IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 17404 of 2005(V) --------------------------------------- PETITIONER: ------------------- P.M. OOMMAN PANICKER, SENIOR ASSISTANT, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, KOTTARAKKARA. BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE, ADV. MR.MILLU DANDAPANI. RESPONDENTS: ------------------------ 1. KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, KOTTARAKKARA. R1 TO R4 BY MR. C.K. KARUNAKARAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009, ALONG WITH W.P.(C). NOS. 34028/2005 & 5370/2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17404/2005-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DISABILITY CERTIFICATE DT.D 03/08/1983 OF THE PETITIONER. EXT.P.2: COPY OF THE ORDER, G.O.(MS).NO.27/03/SWD DTD. 23/06/2003. EXT.P.3: COPY OF THE REPRESENTATION OF THE PETITIONER BEFORE R.2. ON 29/08/2003. EXT.P.4: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DTD. 06/11/2003 IN W.P.(C).34895/2003-D. EXT.P.5: COPY OF THE ORDER, G.O.(FB) NO. 428/2004/ESTT.4319/2001, DTD. 13/02/2004. EXT.P.6: COPY OF THE ORDER NO. LA (S) IV/19417/200 DTD. 04/03/2004 OF R.2. EXT.P.7: COPY OF THE COUNTER AFFIDAVIT OF THE R.1. IN W.P.(C).16255/2004 DTD. 27/07/2004. EXT.P.8: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT, IN W.P.(C) 16255/2005. EXT.P.9: COPY OF THE LETTER NO. EB1/INCUMBENCY/04/2578 DTD. 08/03/2004 OF THE R.4. TO THE R.3. EXT.P.10: COPY OF THE REPRESENTATION OF THE PETITIONER TO THE R3 DTD. 22/01/2005. EXT.P.11: COPY OF THE LETTER NO. DY. CE.(HRM-1) CR-SA/03094 DTD. 13/05/2005 OF THE R.3. TO THE OFFICE OF R.4. EXT.P.12: COPY OF THE LIST SHOWING PROMOTION OF PERSONS TO THE POST OF SENIOR SUPERINTENDENTS. EXT.P.13: COPY OF THE ORDER NO. EB.3(A)2222/2005 DTD. 25/08/2005. EXT.P.14: COPY OF THE LONG TERM SETTLEMENT, 2007, AS PER ORDER NO. B.O. (FB) NO. 628/2007/PSI/101/2006 DTD. 19/03/2007. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- WPC. Nos. 17404 & 34028/2005 , & 5370 of 2006 ---------------------------------------- Dated, 12th day of August, 2009 JUDGMENT As the subject matter of these three Writ Petitions is same and the legal questions are also identical, namely, promotion of physically handicapped persons in the Kerala State Electricity Board, these writ petitions are being heard together and disposed of by this common judgment. 2. The petitioner in WPC No.17404 of 2005 joined in service of the K.S.E.Board as Junior Assistant/Cashier and presently working as Senior Assistant with effect from 16.10.98. The petitioner is a physically handicapped person, and, as evidenced by Ext.P1, he is having 50% permanent partial disability. The next promotion post is Senior Superintendent and though he is entitled for promotion, the Board has not given him the due promotion and hence, he approached this Court. The WPC Nos.17404, 34028/05 & 5370/06 -:2:- petitioner in WPC No.34028/2005 is also a physically handicapped person and, as evidenced by Ext.P1, his partial disability is assessed to be 40%. He is also working as Senior Assistant with effect from 18.10.2000, and according to him, his promotion to the post of Senior Superintendent is due and the Board has denied denied the promotion. The petitioner in WPC No.5370/2006 is also working as Senior Assistant and he is also a physically handicapped person with 60% disability. According to this petitioner also, the Board denied promotion to the next post, namely, Senior Superintendent, in spite of his right to promotion. 3. The Board has filed counter affidavit in all these cases resisting the prayer of the petitioner for promotion to the post of Senior Superintendent. 4. I have heard Smt. Sumathi Dandapani, the learned Senior Counsel appearing for the petitioner in WPC No.17404/2005; Sri P.N. Santhosh, the learned counsel appearing for the petitioner in WPC No.34028/2005 and WPC Nos.17404, 34028/05 & 5370/06 -:3:- Sri N.N.Sugunapalan, the learned Senior counsel appearing for the petitioner in WPC No.5370/2006. So also, Sri C.K. Karunakaran, the learned Standing Counsel appearing for the KSE Board in WPC No.17404/2005 and Sri Ashok.M Cherian, Standing counsel appearing for the Board in WPC Nos. 34028/2005 and 5370/2006. 