High Court of KeralaDivision Bench2020-02-06Writ appeals dismissed; directions issued to pr...

WA Nos. 1335/2018; 1563/2018 and 1605/2018 (Kerala State Electricity Board Ltd v Babu K.P; Litty T.L; State of Kerala and others)

Case / Petition Number:WA Nos. 1335/2018; 1563/2018; 1605/2018

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
V. G. Arun
Judgment Date: 2020-02-06
Court Decision / Holding: Writ appeals would stand rejected with the above direction; the KSEB is directed to promote four respondents to the identified reserved vacancies with immediate effect, and, if no regular vacancies exist, to create supernumerary posts to satisfy the 3% quota for PWDs in the identified posts.
Final Disposition: Writ appeals dismissed; directions issued to promote four respondents and create supernumerary posts to satisfy the 3% reservation for PWDs in identified posts.

Parties to the Case

Appellants / Petitioners

KERALA STATE ELECTRICITY BOARD LTD represented by its Secretary, Vydhuthu Bhavanam, Pattom, Trivandrum; Chief Engineer HRM, KSEB Ltd., Vydhuthi Bhavanam, Pattom, Trivandrum

Respondents

BABU K.P., Sub Engineer (Electrical), KSEB Ltd., Electrical Sub Division, Thalassery, Kannur District

Legal Representation & Advocates

Counsels for Petitioners

• Aneetha A.G., Senior Counsel, KSEB Limited (for Appellants)

Counsels for Respondents

• P.M. Pareeth (through B/O for Respondent 1 in WA1335); Pareeth P.M. (for Respondent 1); Government Pleader (for Respondents 1-3 in WA1563/2018); K.M. Jamaludheen (for Respondents 4-10 in WA1563/2018); Latha Prabhakaran (for Respondents 4-10 in WA1563/2018); Government Pleader (for Respondents 2-3 in WA1605/2018); G. Krishnakumar (for Respondent 1 in WA1605/2018)

Case Synopsis & Summary

These writ appeals arise from disputes over promotion of persons with locomotor disabilities (PWD) in Kerala State Electricity Board (KSEB). The appellants challenge decisions related to identifying posts for PWD and providing reservation in promotions under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. The respondents are locomotor-disabled employees claiming promotion to posts such as Assistant Engineer (Electrical) and Assistant Engineer (Civil) identified for PWDs. The High Court, citing Indira Sawhney, Rajeev Kumar Gupta and Siddaraju, holds that there can be reservation in promotions for PWDs in posts identified for them, and that 3% cadre vacancies must be satisfied. The court acknowledges that certain PWD employees currently await promotion; however, seniority concerns are addressed by directing that reserved vacancies be filled and, if vacancies are unavailable, supernumerary posts may be created to implement the quota. Four respondents are found to have a valid claim, and the KSEB is directed to promote them with immediate effect, while ensuring that any vacancies accrued in the regular cadre are filled from the reserved pool. The judgment, pronounced by a Division Bench, clarifies the legal position on disability-based reservations in promotions and integrates jurisprudence from Sawhney, Rajeev Kumar Gupta and Siddaraju.

Provisions of Law Cited

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

Legal Doctrines & Maxims

Reservation in promotions for persons with disabilities in posts identified for them is permissible under the 1995 Act.
If there are no regular vacancies for the reserved posts, creating supernumerary posts can be a mechanism to implement the reservation without disturbing regular cadre seniority.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that while posts are identified for PWDs, there were insufficient vacancies to accommodate promotions under the 3% quota; they urged that, if vacancies do not exist, promotions to reserved posts could not be effected and that supernumerary posts must be created to fulfill the quota, without disturbing regular cadre seniority.

Contentions of Respondents

The respondents contended that the disability entitles them to reservation in promotions to posts identified for PWDs, with the 3% quota to be satisfied; they urged immediate promotion to reserved vacancies and asserted that where vacancies are lacking, steps to create vacancies or supernumerary posts should be taken to implement the reservation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Sawhney v. Union of India	[(1992) Supp.3 SCC 217]	Distinguished	The court distinguishes the Sawhney rule on reservation in promotion for general categories, limiting it in the context of disability-based reservations (PWD) and relying on later jurisprudence in Rajeev Kumar Gupta.
Rajeev Kumar Gupta and others v. Union of India	[(2016) 13 SCC 153]	Positive	Cited as a basis for endorsing reservation in promotions for PWDs in identified posts, later supported by Siddaraju.
Siddaraju v. State of Karnataka and others	SLP.No.24994 of 2016 dated 3.02.2017; 2020 (1) KHC 609	Positive	Larger Bench affirmed Rajeev Kumar Gupta’s approach; the present judgment relies on this broader jurisprudence to uphold disability-based promotion reservations.

