Madhu S. v. Travancore Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938** ## **WP(C).No. 7802 of 2016 (A)** **---------------------------** **PETITIONER:** **---------------------** **MADHU S., S/O. SIVASANKARA PILLAI, AGED 45, KARUNILAM, THAKAZHY P.O., ALAPPUZHA, PIN- 688 562, (PRESENTLY WORKING AS WATCHER IN THE CHACKANGARI DEVASWOM).** **BY ADVS.SRI.G.KRISHNAKUMAR, SMT.M.L.REMYA.** **RESPONDENTS:** - **--------------------------** **1. TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD, SECRETARIAT, THIRUVANANTHAPURAM-695 001, REPRESENTED BY ITS SECRETARY.** **2. COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD, SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **3. ASSISTANT DEVASWOM COMMISSIONER, DEVASWOM BOARD, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **4. COMMISSIONER, DISABILITIES AND EX-OFFICIO SECRETARY TO GOVERNMENT OF KERALA, ROOM NO. 113, SECRETARIAT, THIRUVANANTHAPURAM -695 012.** **5. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, DEVASWOM DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **WP(C).No. 7802 of 2016 (A)** **6. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF SOCIAL WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **R1 TO R3 BY SRI.T.K.AJITH KUMAR, SC, SRI.A.N.RAJAN BABU, SC. R4 TO R6 BY GOVT. PLEADER SRI.B. UNNIKRISHNA KAIMAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 7802 of 2016 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1:TRUE COPY OF THE CERTIFICATE OF DISABILITY ISSUED BY THE MEDICAL BOARD, T.D. MEDICAL COLLEGE HOSPITAL, ALAPPUZHA.** - **P2:TRUE COPY OF THE IDENTITY CARD FOR PERSONS WITH DISABILITIES ISSUED BY THE GOVERNMENT TO THE PETITIONER.** - **P3:TRUE COPY OF THE REPRESENTATION DTD. 24.05.2015 PREFERRED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P4:TRUE COPY OF THE REPRESENTATION DTD. 09/11/2015 TO THE 2ND RESPONDENT.** - **P5:TRUE COPY OF THE REPRESENTATION DTD. 09/11/2015 PREFERRED TO THE 1ST RESPONDENT.** - **P6:TRUE COPY OF THE REPRESENTATION DTD. 24/05/2015 PREFERRED TO THE 6TH RESPONDENT.** - **P7:TRUE COPY OF THE REPORT DTD. 03/08/2015 OF THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. **'CR'** ## **P.V.ASHA J.** ## **--------------------------------------------** ## **W.P.(C).No.7802 of 2016** **---------------------------------------------** Dated this the 10[th] day of January, 2017 ## **J U D G M E N T** Petitioner is working as Watcher in Chakangari Devaswom in Ambalapuzha Group under the first respondent-Travancore Devaswom Board. He is a physically handicapped person with hearing impairment and his disability is certified as 42%, in Ext.P2. Claiming appointment to the post of L.D Clerk/Sub group Officer under the 3% quota to be reserved for the physically handicapped under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as the 'Act'), petitioner submitted representations Exts.P3, P4 and P5 before the respondents. Apart from that, he submitted another representation Ext.P6 before the Secretary to Social Justice Department. On receipt of the representations submitted by him, the Commissioner of Devaswom had called for a report from the Assistant Commissioner who forwarded Ext.P7 report furnishing the details of qualification, the particulars of service as well as percentage of disability of the petitioner. Seeing that the respondents were not taking any action for appointment in terms of the provisions contained in the Act, he filed this writ petition praying for a direction to the respondents to implement W.P.(C).No.7802 of 2016 2 the provisions contained in the Act, 1995 for appointment by transfer to the post of L.D Clerk/Sub group Officer under the Devaswom Board and for consequential directions. 2. The respondent Board has filed a statement stating that the reservation for physically disabled persons under the 1995 Act is admissible only for appointment by direct recruitment and not for promotion and therefore, the petitioner is entitled to get promotion only when his turn arises as per the rank assigned to him in the seniority list. 3. I heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent. 4. Learned Standing Counsel opposed the prayers relying on the judgment of this Court reported in **Sivadasan O. v. State of Kerala and Another** [2015 (4) KHC 257)], in which it was held that reservation for physically handicapped envisaged in the 1995 Act is not applicable to promotion. 5. The objection raised by the respondent relying on the judgment of this Court is not sustainable in the light of the judgment of the Apex Court in the judgment in W.P.(C). No.22488/2009: CDJ 2016 Ker HC 813, this Court has also held that reservation is permissible for promotion also. 6. On the other hand, learned counsel for the petitioner W.P.(C).No.7802 of 2016 3 relied 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. W.P.(C).No.7802 of 2016 4 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 W.P.(C).No.7802 of 2016 5 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. 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 1[st] 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. 9. Establishment is defined under Section 2(k) of the W.P.(C).No.7802 of 2016 6 Act. It means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government, or a local authority or a Government Company as defined in Section 617 of the Companies Act. Travancore Devaswom Board is an autonomous body formed as per the Travancore Cochin Hindu Religious Institutions Act of 1950. In **Radhakrishnan P. V. Cochin Devaswom Board, Thrissur and others** [2015 (4) KLT 523], this Court has held that the Cochin Devaswom Board is a body corporate established by or under the TCHRI Act, 1950 and directions were issued to Government to expedite the exercise under Section 33 of PWD Act 98 and to identify the posts, in tune with the directions contained in **Government of India v. Ravi Prakash Gupta** [2010 (7) SCC 626]. Therefore in tune with the aforesaid judgment Travancore Devaswom Board also is an establishment as defined under the Act, 1995. At any rate in this case the only objection of respondent Board is that reservation is no permissible for promotion. Therefore it is necessary that the respondent Board shall take up the matter with Government and that the Government identifies the posts under the Devaswom Board, which can be reserved for the persons with disability. It shall also see that W.P.(C).No.7802 of 2016 7 appointments are made in the 3% quota by the physically handicapped, in the ratio of 1:1:1 between persons suffering from (i) blindness or low vision (ii) hearing impairment and (iii) locomotor disability or cerebral palsy, in tune with section 33 of the Act. 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 W.P.(C).No.7802 of 2016 8 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. Sd/- **P.V.ASHA, JUDGE.** AS