Madhu S v Travancore Devaswom Board (and connected petitions in WP(C) Nos. 20301 of 2022, 4585 of 2022 and 17626 of 2022)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945 WP(C) NO. 20301 OF 2022** ## **PETITIONER/S:** MADHU S, AGED 51 YEARS S/O. SIVASANKARA PILLAI, AGED 51 YEARS, RESIDING AT KARUNILAM, THAKAZHY P.O., ALAPPUZHA - 688 562 (PRESENTLY WORKING AS WATCHER AT THE KAMAPURAM DEVASWOM, THAKAZHY SUB GROUP, AMBALAPUZHA UNDER TRAVANCORE DEVASWOM BOARD) BY ADVS. SHAMEENA SALAHUDHEEN O.M.SHALINA T.V.VINU JISEMOL THOMAS ## **RESPONDENT/S:** 1 TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695 003 REPRESENTED BY ITS SECRETARY 2 COMMISSIONER, OFFICE OF THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695 003 3 DEPUTY DEVASWOM COMMISSIONER, OFFICE OF THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM - 695 003 4 KERALA DEVASWOM RECRUITMENT BOARD TRAVANCORE DEVASWOM BOARD BUILDING, M. G. ROAD, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM - 695 001 REPRESENTED BY ITS SECRETARY 5 SECRETARY TO THE GOVERNMENT, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001 6 SECRETARY TO THE GOVERNMENT, DEPARTMENT OF SOCIAL JUSTICE, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 7 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 BY ADV Nandagopal Nambiar V.V THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2023, ALONG WITH WP(C).4585/2022, 17626/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 20301 OF 2022 and conctd. Case** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945** ## **WP(C) NO. 4585 OF 2022** ## **PETITIONER/S:** 1 MOHANKUMAR T.N AGED 53 YEARS S/O. NARAYANAN NAIR, PRESENTLY WORKING AS PEON (DUTY ARRANGEMENT BASIS), OFFICE OF THE DEPUTY DEVASWOM COMMISSIONER, PATHANAMTHITTA, RESIDING AT AMBADIYIL, ELAKOLLOOR P.O., KONNI, PATHANAMTHITTA-689 691 2 P.R.SANOJ AGED 37 YEARS S/O.P.N.RAJAN, PRESENTLY WORKING IN PANJAVADYAM, KOLLAM GROUP, UMAYANELLUR DEVASWOM, RESIDING AT PATHIKKAPARMABIL, NJHEEZHUR P.O., KOTTAYAM-686 612 3 VINITHA.M., AGED 38 YEARS D/O. MOHANDAS.K., PRESENTLY WORKING AS KAZHAKAM, PATHIRAAMKULANGARA SUB GROUP, HARIPPAD, VILANJAAL DEVASWOM, RESIDING AT RADHEYAM, PACHA, CHEKKIDIKODU.P.O., EDATHUA-689 573 BY ADVS. SHAMEENA SALAHUDHEEN T.V.VINU ## **RESPONDENT/S:** 1 STATE OF KERALA REP BY SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 TRAVANCORE DEVASWOM BOARD, REP BY ITS SECRETARY, NANTHANCODE P.O., THIRUVANANTHAPURAM-695 003 3 THE SECRETARY, TRAVANCORE DEVASWOM BOARD, NANTHANCODE P.O., THIRUVANANTHAPURAM-695 003 - 4 DEVASWOM COMMISSIONER, TRAVANCORE DEVSWOM BOARD, OFFICE OF THE DEVASWOM COMMISSIONER, NANTHANCODE P.O., THIRUVANANTHAPURAM-695 003 **WP(C) NO. 20301 OF 2022 and conctd. Case** **3** - 5 ASSISTANT DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, OFFICE OF THE DEVASWOM COMMISSIONER, NANTHANCODE P.O., THIRUVANANTHAPURAM-695 003 - 6 DEPUTY DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, ARANMULA GROUP, ERUMAKKAD P.O., PATHANAMTHITTA-689 532 - 7 PRATHYUSH.M., MADATHILLATH HOUSE, 21 NADAL, KANNUR (TALUK) KANNUR-670 663 - 8 SREEKANTH SREEDHARAN, MANAVALATH HOUSE, 6/507, CHERUVELIKUNNU, KUNNATHUNAD (TALUK), ERNAKULAM-683 547 - 9 SARATH.P.S. SREEVALSAM, 520, NELLIVILA, THIRUVANANTHAPURAM-695 523 - 10 VISHNU.S.PILLAI LAKSHMI NIVAS, THACHAPPALLY, MANJAMALA, THIRUVANANTHAPURAM-695 313 - 11 MEERA P.A., POKKATHUPRAMBIL, KOOTTUKKAD, VADAKKUMPURAM P.O., NORTH PARAVUR, ERNAKULAM-683 521 - 12 ARJUN.R. KAUSTHUBHAM HOUSE, 261, KEEZHARA, KANNUR (TALUK)-670 301 - 13 AKHIL.P., VADAKE CHERIYIL, KIZHAKKEKKARA THEVALAKKARA, KUNNATHOOR (TALUK), KOLLAM-690 524 - 14 DEVIKA .S. - NEAR MARTHOMA CHURCH, RAIL VIEW, RAILWAY STATION VARKALA, VARKALA ( TALUK), THIRUVANANTHAPURAM-695 141 - 15 NITHIN.U.B., ULLATTIL HOUSE, CHENTRAPPINNI P.O., KODUNGALLUR (TALUK), THRISSUR-680 687 - 16 SAJAN.R. KATTUVILAKATHUVEEDU, OORUPOIKA P.O., ATTINGAL, CHIRAYINKEEZHU (TALUK), THIRUVANANTHAPURAM-695 104 - 17 ASWATHY.P.C. PULIKKA VEETIL HOUSE, PALIEKKARA, MUKUNDAPURAM (TALUK), THRISSUR-680 301 - 18 VISHAK.T.R. VISHNU VILASAM, THEVALAPPURAM, KOTTARAKKARA (TALUK), KOLLAM6981 507 **WP(C) NO. 20301 OF 2022 and conctd. Case** **4** - 19 BIMAL BENJAMIN, MADATHIPARAMBIL HOUSE, POTTA, CHALAKKUDY (TALUK), THRISSUR-680 722 - 20 MAHESH.M., MAHESH BHAVANAM, PUNNAKKULAM , K.S PURAM P.O., KARUNAGAPPALLY (TALUK), KOLLAM-690 44 - 21 DEEPAK.T.N., PALLICHIRA, PALLATHURUTHY, PAZHAVEEDU P.O., AMBALAPPUZHA (TALUK), ALAPPUZHA-688 009 - 22 BINEESH.P.P., PUTHENPURAYIL, 396, WARD NO.16, KUNNURAMKKARA, VADAKARA (TALUK), KOZHIKODE-673 308 - 23 VISHNU PRASAD.V.K., VILAKUNI HOUSE, 141, THIKKODI, KOILANDY (TALUK), KOZHIKODE-673 529 - 24 DHANYA.K.V. KONDARAMVALAPPIL HOUSE, KECHERY, THALAPPILLY (TALUK), THRISSUR680 501 - 25 JITHIN DAS.A.Y. ELAYIDATH HOUSE, CHENGAMANADU, PALAPRASSERY, ALUVA (TALUK), ERNAKULAM-683 578 - 26 ANANTHA NATH .S. ANANTHA NIVAS, 134, MULAVANA, KOLLAM (TALUK)-691 503 - 27 ARAVIND.S. URUMBIL , 289, POONJAR THEKKEKARA, MEENACHIL (TALUK), KOTTAYAM686 582 - 28 ASWIN ARAVIND AISWARYA , XV 352, KOLLARUKANDIYIL, THAMARASSERY (TALUK), KOZHIKODE-673 573 - 29 ARUN.T.M., MAVINCHUVATTIL HOUSE, 13/249, KADEBHAGAM, PALLURUTHY, KOCHI (TALUK), ERNAKULAM-682 006 - 30 ARUN VIJAY TC 49/738-2, KARTHIKA NAGAR, THIRUVANANTHAPURAM-695 009 - 31 ARUN.T.U. THERAPILLY HOUSE, V.R.PURAM P.O., CHALAKUDY (TALUK), THRISSUR680 722 **WP(C) NO. 20301 OF 2022 and conctd. Case** **5** - 32 VAISAKH KRISHNA S.S., S.K.NIVAS, 85, AYIRAKUZHY, CHITHARA, KOTTARAKKAR (TALUK), KOLLAM-691 559 - 33 LAJEESH.V. ELAYIL VEEDU, 9/714, MENAMAKULAM, CHITTATTUMUKK, CHIRAYINKEEZHU (TALUK), THIRUVANANTHAPURAM-695 301 - 34 AMAL RAJ.M.R. CHERUVATH, KOOTHALI, KOYILANDY (TALUK), KOZHIKODE-673 525 - 35 VIMAL.K., KARUVARIL HOUSE,MANNANUR POST, OTTAPALAM (TALUK), PALAKKAD-679 523 - 36 RIKHIL .K.RAJ.K.P., KAVUMPURATH, ANNASSERY, KOZHIKODE (TALUK)-673 317 - 37 AKHIL.S. PRATHEEKSHA, PALLIMUKKU, KADAKKAVOOR P.O., CHIRAYINKEEZHU (TALUK), THIRUVANANTHAPURAM-695 306 38 SREELAKSHMI .S. KUZHIKANDATHIL HOUSE, THIRUMARADI, MUVATTUPUZHA (TALUK), ERNAKULAM-686 662 - 39 SETHULAKSHMI.S. SWARNAMMA SADANAM, 425 KARAKKAD, CHENGANNUR (TALUK), ALAPPUZHA689 504 - 40 SUDHEESH.T.K. THOPPIL HOUSE, 89, VALAYANCHIRANGARA, KUNNATHUNADU TALUK, ERNAKULAM-683 556 - 41 SHAMNA.P.T., VAISHNAVAM, THAMPI ROAD, BEYPORE P.O., KOZHIKODE TALUK-673 015 - 42 ULLAS.S.K. MANGALATTHU VEEDU, 10/137, VILLOOR, VETTIKAVALA P.O., KOTTARAKKARA TALUK, KOLLAM-691 538 43 ARYA.P.R. SREE NANDANAM, MURIYATHOTTAM, KARAKONAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695 504 44 JAYALEKSHMI.P.S., MOOLAVILA PUTHENVEEDU, SWAMIMUKKU, ATTINGAL, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695 101 - 45 KARTHIKA T. SOMARAJAN, THALIRATH HOUSE, 30/10, MUTTITHADI P.O., MUKUANDAPURAM TALUK, THRISSUR-680 317 **WP(C) NO. 20301 OF 2022 and conctd. Case** **6** - 46 ARUN DAS .V. VATTAPPARAYIL, THALAYAZHAM, VAIKOM TALUK, KOTTAYAM-686 607 - 47 BINOY.C.VIJAYAN, CHOOLAPARAMBIL HOUSE, NEAR ASRAMAM SCHOOL, VAIKOM P.O., VAIKOM TALUK, KOTTAYAM-686 141 - 48 GOKUL DEV.C.S. GOKUL NIVAS, VAYYETTU, VENJARAMOODU P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM-695 607 - 49 MEENA .M.S. SEETHA VILASAM, ANAD, ANAD P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM-695 541 - 50 ASWIN SREEDHAR.M., MANNYATH HOUSE, PERUL SOUTH, PAYYANNUR TALUK, KANNUR-670 306 - 51 RAJASREE.V. RAHUL NIVAS, 73/2572, PIUS NAGAR, PACHALAM, KANAYANNUR TALUK, ERNAKULAM-682 012 - 52 ASHA DEVI.A.S., PANNUVELIVELI, 448/19, KALAVOOR, AMBALAPPUZHA TALUK, ALAPPUZHA688 522 - 53 AJAY.V. SREEVILASAM, 149, SANKARAMANGALAM, PATTAMBI TALUK, PALAKKAD-679 303 - 54 ANJANA