High Court of KeralaDivision Bench2023-11-10Disposed of accordingly: Ext P4 set aside; Trib...

OP(KAT) NO. 506 OF 2023

Case / Petition Number:OP(KAT) NO. 506 OF 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Muhammed Mustaque
Shoba Annamma Eapen
Judgment Date: 2023-11-10
Court Decision / Holding: This Original Petition is disposed of accordingly. Ext P4 interim order is set aside; the Tribunal is to consider Exts. P12 and P13 and decide the matter in its finality, with urgency due to retirement timelines.
Final Disposition: Disposed of accordingly: Ext P4 set aside; Tribunal to conduct final adjudication after considering Exts P12 and P13; matter to be heard urgently and decided on final merits.

Parties to the Case

Appellants / Petitioners

STATE OF KERALA represented by its Principal Secretary, Department of Fisheries, Government Secretariat, Thiruvananthapuram, Kerala
DIRECTOR OF FISHERIES, Directorate of Fisheries, Vikas Bhavan, Thiruvananthapuram, Kerala
DEPUTY DIRECTOR OF FISHERIES, Kozhikode, Office of the Deputy Director of Fisheries, West Hill, Kozhikode, Kerala

Respondents

PRABHAKARAN.K, S/O.BALAKRISHNAN NAIR, Fisheries Cooperative Inspector, Office of the Deputy Director of Fisheries, West Hill, Kozhikode, Kerala
THE DIRECTOR SOCIAL JUSTICE DEPARTMENT, Directorate of Social Justice, Vikas Bhavan, 5th Floor, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Saigi Jacob Palatty (Government Pleader)

Case Synopsis & Summary

This High Court of Kerala at Ernakulam hears OP(KAT) 506 of 2023 filed by the State of Kerala and others challenging the Kerala Administrative Tribunal’s OA 488/2022. The central issue is the identification for the post of Assistant Registrar in the Fisheries Department for promotion in the Persons With Disability (PWD) quota. The Tribunal, by its order dated 21.12.2022 in OA 488/2022, held that the post had been identified and there was no dispute, and it provisionally promoted the applicant. The State petitioned, arguing the post is filled by direct recruitment rather than promotion, and that the earlier 2012 identification is not relevant in light of a 2021 Supreme Court pronouncement in State of Kerala v. Leesamma Joseph, which clarified the scope of PWD promotion rights. The Government relied on Exts. P12 and P13 to contend that the post should be excluded from the promotional category, an argument not considered by the Tribunal in the original order. The Court notes Ext. P4 was an interim order and directs the Tribunal to adjudicate finally after taking Exts. P12–P13 into account, while urging an expeditious hearing given retirement timelines. The petition is disposed of with directions for a final determination by the Tribunal, acknowledging that the 2021 Leesamma Joseph decision may affect promotional eligibility for this post.

Provisions of Law Cited

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995Rights of Persons with Disabilities Act, 2016

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the post of Assistant Registrar (Co-operative) within the Fisheries Department was identified for PWD quota and that the Tribunal’s 21.12.2022 order should be sustained as it recognizes the post for promotion. They rely on the 2012 identification as a basis and emphasize that the post’s appointment is promotional, not direct recruitment. They urge final adjudication by the Tribunal after considering Exts. P12 and P13, and highlight the Supreme Court’s 2021 decision in State of Kerala v. Leesamma Joseph to argue that PWD promotion rights were clarified in 2021, which may impact the post’s status. They request urgent disposal given retirement timelines.

