vacancies in the cadre strength in each group of posts clearly indicates that the mandate of the section is to calculate the number of vacancies on the basis of the cadre strength. The judgment of the learned single Judge is impugned to the extent it directs the filling up of vacancies in the promoted post by applying the prescribed percentage to vacancies as and when arising as against applying the prescribed percentage against the cadre strength. ## 7. When this matter came up for consideration before a WA No. 110 of 2021 10 Division Bench of this Court, the said court by an interim order dated 18.03.2011 directed as follows:- “ Sri.Raju Joseph, learned senior counsel appearing for the appellants would submit that the new provision made as per Sec.34(1) of the 2016 Act specifically mandates that the reservation is to be applied in the total number of vacancies in the cadre strength and that therefore, in effect, the reservation is to be applied as against the cadre strength, which in the instant case for the post of Senior Superintendent is 1142, and 4% thereof would come to 46 and reservation can be made only to that extent. That, in view of the decision as per Ext.R-1(a) dated 19.2.2021 and previous orders to effect reservation even in the promotion post of Senior Superintendent can be made only to the limited extent of 4% of cadre strength, etc. 2. Sri.P.M.Pareeth, learned counsel appearing for the contesting respondents herein/writ petitioners would point out that without prejudice to the contentions of the writ petitioners to be raised and decided in the main Writ Appeal, they are now prepared to accept atleast the present stand taken by the appellant Board so that atleast for the time being appointments by way of reservation of disabled personnel are made in the promotion post of Senior Superintendent, reckoned atleast on the basis of 4% of the cadre strength. 3. Accordingly, it is ordered that without prejudice to the contentions of both sides, the appellant Board may take necessary steps to ensure that appointments by way of promotion on the basis of reservation of disabled personnel are made in accordance with Sec.34(1) of the 2016 Act, and such reservation criteria may be reckoned on the basis of 4% of the cadre strength in the promotion post of Senior Superintendent, and subject to the other norms and requirements in Sec.34 and the other provisions of the 2016 Act. Orders in that regard may be duly rendered by the competent authority of the appellant Board WA No. 110 of 2021 11 within 2 months from the date of receipt of a copy of this order. 4. The respondent State of Kerala and the writ petitioners may file their counter affidavits in this appeal if any, well before the next posting date. List the case on 5.7.2021. Hand over to both sides. “ 8. It would appear that in the exercise carried out by the Board pursuant to the directions in the interim order extracted above all the party respondents who were the writ petitioners, except respondents 13 and 14 who expired during the pendency of the proceedings, and respondents 15 and 16, were promoted. It is stated that respondents 15 and 16 would also be considered as and when their turn arises based on the computation of vacancies done by the Board. 9. Taking note of the said development and finding that in the computation done by the appellant-Board pursuant to the directions in the interim order dated 18.3.2021, which in turn is based on the provisions of Section 34(1) of the 2016 Act, we feel that we need not dilate any further on the issue. We make the said interim order absolute and direct the Board to consider the case of respondents 15 and 16 in their turn. 10. Before parting with this case, we must observe that the judgment of the learned single Judge was based on the provisions WA No. 110 of 2021 12 of a Board Order as also a Long Term Settlement which had ceased to be in existence at the time when the writ petition was considered and the judgment rendered. It is also significant that the writ petitioners had approached this Court only in 2018, when it is their stated case that the vacancies to which they could have been accommodated in terms of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 /Rights of the Persons with Disabilities Act, 2016, arose as early as in 2010. The judgment impugned in this appeal could not have been sustained in view of the said facts. At any rate, in the light of the view that we have taken as above, we do not deem it necessary to deal with the issue as to whether the prescribed ratio under the Act has to be applied to the vacancies arising from time to time in the cadre or whether it has to be applied to the cadre strength as a whole. The writ petition is disposed as above. ## **Sd/- A.K.JAYASANKARAN NAMBIAR, JUDGE** **Sd/-MOHAMMED NIAS C.P., JUDGE** dlk 27.6.2022 WA No. 110 of 2021 13 ## **APPENDIX OF WA NO.110 OF 2021** PETITIONERS ANNEXURES : NIL RESPONDENTS ANNEXURES Annexure R1(a) TRUE PHOTOCOPY OF THE ORDER NO.EB3(a)/SA T0 SS/PROM/4% PH QUOTA/2020-21 DATED 19.02.2021