M.T. MADATHIL THODI, VALAYANAD, KOMMERI P.O., KOZHIKODE-673 007 - 55 DEVIKA .P., PRASANTHI , 521, KANNANKARA, CHERTHALA TALUK, ALAPPUZHA-688 527 - 56 AJEESH.T.S. BANGLAVIL VEEDU, PALAYAM, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM-695 601 - 57 SRUTHYLAKSHMI.P., LAKSHMI VIHAR, 337, VAYALA P.O., MEENACHIL TALUK, KOTTAYAM-686 587 - 58 JAYADEEP .P.J. SOUDA, VENJARAMMOODU, NEDUMANGAD TALUK, THIRUVANANTHAPURAM-695 607 **WP(C) NO. 20301 OF 2022 and conctd. Case** **7** 59 ANJU.V., KALYANI NILAYAM, JNRA 61, PEROORKADA P.O., THIRUVANANTHAPURAM695 005 60 LAYA.T.K. THULLANGARA HOUSE, VELAPPAYA, THRISSUR-680 596 BY ADV Biju THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2023, ALONG WITH WP(C).20301/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 20301 OF 2022 and conctd. Case** **8** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945 WP(C) NO. 17626 OF 2022** ## **PETITIONER/S:** |1|SUMOD,| |---|---| ||AGED 43 YEARS| ||S/O. K. A. RAMANAN, RESIDING AT VATTAPARAMBIL HOUSE, PANAVALLY| ||P.O., THYKATTUSERIL, CHERTHALA, ALAPPUZHA - 688 526 WORKING AS| ||SHANTHI, THREECHATTUKULAM, VAIKOM.| |2|HARI PRASAD| ||S/O. SIVANKUTTI NAIR, AGED 41 YEARS, RESIDING AT SHEEJA BHAVAN,| ||PALATHARA, KERALADHITHYAPURAM, POWDIKONAM, THIRUVANANTHAPURAM -| ||695 588 WORKING AS PATHRAMTHEPU, THAKAZHY, AMBALAPUZHA.| |3|ARUN S. KUMAR| ||S/O. SUDHAKARAN, AGED 39 YEARS, RESIDING AT SOWPARNIKA,| ||ELAYAMPARAMBU, THEKUMBHAGAM, KADAKKAVUR, CHIRAYAMKEEZHU,| ||THIRUVANANTHAPURAM, PIN 695 306 - WORKING AS KAZHAKKOM,| ||KELESWARAM, VARKALA.| |4|VISHNUKUMAR B.| ||S/O. BALACHANDRAN NAIR, AGED 33 YEARS, RESIDING AT| ||VARIYAVETTILMELEATHIL, MANAKALA P.O., ADOORPIN- 691 551,| ||WORKING AS WATCHER, ADOOR, KOTTARAKARA.| |5|SREERAJ T. K| ||S/O. KRISHNAN NAMBOOTHIRI, AGED 52 YEARS, RESIDING AT| ||THANAMCHERIYILLLLOM, ALA P.O., CHEGANNUR, ALAPPUZHA - 689 126,| ||WORKING AS SHANTHI, PADIGATTUMCHERI, PULIYOOR, ARANMULA.| |6|SANTHOSHKUMAR S. R.| ||S/O. SREEDHARAN NAIR, AGED 52 YEARS, RESIDING AT| ||RUGHMINIBHAVAN, MULLOOR P.O., VIZHINJAM THIRUVANANTHAPURAM -| ||695 521 WORKING AS KAZHAKOM, THREEPALAYUR, CHENGANNUR,| ||NEYATTINKARA.| |7|*SREENIVASAN P.D.| ||S/O. DAMODHARAN, AGED 49 YEARS, RESIDING AT PADINJARAEKAVANAL,| ||PADANADU WEST, CHENGANNUR P.O., ALAPPUZHA - 689 506 WORKING AS| ||WATCHER, THULISHALAKURATTI, THIRUVALLA. * 7TH PETITIONER IS| ||DELETED AS PER ORDER DATED 15.06.2023 IN I.A.3/2023.| |8|CHANDRA SEKHARAN PILLAI J.| ||S/O. JANARDHANAN PILLAI, AGED 46 YEARS, RESIDING AT| ||MULLASSERILVEEDU, KUREEPUZHA, KAVANADU P.O., KOLLAM-691 0033| ||WORKING AS WATCHER, SREENARAYANAPURAM DEVASWOM, KILIKOLLOOR SUB| ||GROUP, KOLLAM GROUP.| ||BY ADVS.| ||SHAMEENA SALAHUDHEEN| ||O.M.SHALINA| ||T.V.VINU| **WP(C) NO. 20301 OF 2022 and conctd. Case** **9** ## **RESPONDENT/S:** |1|TRAVANCORE DEVASWOM BOARD,| |---|---| ||NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAMPIN-695 003| ||REPRESENTED BY ITS SECRETARY.| |2|KERALA DEVASWOM RECRUITMENT BOARD,| ||TRAVANCORE DEVASWOM BOARD BUILDING, M. G. ROAD, AYURVEDA| ||COLLEGE JUNCTION, THIRUVANANTHAPURAM - 695 001 REPRESENTED BY| ||ITS SECRETARY.| |3|SECRETARY TO GOVERNMENT,| ||DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM| ||- 695 0012 .| |4|SECRETARY TO THE GOVERNMENT,| ||DEPARTMENT OF SOCIAL JUSTICE, GOVERNMENT OF KERALA, GOVERNMENT| ||SECRETARIAT, THIRUVANANTHAPURAM- 695 001.| |5|STATE OF KERALA,| ||REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,| ||THIRUVANANTHAPURAM-695 001.| ||BY ADVS.| ||SRI.C.K.PAVITHRAN, SC, TDB| ||Nandagopal Nambiar V.V| |THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON|| |04.07.2023, ALONG WITH WP(C).20301/2022 AND CONNECTED CASES, THE COURT ON|| |THE SAME DAY DELIVERED THE FOLLOWING:|| **WP(C) NO. 20301 OF 2022 and conctd. Case** **10** ## **JUDGMENT** This order of mine shall dispose of three writ petitions W.P.