Contentions of Respondents

The respondents argue that the 2021 Leesamma Joseph decision restricted PWD promotion rights to the 2021 framework, and that the Government decided to exclude the post from the promotional category. They point to Exts. P12 and P13 as supporting this policy and urge the Tribunal to finalize the matter after re-evaluation, noting that the Tribunal’s interim order (Ext. P4) should be set aside so the matter can be finally determined. They stress the need for an early hearing due to retirement and advocate for a definitive decision on eligibility under the updated legal framework.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Leesamma Joseph	Civil Appeal No. 59 of 2021; (2021) SCC 273	Positive	The Supreme Court decision is cited as establishing the timeline for PWD promotion rights, which the Court uses to frame the matter and to justify revisiting the interim identification in light of 2021 jurisprudence.
Rajeev Kumar Gupta & Others v. Union of India & Others	Civil Appeal No. 5389/2016	Mentioned Only	Annexed judgment referenced in the annexures; not discussed in the body of the judgement.
Siddaraju v. State of Karnataka & Others	Civil Appeal No. 1567/2017	Mentioned Only	Annexed judgment referenced; no reasoning in the current decision relies on it.
Leesamma Joseph v. State of Kerala & Others	OP(KAT) No. 286/2015 (Kerala HC)	Mentioned Only	Annexed to the record and cited in the context of background jurisprudence but not discussed in detail in the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ## **`&`** ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` FRIDAY, THE 10[TH] DAY OF NOVEMBER 2023 / 19TH KARTHIKA, 1945 ``` ``` OP(KAT) NO. 506 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT OA (EKM) 488/2022 OF KERALA ``` ``` ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`PETITIONER/S/RESPONDENTS 1 TO 3 IN O.A.:`** - **`1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF FISHERIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001`** - **`2 THE DIRECTOR OF FISHERIES, DIRECTORATE OF FISHERIES, VIKAS BHAVAN, THIRUVANANTHAPURAM,KERALA, PIN - 695001`** - **`3 THE DEPUTY DIRECTOR OF FISHERIES, KOZHIKKODE, OFFICE OF THE DEPUTY DIRECTOR OF FISHERIES, WEST HILL, KOZHIKKODE,, PIN - 673005`** - **`BY GOVERNMENT PLEADER, ADV. SAIGI JACOB PALATTY`** ## **`RESPONDENT/S/APPLICANT & ADDITIONAL 4TH RESPONDENT IN O.A.:`** - **`1 PRABHAKARAN.K, S/O.BALAKRISHNAN NAIR, AGED 52 YEARS, FISHERIES COOPERATIVE INSPECTOR, OFFICE OF THE DEPUTY DIRECTOR OF FISHERIES, WEST HILL.P.O, KOZHIKKODE, KOZHIKKODE DISTRICT, PIN - 673005, NOW RESIDING AT SREE LAVANYAM, KURUNTHALAPARAMBA, KARAPARAMBA.P.O, KOZHIKKODE, KERALA, PIN - 673010`** - **`2 THE DIRECTOR SOCIAL JUSTICE DEPARTMENT, DIRECTORATE OF SOCIAL JUSTICE, VIKAS BHAVAN, 5 TH FLOOR, THIRUVANANTHAPURAM, PIN - 695033 (ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 11.07.2022 IN M.A (EKM) 6 NO.1185/2022), KERALA., PIN - 695033`** ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY ``` ``` HEARD ON 10.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(KAT) NO. 506 OF 2023 ``` ``` 2 ``` ## **`JUDGMENT`** ## **`Dated this the 10[th] day of November, 2023`** ## **`A.MUHAMED MUSTAQUE (J)`** ``` The State has come up with this original petition. The issue in this original petition is with regard to the identification for the post of Assistant Registrar in Fisheries Department for the purpose of promotion in the quota available for Persons With Disability (PWD) candidates. The Tribunal passed an order dated 21.12.2022 in O.A.