Xavier Jose.K and others v The State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 23RD DAY OF JANUARY 2018 / 3RD MAGHA, 1939 WP(C).No. 21373 of 2015** ## **PETITIONER(S)** **------------** - **1 XAVIER JOSE.K,** **SUB ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD LIMITED, INVESTIGATION CIRCLE, THRISSUR DISTRICT. 2 K.P.RAJU, SUB ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD LIMITED, GENERATION CIRCLE, THRISSUR DISTRICT.** - **3 SEETHA.M.G, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LIMITED, GENERATION CIRCLE, THRISSUR DISTRICT.** - **4 RENUKA T.K, JUNIOR FAIR COPY ASSISTANT, KERALA STATE ELECTRICITY BOARD LIMITED, INVESTIGATION CIRCLE, THRISSUR DISTRICT.** - **5 SATHIAN.P.V, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LIMITED, INVESTIGATION CIRCLE, THRISSUR DISTRICT.** - **6 SUBHASH.M.D, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LIMITED, TRANSMISSION CIRCLE, THRISSUR DISTRICT.** - **7 RADHA.N, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LIMITED, ELECTRICAL CIRCLE, THRISSUR DISTRICT.** **BY ADVS.SRI.K.M.JAMALUDHEEN** **SMT.LATHA PRABHAKARAN** **TS** ## **WP(C).No. 21373 of 2015 (V) --------------------------** ## **RESPONDENT(S): --------------** **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, POWER DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **4.THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVAN, PATTOM PALACE POST, THIRUVANANTHAPURAM 695 004.** - **5.THE SECRETARY, KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM 695 004.** **6.THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM 695 004.** **7.THE CHIEF ENGINEER (C-I&P), KERALA STATE ELECTRICITY BOARD LIMITED, VYDHYUTHI BHAVAN, PATTOM PALACE, THIRUVANANTHAPURAM 695 004.** **R1 TO R3 BY SENIOR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R4 TO R7 BY ADV. SRI.K.S.ANIL, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 21373 of 2015 (V)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **P1- TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER** **P2- TRUE COPY OF THE B.O.(FB) NO.628/2007/PSI/101/2006ED 19.3.2007** **P3- TRUE COPY OF THE RELEVANT PAGES OF THE MEMORANDUM OF SETTLEMENT DATED 28.2.2007** **P4- THE COPY OF JUDGMENT OF THIS HONOURABLE COURT IN WRIT PETITION NO.22243/2009 DATED 2.2.2010** ## **P5- THE COPY OF THE ORDER OF THE RESPONDENTS DATED 12.5.2010** **P6- THE COPY OF THE ORDER OF THE RESPONDENT BOARD DATED 1.6.2010** **P7- THE COPY OF THE REPRESENTATION OF THE 1ST PETITIONER DATED 18.2.2015** **P8-THE COPY OF THE REPRESENTATION OF THE 1ST PETITIONER DATED 24.2.2015** **P9-THE COPY OF THE REPRESENTATION OF THE 1ST PETITIONER DATED 24.2.2015** **P10- THE COPY OF THE ORDER OF THE RESPONDENTS DATED 6.5.2015** - **P11- TRUE COPY OF JUDGMENT OF THIS HONOURABLE COURT IN WRIT PETITION NO.17404/2005 DATED 12.8.2010** - **P12- THE COPY OF JUDGMENT OF THIS HONOURABLE HIGH COURT OF BOMBAY IN PUBLIC INTEREST LITIGATION 106/10 DATED 4.12.2013** - **P13:-TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 22.11.2016 IN WPC.NO.23104/2016.** - **P14:- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 15.6.2017 IN W.A.NO.388/2017.** ## **TS** ## **WP(C).No. 21373 of 2015 (V)** ## **--------------------------** - **P15:- TRUE COPY OF THE LETTER DATED 29.7.2017 ISSUED BY BOARD TO THE CHIEF ENGINEER.** - **P16:- TRUE COPY OF THE LETTER DATED 265.9.2017 ISSUED BY THE CHIEF ENGINEER.** ## **RESPONDENT(S)' EXHIBITS - NIL** - **------------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.21373 of 2015** **-------------------------------------** Dated this the 23[rd] day of January, 2018 ## **J U D G M E N T** Petitioners 1 and 2 are Sub Engineers (Civil). Petitioners 3 and 5 to 7 are Senior Assistants and the 4[th] petitioner is Junior Fair Copy Assistant in KSEB Ltd. All of them are physically handicapped. All of them got regularized in the respective posts on account of their physical disability. In this writ petition, the petitioners claim promotion from the respective posts under the 3% quota for physically handicapped, as provided under Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Petitioners pointed out that as per Ext.P3 settlement, Special Promotion Rules to physically handicapped employees in 3% quota are to be implemented by the Board after identifying the W.P.(C).No.21373 of 2015 2 eligible categories. Petitioners submit that as per Ext.P5 order issued on 12.05.2010, the aforesaid provision in the settlement was implemented identifying the posts of Senior Superintendent, Assistant Engineer (Civil) and Assistant Engineer (Electrical) for promotion against reservation for 3% physically handicapped persons. Therefore, except in the case of the 4[th] petitioner, all of them are eligible for the benefit for promotion against vacancies under the 3% quota for promotion to the post of Assistant Engineer (Civil)/Senior Superintendent. 2. Petitioners pointed out that the respondents have drawn seniority list of eligible hands in respect of certain posts, but there is no such seniority list for eligible hands in the case of Assistant Engineer (Civil). It is also pointed out that the 4[th] petitioner's post is not so far identified. 3. At any rate, in respect of all other W.P.(C).No.21373 of 2015 3 petitioners their respective posts have been identified for reservation. Petitioners also pointed out that the question whether their regularization will stand in the way of promotion was considered by this Court in W.P.(C).No.23104 of 2016, in which this Court held that such regularization will not stand in the way of granting the benefit under the Scheme by way of promotion against the reserved vacancy. In Ext.P14 judgment in W.A.No.388 of 2017, dismissing the writ appeal filed by the respondents, this Court found that in view of the judgment in **Rajeev Kumar Gupta v. Union of India** [2016 (13) SC 153] where the Supreme Court has held that the provisions of the PWD Act would apply for promotion also. Therefore, petitioners are entitled to be considered for promotion against the vacancies coming under that quota. 4. Learned counsel for the petitioner points out that 3% quota reservation is to be worked out right from the date of implementation of the PWD Act W.P.(C).No.21373 of 2015 4 in the year 1996 and promotions have to be made considering backlog vacancies also. 5. I heard the learned Standing Counsel also. 6. The learned Standing Counsel pointed out that the respondents have already taken steps in implementation of the directions in the judgment Ext.P14 as well as the settlement. Therefore, there shall be a direction to the respondents to consider the case of the petitioners for promotion in accordance with the seniority list to be published for promotion under the 3% quota, reckoning the vacancies from the year 1996 onwards. Such proceedings shall be initiated and appropriate action shall be taken for promotion of the eligible hands in accordance with law, within a period of 'three months' from the date of receipt of a copy of this judgment. Sd/- **P.V.ASHA, JUDGE.** AS