(C) No.20301 of 2022, 4585 of 2022 and 17626 of 2022 filed by persons working on different posts ie., Group D posts in the Devaswom Board. All the petitioners are suffering from benchmark disability but were appointed as Group -D employee under the general category. The grievance in brief originally was that as per the provisions of the Rights of persons with disabilities Act 1995 amended in 2016 whereby the reservation of the posts was increased from 3% to 4%. The Devaswom Board did not keep any reservation either in the original appointments or for promotions much less transfer on promotions. 2. One of the petitioner Sri.Madhu S had for claiming such relief approached this Court vide W.P.(C) No.7802 of 2016. This Court in the judgment dated 10.1.2017 noticed the contentions and rival contentions of the parties with regard to the vertical promotion as enshrined under Article 16(1) and 16(4) of the Constitution of India viz-a-viz the Scheduled caste and backward class and as well as the horizontal promotion viz-a-viz the persons with physical disabilities (PWD). Considering the predicament of the petitioner and rejecting the argument of the respondents that there can be a promotion by way of transfer by identifying the post under the **WP(C) NO. 20301 OF 2022 and conctd. Case** **11** provisions of the Act as well as the backlog, issued slew of following directions: **10.** In the above circumstances, the writ petition is disposed of with the following directions: (1). The respondent Board shall take emergent steps to see that the posts in the Devaswom Board, which can be reserved for the persons with disability, are got identified under Section 32 of the PWD, by the Government. (2). Thereafter the Board shall take urgent steps for appointment of physically handicapped candidates under 3% quota, reserved for them in the identified posts. (3). While doing so the handicapped employees working under the Board eligible for appointment by transfer/promotion shall also be considered against the vacancies in identified posts in the 3% quota. (4). In case the post of LD Clerk/Sub Group Officer is identified, the case of the petitioner shall also be considered along with the claims of other physically handicapped low paid employees for appointment by transfer in the quota earmarked for the low paid employees. This shall be done within a period of 'four months' from the date of receipt of copy of the judgment. 3. The respondents came out with a Government order dated 22.1.2022 whereby the Board issued an order directing to prepare a list persons belonging to the PWD for vacancies with effect from 22.10.2021. 4. Counsel for the petitioners submitted that the respondents while issuing this notification in purported compliance of the directions of this Court did not consider the backlog and despite that came out with a further notification dated 18.6.2022 inviting applications for direct recruitment by keeping reservation **WP(C) NO. 20301 OF 2022 and conctd. Case** **12** with regard to the persons under PWD. It was further contended that on 23.6.2022 this Court had passed an interim order refraining the respondents for making the appointments pursuant to the notification dated 18.6.2022, Ext.P9 ( W.P.(C) No.20301 of 2022). When the matter came up for hearing on 7.12.2022 counsel for the Devaswom Board made a submission before the Court that though it had recognized in the order dated 10.3.1998 issued by the Secretary to the extent restricting the benefits due to PWD with effect from 22.9.2021 (order dated 22.1.2022 wrongly written as 10.3.1998) on the basis of the legal opinion it was decided to fill up the backlogs in terms of the provisions of 1995 and 2016 Act. With such observation, the order Ext.P6 cannot be permitted to sustain and the Board should be directed to reconsider the issue with regard to the backlog and for the purpose of giving benefits to the persons with disability like transfer on promotion etc. Apprehending the further fresh recruitment vide notification dated 18.6.2022, the challenge was laid whereby this Court granted the interim order. 