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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 K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** **WA.No.1335 OF 2018** **JUDGMENT IN WPC 37335/2017 OF HIGH COURT OF KERALA DATED 12.3.2018** ## **APPELLANT/S:** **1 KERALA STATE ELECTRICITY BOARD LTD REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM DIST.- 695004.** **2 THE CHIEF ENGINEER HRM KERALA STATE ELECTRICITY BOARD LTD., VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM DIST.- 695004.** **BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** ## **RESPONDENT/S:** **BABU K.P SUB ENGINEER (ELECTRICAL), KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB DIVISION, THALASSERY - 670101, RESIDING AT KATILPARAMBATH, P.O. PARAL, THALASSERI, KANNUR DISTRICT - 670671.** **R1 BY ADV. SRI.P.M.PAREETH(B/O) R1 BY ADV. PAREETH P.M.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-022020, ALONG WITH WA.1563/2018, WA.1605/2018, THE COURT ON 06-02-2020 DELIVERED THE FOLLOWING:** W.A Nos. 1335, 1563 & 1605 of 2018 -2- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** ## **WA.No.1563 OF 2018** **JUDGMENT IN WPC 21373/2015 DATED 23-01-2018 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** - **1 THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LIMITED KERALA STATE ELECTRICITY BOARD** **LIMITED,VYDHYUTHIBHAVAN, PATTOM PALACE POST, THIRUVANANTHAPURAM-695 004.** - **2 THE SECRETARY,KERALA STATE ELECTRICITY BOARD LTD., VYDHYTHIBHAVAN,PATTOM PALACE, TRIVANDRUM DISTRICT-695 004.** - **3 THE CHIEF ENGINEER(HRM),KERALA STATE ELECTRICITY BOARD LTD., VYDHYTHIBHAVAN,PATTOM PALACE , TRIVANDRUM DISTRICT-695 004.** - **4 THE CHIEF ENGINEER(C-1 AND P),KERALA STATE ELECTRICITY BOARD LTD., VYDHYUTHIBHAVAN,PATTOM PALACE, TRIVANDRUM DISTRICT-695 004.** **BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECT** **RESPONDENT/S:** W.A Nos. 1335, 1563 & 1605 of 2018 -3- - **1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE SECRETARY TO GOVERNMENT OF KERALA, MINISTRY OF PHYSICALLY DISABLED PERSONS,SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 THE POWER SECRETARY, POWEER DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **4 XAVIER JOSE K., SUB ENGINEER(CIVIL), KERALA STATE ELECTRICITY BOARD,** - **5 K.P.RAJU, SUB ENGINEER(CIVIL),KERALA STATE ELECTRICITY BOARD LTD., GENERATION CIRCLE, THRISSUR DISTRICT.** - **6 SEETHA M.G. SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., GENERATION CIRCLE,THRISSUR DISTRICT.** - **7 RENUKA T.K., JUNIOR FAIR COPY ASSISTANT, KERALA STATE ELECTRICITY BOARD LIMITED.INVESTIGATION CIRCLE, THRISSUR DISTRICT.** - **8 SATHIAN P.V., SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD., INVESTIGATION CIRCLE,THRISSUR DISTRICT.** - **9 SUBHASH M.D., SENIOR ASSISTANT,** W.A Nos. 1335, 1563 & 1605 of 2018 -4- **KERALA STATE ELECTRICITY BOARD LIMITED, TRANSMISSION CIRCLE, THRISSUR DISTRICT.** **10 RADHA N., SENIOR ASSISTANT.KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL CIRCLE,THRISSUR DISTRICT.** **R1-3 BY GOVERNMENT PLEADER (BY ORDER) R4-10 BY ADV. SRI.K.M.JAMALUDHEEN R4-10 BY ADV. SMT.LATHA PRABHAKARAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-022020, ALONG WITH WA.1335/2018, WA.1605/2018, THE COURT ON 06-02-2020 DELIVERED THE FOLLOWING:** W.A Nos. 1335, 1563 & 1605 of 2018 -5- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947** **WA.No.1605 OF 2018** **AGAINST THE JUDGMENT IN WPC 18214/2017 DATED 23-01-2018 OF HIGH COURT OF KERALA** ## **APPELLANT/S:** - **1 KERALA STATE ELECTRICITY BOARD LTD, VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM DIST-695004.** - **2 THE CHIEF ENGINEER HRM, KERALA STATE ELECTRICITY BOARD LTD, VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM DIST-695004.** - **3 THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD, VYDHYUTHI BHAVAN, PATTOM, TRIVANDRUM DIST-695004.** - **4 THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, IRINJALAKKUDA-680125.** W.A Nos. 1335, 1563 & 1605 of 2018 -6- **BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** ## **RESPONDENT/S:** - **1 LITTY. T.L, W/O BENNY T.O, THEVALAPPALLY HOUSE, KOTTAMI PO, CHARUPADY-680732.