5. The contentions raised by the counsels for the petitioners in these three writ petitions are more or less same. According to the counsels, the Board has adopted the Government order, i.e., G.O.(MS) No.27/03/SWD dated 23.6.2003 as per the decision of the Board meeting held on 22.1.2004 and based upon such decision, the Board has issued Ext.P2 dated 13.2.2004. As per the said order of the Board, 3% of the vacancies in the KSE Board in the posts declared to be suitable for such appointment as per Annexure to the Government Order, will be reserved for appointment to Physically Handicapped persons. In the above order, the Board, as second item, it is WPC Nos.17404, 34028/05 & 5370/06 -:4:- specifically indicated that 3% vacancies in the post of Senior Superintendent will be reserved for appointment of Physically Handicapped persons. The case of the counsels for the petitioners is that though the Board has taken a policy decision to promote persons belong to Physically Handicapped category, to the reservation quota, the same has not been implemented. In support of their contention, they very much relied upon the provisions namely, Sections 32, 33 and 36 of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (hereinafter referred for short as `Act 1995' only). It is also the case of the counsels that in the light of the above Act, the Central Government has implemented the decision in various departments to grant promotion of persons belong to that particular category to the higher post reserved for them. Aggrieved by the inaction on the part of the Board, they initially approached the Board by filing representations after representations and as there was no favourable WPC Nos.17404, 34028/05 & 5370/06 -:5:- order, the petitioners approached this Court. 6. The petitioner in WPC 17404/2005, approached this Court initially by filing WPC No.34895/2003 which resulted in Ext.P4 judgment. Thereafter, he again approached this Court by filing WPC No.16255/2004 which resulted in Ext.P8 judgment. Ext.P7 is the counter affidavit filed by the Board in that writ petition, in which it is specifically stated that the Board had decided in principle to reserve 3% vacancies in the post of Senior Superintendent for appointment of physically handicapped candidates. But the procedure and mode of appointment are not finalised and process is underway. Ext.P7 counter affidavit is dated 27.7.2004. On the basis of the said counter affidavit, this Court by Ext.P8 judgment, disposed of WPC No.16255 of 2004. In Ext.P8, it is specifically captioned the stand taken by the Board. In Ext.P8 judgment, it is observed as follows: “Government's approval as well as the concurrence from the Public Service Commission have to be obtained for completing WPC Nos.17404, 34028/05 & 5370/06 -:6:- the formalities. It is submitted that thereafter the claims of the petitioner along with the persons, who might be similarly situated, will be examined and without delay final orders will be passed, taking notice of the policy decision which has already been taken.” Thereafter, this Court again observed: “Even though the petitioner submits that a time limit has to be fixed, since the matter is being processed after concurrence from the PSC as well as from the Government, it will not be appropriate to set as dead line”. Thereafter this Court further made clear that “if there is any inordinate delay, the petitioner will be at liberty to approach this court for appropriate follow up orders”. Ext.P8 judgment is dated 6.1.2005. As no order is passed by the Board in terms of the very undertaking made before this Court, the petitioner preferred the present writ petition. The learned Senior Counsel for the petitioner pointed out that the Board, as evidenced by Clause 32 of Ext.P14 Settlement, has also decided and taken a WPC Nos.17404, 34028/05 & 5370/06 -:7:- decision to implement the reservation for physically handicapped persons. Clause 32 of Ext.P14 settlement reads: “32. Special promotion rules to physically handicapped employees in 3% quota will be implemented by the Board after identifying the eligible categories”. The learned counsel relying on the decision of this court reported in Ratheesh Babu v. U.G.C (2004 (3) KLT 158), submitted that though Ext.P14 is dated 19.3.2007, nothing is materialised. The learned Senior Counsel for the petitioner submitted that though the petitioner's right to promotion was accrued as early as in 2004, no order is given promoting him to the next post, i.e. Senior Superintendent, in spite of the undertaking made by the Board before this Court. It is also pointed out that, in the meanwhile, the Board has issued orders promoting persons to the post of Senior Superintendent on two occasions. Exts.P11 and P13 are produced to substantiate WPC Nos.17404, 34028/05 & 5370/06 -:8:- the above contentions. Therefore the counsel stressed the urgency and necessity of an order giving promotion to the petitioner to the post of Senior Superintendent. 