5. Learned counsel for the Devaswom Board did not deny the fact of having obtained the legal opinion and for revisiting the issue by considering the backlogs in terms of the provisions of 1995 and 2016 Act. Ext.P6 thus was liable to be revisited but submitted that under the garb of such plea, petitioners cannot lay challenge to the notification dated 18.6.2022 inviting application for filling up **WP(C) NO. 20301 OF 2022 and conctd. Case** **13** the post of Group-C posts which though also contains the reservation with regard to the PWD persons as the ratio for promotees and direct quota is 60-40. Petitioners would not be falling under the category of 60% quota and therefore there cannot be any interim stay viz-a-viz the said notification. It was submitted that the writ petition No.4585 of 2022 would not lie as the petitioners have laid challenge to the appointments of the persons under 60% direct recruitment for filling up the post of Peons that the posts were also kept reserved for the people with PWD. It was a case of direct recruitment under 60% quota whereas the claim of the petitioners would be under 40% quota. 6. I have heard the learned counsel for the parties and appraised the paper book. Section 33 and 34 of the Rights of persons with disabilities Act 2016 deals with identification of the post of reservation and reservation. However with a proviso to sub Section 1 of Section 34 reservation in promotion has to be in accordance with the instructions issued by the appropriate Government from time to time. The said point had been deliberated upon by various courts including the Supreme court as evident from the contents of the judgment rendered by this Court in W.P.(C) No.7802 of 2016 decided on 10.1.2017, ibid. For the sake of brevity paragraphs 6, 7 and 8 are extracted herein below: 6. On the other hand, learned counsel for the petitioner relied **WP(C) NO. 20301 OF 2022 and conctd. Case** **14** on the judgments of Apex Court in Union of India and Others v. National Confederation for Development of Disabled and Another [2015 (13) SCC 643], in this judgment the issue which arose before the Apex Court was in respect of the promotion to the cadre of Indian Administrative Service from the State Civil Services or by selection from persons who are holding gazetted posts in connection with the affairs of the State. In that case the Union Public Service Commission contended that Section 33 of the PWD Act does not provide for reservation in the matter of promotion, among other contentions. The Apex Court after referring to its earlier judgment, in Union of India and Others v. National Confederation for Blind reported in [2010 (7) SCC 626] and Popat Bahiru Govardhane v. Land Acquisition Officer [2013 (10) SCC 772], where it was held that the percentage of reservation for persons with disabilities has to be computed on total number of vacancies in the cadre strength. In paragraph 10, it was held as follows: In view of the aforesaid decision of the Supreme Court, it is clear that reservation has to be computed with reference to the total number of vacancies in the cadre strength and, therefore, no distinction can be made between the posts to be filled in by direct recruitment and by promotion. Total number of vacancies in the cadre strength would include the vacancies to be filled in by nomination and vacancies to be filled in by promotion. 