** - **2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,POWER DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** - **R1 BY ADV. G.KRISHNAKUMAR(B/O) R2 BY GOVERNMENT PLEADER(B/O)** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-022020, ALONG WITH WA.1335/2018, WA.1563/2018, THE COURT ON 06-02-2020 DELIVERED THE FOLLOWING:** W.A Nos. 1335, 1563 & 1605 of 2018 -7- ## **JUDGMENT** Dated this the 6[th] day of February, 2020 ## **K.VINOD CHANDRAN, J.** Writ appeals are from different judgments of the same Single Judge; on an identical issue. The respondents are persons with disabilities, specifically locomotor disabilities. WA No.1335 of 2018 is concerned with the respondent, who is an employee of the Kerala State Electricity Board [KSEB] claiming promotion to the post of Assistant Engineer (Electrical). W.A.No.1605 of 2018 again concerned with the respondent who has locomotor disability who claims promotion either to the post of Assistant Engineer (Electrical) or Assistant Engineer (Civil) having acquired W.A Nos. 1335, 1563 & 1605 of 2018 -8- the essential qualification for both. W.A.No.1563 of 2018 is with respect to the claim of respondents 4 and 5 for the post of Assistant Engineer (Civil). Respondents 6 and 10 have already got the relief of promotion to the post of Senior Superintendent. The 7[th] respondent does not have a valid claim since she seeks promotion to the post of Fair Copy Assistant which is not an identified post, for the disabled. Respondents 8 and 9 are said to be due for promotion on the basis of disability, immediately. Hence what remains to be dealt with is only the case of respondents 4 and 5 in that Writ appeal. 2. The issue is common and the respondents are claiming promotion on the basis of their locomotor disability. The fact of disability is admitted and the Assistants Engineer (Electrical) and (Civil) posts being identified for filling up with persons with disability (PWD) is also admitted. W.A Nos. 1335, 1563 & 1605 of 2018 -9- 3. The question as to whether there could be reservation in promotion as had been interdicted in _**Indira**_ was _**Sawhney v. Union of India [(1992) Supp.3 SCC 217]**_ distinguished insofar as the persons with disabilities in _**Rajeev Kumar Gupta and others v. Union of India [(2016) 13 SCC 153]**_ . Later, another Division Bench of the Honourable Supreme Court had doubted _**Rajeev Kumar Gupta**_ which now has been affirmed by a larger Bench in _**Siddaraju v. State of Karnatka and others (SLP.No.24994 of 2016 dated 3.02.2017) [2020 (1) KHC 609]**_ 4. As of now, there can be no dispute raised as to the persons with disability being entitled to reservation for promotion to the posts identified for them. 5. The further contention by the KSEB is that though the Assistant Engineers post is identified, there are already 22 persons with disabilities continuing there. However, as W.A Nos. 1335, 1563 & 1605 of 2018 -10- rightly noticed by the learned Single Judge, none of them were promoted in the 3% quota. They were promoted to that post as per their rightful due similar to the other employees. The promotion having not been by reason of a reservation granted under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 necessarily the 3% vacancy in the cadre has to be satisfied. As of now, we find only 4 of the respondents claim such promotion. In such circumstances, KSEB is obliged to grant them promotion, if there are no seniors in the same category who are also entitled to claim promotion to the reserved vacancies by reason of their disability; which shall be done with immediate effect. Learned Standing Counsel contends before us that there are no vacancies, as of now. If there are no vacancies, necessarily, supernumerary posts have to be W.A Nos. 1335, 1563 & 1605 of 2018 -11- created and the four respondents promoted therein, which supernumerary post will be adjusted against the regular arising vacancies thereafter. Writ appeals would stand rejected with the above direction. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN JUDGE** Scl/06. 02.2020 xx