(EKM) No.488 of 2022, holding that the post has been already identified and there is no dispute on this. Thereafter, the applicant therein ordered to be provisionally promoted as Assistant Registrar of Fisheries. The State had filed a review application as R.A.No.10/2023 seeking to review the said Order on the ground that the appointment to the post of the Assistant Registrar of Fisheries (Co-operative) was one through direct recruitment and not by promotion. But, the review has been dismissed by the Tribunal by holding that the ``` ``` OP(KAT) NO. 506 OF 2023 ``` **==> picture [8 x 9] intentionally omitted <==** ``` identification for the post of Assistant Registrar was early as on 2012 and therefore, no ground for review of the order is made out. ``` ``` 2.According to the learned Government Pleader, the Hon’ble Apex Court considered the right for promotion of the Persons With Disability (PWD) candidates only in the year 2021, as per the judgment dated 28.06.2021 inthe State of Kerala v. Leesamma Joseph reported in (2021) SCC 273, Civil Appeal No.59 of 2021.The earlier identification for the said post has no relevance in this matter. According to the learned Counsel for the first respondent, the Government decided to exclude this post from the promotional category. The learned Government Pleader placed reliance on Exts.P12 and P13. We see that the Tribunal had no occasion to consider Exts.P12 and P13, as it was produced first time before this Court. ``` ``` 3.Taking note of the fact that Ext.P4 was only an interim order and the Tribunal has to consider this matter finally, it is appropriate to set aside the Ext.P4 order and re-consider the matter after adverting to Exts.P12 and ``` ``` 4 ``` ## **`OP(KAT) NO. 506 OF 2023`** ``` P13. It is open for the Tribunal to conclude the entire matter instead of passing an interim order, as the order of this nature may require final determination of the issue involved. ``` ``` The respondent can press for an early hearing of the matter before the Tribunal itself. We are sure that the Tribunal will take up the matter urgently, in view of the fact that the respondent is due to retire soon. ``` ``` This Original Petition is disposed of accordingly. ``` ``` Sd/- ``` ## **`A.MUHAMED MUSTAQUE`** ## **`JUDGE`** ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN JUDGE ``` RK ``` OP(KAT) NO. 506 OF 2023 ``` ``` 5 ``` ## **`APPENDIX OF OP(KAT) 506/2023`** ``` PETITIONER ANNEXURES Annexure A1A TRUE COPY OF THE CERTIFICATE OF PHYSICALLY HANDICAPPED OF THE DIRECTORATE OF MEDICAL EDUCATION, KERALA ISSUED BY THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOZHIKKODE DATED 30.09.2002. Annexure A2A TRUE COPY OF THE PROCEEDINGS OF THE DEPUTY DIRECTOR OF FISHERIES, KOZHIKKODE VIDE ORDER NO.B1/5584/02 DATED 27.07.2004 Annexure A3A TRUE COPY OF THE PROCEEDINGS OF THE 34 DIRECTOR OF FISHERIES, THIRUVANANTHAPURAM VIDE ORDER NO.DFTVM/3018/2021-A4(4) DATED 15.01.2022. Annexure A4A TRUE COPY OF THE RELEVANT PAGES OF THE PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995. Annexure A5A TRUE COPY OF THE RELEVANT PAGES OF THE RIGHT OF PERSONS WITH DISABILITIES ACT, 2016. Annexure A6A TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN RAJEEV KUMAR GUPTA & OTHERS VS. UNION OF INDIA & OTHERS IN CIVIL APPEAL NO.5389/2016 Annexure A7A TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN SIDDARAJU VS. STATE OF KARNATAKA & OTHERS IN CIVIL APPEAL NO.1567/2017 DATED 14.01.2020. Annexure A8A TRUE COPY OF THE HON'BLE KERALA HIGH COURT JUDGMENT IN LEESAMMA JOSEPH VS. STATE OF KERALA & OTHERS IN O.P (KAT) NO.286/2015 DATED 09.03.2020. Annexure A9A TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE STATE OF KERALA & OTHERS VS. LEESAMMA JOSEPH IN ``` ``` OP(KAT) NO. 506 OF 2023 ``` ``` 6 ``` ||**`CIVIL APPEAL NO.59/2021 DATED`**| |---|---| ||**`28.06.2021.`**| |**`Annexure A10`**|**`A TRUE COPY OF THE FINAL SENIORITY`**| ||**`LIST OF FISHERIES CO-OPERATIVE`**| ||**`INSPECTOR (CATEGORY-I) AS ON`**| ||**`01.01.2021 PUBLISHED VIDE ORDER`**| ||**`NO.DFTVM/254/2021 DATED 05.05.2021.