7. Therefore it is held that no distinction can be made with respect to the posts to be filled by direct recruitment and by promotion i.e., the percentage of reservation should be reckoned on the total number of vacancies in the cadre strength irrespective of the mode of appointment to the said posts. Further the learned counsel relied on the judgment in Rajeev Kumar Gupta v. Union of India 2016 (3) KLT 263 (SC), where the Apex Court was considering a case where reservation was claimed for appointment to the posts, which are classified into groups A to D in Prasar Bharati Corporation of India. The issue raised therein was also regarding the filling up of vacancies by promotion and contentions were raised that the reservation is not applicable when the vacancies in the quota for promotion are not filled up. After considering those contentions, the Apex Court, in paragraph 24 held as follows: A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. **WP(C) NO. 20301 OF 2022 and conctd. Case** **15** Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post. 8. It is seen that the Board has not made any appointment under the 3% reservation quota for physically handicapped candidates and none of the posts in the Board are identified for reservation. The post of Clerk in the subordinate services of the State is already identified as suitable for appointment of Physically handicapped, as per G.O.(P) 20/98/P&ARD dated 14.07.1998. However the post of Clerks/Sub Group Officers under the 1st respondent Board are not identified or assessed for appointment under the 3% quota. Section 32 of the Act provides that appropriate Govt. shall identify posts, in the establishment, which can be reserved for the persons with disability and to review the list at periodical intervals and update the list taking into consideration the development of technology. 7. In compliance of the directions contained in the judgment extracted above, respondents came out with the notification with the order dated 22.1.2022 and kept the cut off date as 22.10.2021. The contention of the petitioners to the fact that the respondents have not considered the backlog has been proved on the basis of the statement made by the counsel representing the Devaswom Board and recorded in the order of this Court dated 7.12.2022. The order dated 7.12.2022 reads as under: I have heard Smt. Shameena Salahudeen, the learned counsel appearing for the writ petitioners, and C.K. Pavithran, the learned counsel appearing for the 1st respondent and Sri. Nandagopal Nambiar, the learned Standing Counsel appearing for the Travancore Devaswom Recruitment Board. **2.** Sri. Nandagopal Nambiar submitted that in terms of the interim order dated 14.06.2022 in W.P.(C.) No.17626/2022, and interim order dated 23.06.2022 in W.P.(C.) No. 20301/2022, the respondents have kept aside nine posts out of 50 vacancies, as notified in Exhibit P9 in W.P.(C.) No. 20301 of 2022. It is further **WP(C) NO. 20301 OF 2022 and conctd. Case** **16** submitted that based on the performance in the written examination, a shortlist is required to be prepared since over One Lakh persons had applied and appeared for the examinations. The learned counsel requests that the respondents be permitted to publish the rank list and issue advise memos, and as nine vacancies have been kept aside, no prejudice would be caused to thepetitioners. 3. Sri. C.K. Pavithran, the learned counsel appearing for the Devaswom Board, submitted that the Devaswom Board has recognized that in Order No. R.O.C.13846/1997/Mis dated 10.3.1998 issued by the Secretary, the order to the extent that it restricts the benefits due to Persons with Disabilities with effect from 22.9.2021, is liable to be reconsidered. It is submitted that after the filing of the writ petition, based on legal opinion, it has been decided to fill up the backlogs in terms of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and Right of Persons with Disabilities Act, 2016. It is further submitted that an appropriate decision shall be taken within one month from today. 