7. The learned counsel for the petitioner in WPC No.34028/2005 submitted that the only way of appointment to the post of Senior Superintendent in the Board is by way of promotion as the Board is following the K.S. & S.S.R, of which, Rule 2 Sub-rule 11 mandate that the post shall be filled up by appointment by way of promotion. It is the contention of the learned counsel that though the Board has adopted the Government Order, which I mentioned earlier, and took a policy decision to implement the reservation much earlier, so far, the same has not been implemented. The learned counsel invited my attention to the decision of the Apex Court in Manjit Kaur v. State of Punjab (AIR 1987 SC 1070), wherein the Apex Court has observed: “The Government of India and various State Governments decided, among other things, to make WPC Nos.17404, 34028/05 & 5370/06 -:9:- suitable provision for reservation of posts in Government service for physically handicapped persons. But, apparently, it is one thing to express a determination to do a thing and another to do it. It appears there is always a gap between pronouncement and performance.” According to the learned counsel for the petitioner, in the present case also, though the decision and policy was taken much earlier, the same has not been implemented so far, but, in the meanwhile, other incumbents including juniors were already given due promotion and the inaction on the part of the Board in not giving promotion to the petitioner adversely affected his service career. 8. The learned counsel for the petitioner in W.P.C.No.5370/2006 also highlighted the arbitrary and illegal approach of the Board and denying the promotion to the petitioner. 9. The Standing Counsel for the KSE Board, though have taken different contentions in the counter affidavit, submitted that in the light of the judgment of this WPC Nos.17404, 34028/05 & 5370/06 -:10:- Court in WPC No.23209/200, steps have already been taken and Expert Committee has also been constituted and therefore, the petitioners' claim can be considered after the categories of posts are identified by the Expert Committee. The Standing Counsel for the Board Categorically submitted that the petitioner's claim can be considered only with effect from the date of 2007 Settlement. As there is no further argument against the claim of the petitioners, I am of the view that without going into the details of the contentions advanced by both the counsel for the petitioner's as well as the counsel for the respondent/Board, I am of the view that these writ petitions can be disposed of with certain directions to the KSE Board. 10. Accordingly, these writ petitions are disposed of with the following directions: i) As the Expert Committee has already been constituted, there will be a direction to the KSE Board to finalise the process of identifying the promotion post which reserved for promoting the petitioners and WPC Nos.17404, 34028/05 & 5370/06 -:11:- similarly situated persons, within two months from today. ii) On completing the process of identifying promotion post within the above stipulated time, the grievance of the petitioners shall be considered within one month thereafter and appropriate orders shall be issued by the KSE Board. iii) At the time of passing orders as per the second direction, the Board shall also consider the claim of the petitioners with respect to the seniority, considering the fact that they were agitating the issue when their promotion became due. The Writ Petitions are disposed of with the above direction. V.K.MOHANAN, JUDGE kvm/- WPC Nos.17404, 34028/05 & 5370/06 -:12:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..