`**| |**`Annexure A11`**|**`A TRUE COPY OF THE REPRESENTATION`**| ||**`DATED 13.10.2021 SUBMITTED BY THE`**| ||**`APPLICANT BEFORE THE 2 ND RESPONDENT`**| ||**`THROUGH THE PROPER CHANNEL`**| |**`Annexure A12`**|**`A TRUE COPY OF THE COMMUNICATION WITH`**| ||**`NO.B1-4998/2019 DATED 23.10.2021 OF`**| ||**`THE 3 RD RESPONDENT.`**| |**`Annexure A13`**|**`A TRUE COPY OF THE COMMUNICATION WITH`**| ||**`NO.DFTVM/3238/2021-A4 DATED 26.11.2021`**| ||**`OF THE 35 2 ND RESPONDENT ADDRESSED TO`**| ||**`THE 1 ST RESPONDENT.`**| |**`Annexure A14`**|**`A TRUE COPY OF THE SAID REPRESENTATION`**| ||**`DATED 14.01.2022 OF THE APPLICANT`**| ||**`SUBMITTED BEFORE THE 2 ND RESPONDENT`**| ||**`THROUGH PROPER CHANNEL.`**| |**`Annexure A15`**|**`A TRUE COPY OF THE COMMUNICATION WITH`**| ||**`NO.DFTVM/3238/2021-A4 DATED 02.02.2022`**| ||**`OF THE 2 ND RESPONDENT ADDRESSED TO`**| ||**`THE 1 ST RESPONDENT.`**| |**`Annexure A16`**|**`A TRUE COPY OF THE REPRESENTATION`**| ||**`DATED 18.02.2022 OF THE APPLICANT`**| ||**`SUBMITTED BEFORE THE 2 ND RESPONDENT`**| ||**`ALONG WITH THE COVERING LETTER THROUGH`**| ||**`FISHERIES DEPUTY DIRECTOR.`**| |**`Annexure A17`**|**`A TRUE COPY OF THE DECISION OR`**| ||**`COMMUNICATION WITH NO.FANDP-`**| ||**`A2/240/2021-FANDP DATED 22.02.2022 OF`**| ||**`THE 1 ST RESPONDENT ADDRESSED TO THE 2`**| ||**`ND RESPONDENT.`**| |**`Annexure A18`**|**`A TRUE COPY OF THE COMMUNICATION WITH`**| ||**`NO.DFTVM/3238/2021-A4 DATED 28.02.2022`**| ||**`OF THE 2 ND RESPONDENT ADDRESSED TO`**| ||**`THE DEPUTY DIRECTOR OF FISHERIES.`**| ``` 7 ``` ## **`OP(KAT) NO. 506 OF 2023`** - **`Annexure RA (1) TRUE COPY OF THE ORIGINAL APPLICATION Annexure RA(2) TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE APPLICANT.`** - **`Annexure RA( 3) TRUE COPY OF THE INTERIM ORDER DATED 21.12.2022.`** - **`Miscellaneous MISCELLANEOUS APPLICATION FOR Application CONDONATION OF DELAY IN RA Annexure MA(1) A TRUE COPY OF THE G.O(P) NO.7/2022/SJD DATED 28.10.2022 ISSUED BY THE SOCIAL JUSTICE DEPARTMENT`** - **`Annexure MA(2) A TRUE COPY OF THE G.O(P) NO.61/2012/SWD DATED 17.10.2012`** - **`Annexure MA(3) A TRUE COPY OF THE GOVT.ORDER G.O. (P)NO.5/2022/SJD DATED 15-07-2022 ISSUED BY THE SOCIAL JUSTICE DEPARTMENT`** - **`Annexure MA(4) A TRUE COPY OF THE GOVT.ORDER G.O (P) NO. 01/2019/F & PD DATED 29-01-2019 ISSUED BY THE FISHERIES DEPARTMENT`** - **`Exhibit P1 A TRUE COPY OF THE O.A.(EKM) NO.488/2022 ALONG WITH ANNEXURES`** - **`Exhibit P2 A TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE RESPONDENT FOR IMPLEADING THE DIRECTOR, SOCIAL JUSTICE DEPARTMENT AS ADDITIONAL R4.`** - **`Exhibit P3 A TRUE COPY OF THE GOVERNMENT ORDER G.O (P)NO.61/2012/SWD DATED 17.10.2012 ISSUED BY THE 2 ND RESPONDENT.`** - **`Exhibit P4 A TRUE COPY OF THE INTERIM ORDER DATED 21.12.2022 IN O.A (EKM) NO.488/2022.`** - **`Exhibit P5 A TRUE COPY OF THE REVIEW APPLICATION, RA NO.10/2023.`** - **`Exhibit P6 A TRUE COPY OF THE REPLY STATEMENT Exhibit P7 A TRUE COPY OF THE CONTEMPT PETITION CP (EKM) NO.12/2023 FILED BY THE RESPONDENT`** - **`Exhibit P8 A TRUE COPY OF THE ORDER DATED 14.09.2023 PASSED BY THE LEARNED TRIBUNAL IN CP (EKM) NO.12/2023`** ``` 8 ``` ## **`OP(KAT) NO. 506 OF 2023`** ``` Exhibit P9 ``` ``` Exhibit P9A TRUE COPY OF THE A TRUE COPY OF THE MA NO.1636 /2023 FILED BY THE 1 ST PETITIONER HEREIN Exhibit P10A TRUE COPY OF THE MA NO.1628./2023 FILED BY THE 2 ND PETITIONER HEREIN Exhibit P11A TRUE COPY OF THE MA NO.1638/2023 FILED BY THE 3 RD PETITIONER HEREIN Exhibit P12A TRUE COPY OF THE G.O (P) NO.7/2022/SJD DATED 28.10.2022 Exhibit P13A TRUE COPY OF THE LETTER DATED 17.04.2023 ISSUED BY THE 1 ST PETITIONER TO THE 2 ND RESPONDENT Exhibit P14A TRUE COPY OF THE SPECIAL RULES OF THE FISHERIES DEPARTMENT Exhibit P15A TRUE COPY OF THE ORDER DATED 11.10.2023 ISSUED BY THE LEARNED TRIBUNAL REFUSING TO INTERFERE IN THE INTERIM ORDER DATED 21.12.2022 Exhibit P16A TRUE COPY OF THE G.O (P) NO.5/2023/SJD DATED 01.10.2023. ```