4. Smt. Shameena Salahudeen, the learned counsel appearing for the petitioners, submitted that without fixing the cadre strength if advise memos are issued, the seniority of persons like the petitioners who have been sidelined for years would be affected. It is submitted that in spite of admitting that an error has crept into the order, the Devaswom Board has still not filed a counter. **3.** 5. Having considered the submissions advanced, I am of the opinion that having kept aside nine vacancies out of the 50 vacancies notified, the interim order can be modified to the limited extent of permitting the respondents to publish the ranked list. The Devaswom Board shall file its counter. 8. In inadvertently, this Court in the order dated 7.12.2022 instead of mentioning the date as 22.1.2022 referred to as 10.3.1998. I am of the view that the wisdom dawned the Board on the basis of the legal opinion of considering the backlog for the purpose of fixing the cut of date. The order dated 22.1.2022 cannot be permitted to sustain. Accordingly, the same is set aside. Respondents are directed to revisit the issue in terms of the **WP(C) NO. 20301 OF 2022 and conctd. Case** **17** statement made in this Court and decide controversy within three months from the date of receipt of a certified copy of this judgment. 9. As far the notification dated 18.6.2022, Ext.P9 in W.P.(C) No.20301 of 2022 and Ext.P1 in W.P.(C) No.17626 of 2022 is concerned, which pertained to filling up the post under 60% quota meant for direct recruitment whereby the respondent Devaswom Board has also kept the reservation keeping in view the provisions of Section 33 and 34 of the 2016 Act. Petitioners cannot have any grievance because they would be falling in 40% quota ie., transfer on promotion for the reason that all the petitioners originally were appointed under the general category. It is only in view of the various judgments and the provisions under Sections 33 and 34 of the 2016 Act, are claiming benefit of horizontal promotion for PWD. Respondents in this view of the matter are at liberty to proceed ahead with regard to the notification dated 18.6.2022 in accordance with law, and make the promotions, immediately thereafter. 10. At this stage, counsel for the Devaswom Board submitted that the rank list by the time the writ petition was filed had already been published. In this view of the matter, they are at liberty to finalize the rank list and make the appointments under 60% quota. As far as the claim of the petitioners in WP(C) No.4585 of 2022 is concerned, the petitioners also cannot have any grievance as the said advertisement was for filling up the post under 60% quota. **WP(C) NO. 20301 OF 2022 and conctd. Case** **18** Respondents are at liberty to pursue the notification, if not done and if already rank list had been made, are at liberty to issue appointment letters as per the merit. **Sd/-** sab **AMIT RAWAL JUDGE** **WP(C) NO. 20301 OF 2022 and conctd. Case** **19** ## **APPENDIX OF WP(C) 4585/2022** ## PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE JUDGMENT IN WP(C) NO. 7802/2016| |---|---| ||DATED 10.01.2017 OF THIS HON'BLE COURT.| |Exhibit P2|A TRUE COPY OF THE ROC NO.11829/15/MISC.1 DATED| ||20.06.2017 ISSUED BY THE 2ND RESPONDENT.| |Exhibit P3|A TRUE COPY OF THE ROC NO. 13693/21/MISC.A/EST.A| ||DATED 22.01.2022 ISSUED BY THE 4TH RESPONDENT.| |Exhibit P4|A TRUE COPY OF THE FINAL SENIORITY LIST PUBLISHED| ||BY THE 4TH RESPONDENT DATED 22.01.2022.