IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 33333 of 2008(R) -------------------------- PETITIONER(S): --------------- N.C.SUBHASH, CLASS IV (GRADE I), WARE HOUSE, CHERTHALA, RESIDING AT SHARAN NIVAS, THIRUMALABHAGAM P.O., THURAVOOR, CHERTHALA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.T.S.SHYAM PRASANTH RESPONDENT(S): --------------- 1. KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE CHAIRMAN, KERALA STATE WAREHOUSING CORPORATION, ERNAKULAM. ADV. SRI.MAJNU KOMATH, SC, K.S.W.C. FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J ------------------------------- W.P.(C).NO.33333 OF 2008 ------------------------------------------------- Dated this the 24th day of January, 2011. JUDGMENT The petitioner, a physically handicapped person, is a Class-IV (Grade-I) employee of the 1st respondent Kerala State Warehousing Corporation. In the Corporation a post of Go-down Keeper arose the feeder category for promotion to which is Class-IV (Grade-I). A written test was conducted, petitioner participated and petitioner succeeded in the written test. By Ext.P5 order petitioner was informed that he cannot be given promotion, insofar as with the disability of the petitioner, the petitioner would not be able to carry out the duties and responsibilities of a Go-down Keeper because of the very nature of the duties as the petitioner is unable to even walk without help. Ext.P5 is the order in that regard. Petitioner has filed this writ petition challenging Ext.P5. Subsequently, the petitioner was subjected to disciplinary proceedings. Although, the petitioner was found not guilty by the enquiry officer, the disciplinary authority W.P.(C).NO.33333 OF 2008 2 imposed the punishment of barring of one increment for one year on the petitioner, without giving the petitioner an opportunity to show cause why the disciplinary authority should not differ from the findings of the enquiry officer. Ext.P8 is the order in that regard. In appeal the Chairman of the Corporation affirmed Ext.P8 order in Ext.P3. The petitioner has got the Writ petition amended incorporating challenge against those proceedings also. The petitioner seeks the following reliefs: i) issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext.P5 and quash the same; Amended as per Order dated 15-12-2008 in I.A.15627/08. (i)(a) issue a writ of certiorari or other appropriate writ order or direction, calling for the records leading to Exts.P7 and P8 and quash the same; ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to promote the petitioner as Go-down Keeper or equivalent post forthwith on par with his admitted juniors and grant him all consequential benefits; 2. But the counsel for the petitioner submits that in view of the fact that the period of punishment is already over there is no point in considering the challenge against the order imposing punishment. He therefore, submits that the petitioner's case for promotion only need be considered. W.P.(C).NO.33333 OF 2008 3 According to the petitioner, under Section 47(2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, no promotion shall be denied to a person merely on the ground of his disability, unless the Government by notification exempts the establishment from the provisions of the said Section. Petitioner submits that the Government has not issued any notification exempting the 1st respondent from the provisions of Section 47(2). Therefore, the petitioner cannot be validly denied the promotion on the ground of his disability is the contention raised. Petitioner also relies on the decision of the Supreme Court in Union of India v. Sanjay Kumar Jain [(2004) 6 Supreme Court Cases 708] wherein inspite of the fact that the Supreme Court found that the employee in that case was visually impaired, insofar as no notification exempting establishment from the provisions of Section 47(2) has been issued, promotion cannot be denied to the employee. The petitioner therefore submits that he cannot be denied the promotion due to him W.P.(C).NO.33333 OF 2008 4 under law. 3. A counter affidavit has been filed by the respondents. It is contended that there is only one post of Go-down Keeper in the particular establishment and the duties and functions of the post is of arduous nature. Petitioner who cannot even walk without help would not be in position to carry out the duties and functions of attached to the post. Therefore, the result of promoting the petitioner would be that he will have to sit there idle and the duties of attached to the post has to be got performed by somebody else, which the 1st respondent cannot afford to. Therefore, they would seek to uphold the validity of Ext.P5 order, denying promotion to the petitioner. 4. I have considered the rival contentions in detail. Section 47 of the Act reads thus: (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service: Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits: Provided further that if it is not possible to adjust the employee against any post, he may be kept on a W.P.(C).NO.33333 OF 2008 5 supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. The respondents have no case that the Government has issued any notification exempting the establishment from the provisions of Section 47(2) of the Act. In Sanjay Kumar Jains case the situation was almost identical. The Central Administrative Tribunal directed promotion on the ground that in view of Section 47(2) promotion cannot be denied to a person who was visually impaired. The High Court affirmed that decision which was upheld by the Supreme Court in the above decision. That means, the Supreme Court has held that despite the physical disability promotion cannot be denied unless there is a notification exempting the establishment from the provisions of Section 47(2). In this case also the situation is almost identical. When the Supreme Court in identical case directed promotion not W.P.(C).NO.33333 OF 2008 6 withstanding the disability, I do not think that, I can take a different view in this case. Therefore, Ext.P5, denying promotion to the petitioner on the ground of his disability is violative of Section 47(2) of the Act. Accordingly Ext.P5 is quashed. The respondents are directed to see that the petitioner is promoted to the post of Go-down Keeper with effect from the date the same became due to the petitioner and disburse arrears of monetory benefits, as expeditiously as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. The Writ petition is allowed as above. S.SIRI JAGAN, JUDGE pm