| |Exhibit P5|A TRUE COPY OF THE ROC NO. 18133/21/EST-B DATED| ||8.02.2022 ISSUED BY THE 4TH RESPONDENT.| |Exhibit P6|A TRUE COPY OF THE GO(P) NO. 8/17 SJD DATED| ||6.5.2017 ISSUED BY THE DEPARTMENT OF SOCIAL| ||JUSTICE.| |Exhibit P7|A TRUE COPY OF THE G.O(P) NO.18/2018/SJD DATED| ||18.11.2018 ISSUED BY THE DEPARTMENT OF SOCIAL| ||JUSTICE.| |Exhibit P8|A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 6TH| ||RESPONDENT DATED 1.1.2022.| |Exhibit P8(a)|A TRUE COPY OF THE CERTIFICATE ISSUED BY THE 6TH| ||RESPONDENT DATED 1.2.2022.| |Exhibit P9|A TRUE TYPED COPY OF THE REQUEST DATED 17.2.2022| ||SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH| ||RESPONDENT| |Exhibit P10|A TRUE PHOTOCOPY OF THE ORDER NO ROC NO.7/21/EST| ||DATED 21.2.2022 ISSUED BY THE 6TH RESPONDENT| |RESPONDENT EXHIBITS|| |Exhibit-R3(a)|copy of the relevant portion of the Special Rules| ||published in Kerala Gazette dated 20.06.2022| **WP(C) NO. 20301 OF 2022 and conctd. Case** **20** ## **APPENDIX OF WP(C) 17626/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE NOTIFICATION NO.707R1/2022/K.D.R.B. DATED 18.05.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit P2 A TRUE COPY OF THE GO(P) NO.8/17/SWD DATED 06.05.2017 ISSUED BY THE 6TH RESPONDENT. Exhibit P3 A TRUE COPY OF THE ROC NO.13693/21/MISC.A/EST.A DATED 22.01.2022 ISUSED BY THE 1ST RESPONDENT. Exhibit P4 A TRUE COPY OF THE FINAL SENIORITY LIST PUBLISHED BY THE 1ST RESPONDENT DATED 22.01.2022. RESPONDENT EXHIBITS Exhibit R1(a) The copy of the order dated 20.06.2017 in R.O.C. No. 11829/15/Mis.-I PETITIONER EXHIBITS Exhibit P5 A TRUE COPY OF THE CIRCULAR NO.ROC.13693/21 MISC/ESTT DATED 31/12/2022 ISSUED BY THE 1ST RESPONDENT RESPONDENT EXHIBITS Annexure R1(b) True copy of the list of category A, B and C **WP(C) NO. 20301 OF 2022 and conctd. Case** **21** ## **APPENDIX OF WP(C) 20301/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE JUDGMENT DATED 10.01.2017 IN W.P(C). NO. 7802 OF 2016 ISSUED BY THIS HON'BLE COURT Exhibit P2 A TRUE PHOTOCOPY OF THE LETTER ROC.9648/15/MIS-A DATED 22.04.2017 ISSUED BY THE 2ND RESPONDENT-COMMISSIONER Exhibit P3 A TRUE COPY OF THE G.O(P).NO.8/17/SWD DATED 06.05.2017 ISSUED BY THE 6TH RESPONDENT Exhibit P4 A TRUE COPY OF THE G.O.(RT) NO.784/2021/RD DATED 17.02.2021 ISSUED BY REVENUE (DEVASWOM) DEPARTMENT Exhibit P5 A TRUE COPY OF THE G.O.(MS.).NO. 181/2021/RD DATED 22.09.2021 ISSUED BY REVENUE (DEVASWOM) DEPARTMENT Exhibit P6 A TRUE COPY OF THE ORDER NO.R.O.C.13693/21/MISCA/ESTT-A DATED 22.01.2022 ISSUED BY THE 3RD RESPONDENTDEPUTY DEVASWOM COMMISSIONER Exhibit P7 A TRUE COPY OF THE R.O.C.13846/97/MIS DATED 10.03.1998 ISSUED BY THE SECRETARY OF THE 1ST RESPONDENT-BOARD Exhibit P8 A TRUE COPY OF G.O(P). NO. 12/2019/S.J.D. DATED 31.10.2019 ISSUED BY THE 6TH RESPONDENT-DEPARTMENT OF SOCIAL JUSTICE Exhibit P9 A TRUE COPY OF THE NOTIFICATION NO.707R1/2022/K.D.R.B. DATED 18.05.2022 ISSUED BY THE 2ND RESPONDENT RESPONDENT EXHIBITS EXHIBIT R1(e) True copy of the letter dated 27-08-2020 in R.O>C> No. 245/09/Est-1 along with the draft notification **WP(C) NO. 20301 OF 2022 and conctd. Case** **22** EXHIBIT R1(d) True copy of the report dated 11-02-2019 in R.O.C.No. 9648/15/Mis-A along with the list EXHIBIT R1(c) True copy of the circular dated 22-12-2018 EXHIBIT R1(b) True copy of the circular dated 10-07-2018 in R.O.C.No.9648/15/Mis-1 EXHIBIT R1(a) True copy of the order dated 20-06-2017 in R.O.C.No. 11829/15/Mis-1 EXHIBIT R1(f) True copy of the letter received from the principal Secretary dated 17-02-2021 in G.O.(Rt) No. 784/2021/RD EXHIBIT R1(g) True copy of the order dated 29-09-2021 in R.O.C.245/09/Est-1 EXHIBIT R1(h) True copy of the order dated 10-03-3023 in R.O.C. No. 12530/21/Est-II along with the approved list EXHIBIT R1(i) True copy of the order dated 09-04-2021 R.O.C. No. 87/12/Est-1