IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 861 of 2006(C) ------------------------------------- PETITIONER(S): ------------------------- SURESH K.K., S/O. N. KRISHNAN NAIR, KUNHIKOZHUMMAL HOUSE, CHUZHALI P.O., KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): ---------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.861/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LETTER DTD. 7/06/2005 ISSUED BY THE PSC TO THE PETITIONER. P2: COPY OF THE REPLY DTD. 17/12/2005. P3: COPY OF THE CERTIFICATE DTD. 31/05/1999 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, SREEKANDAPURAM. P4: COPY OF THE NOTIFICATION FOR CATEGORY NO.168/2000 PUBLISHED IN KERALA GAZETTE DTD. 26/09/2000. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. ------------------------------ W.P.(C) No.861 OF 2006 ------------------------------- Dated this the 16th day of September, 2010 J U D G M E N T The petitioner is a physically handicapped person. He was advised by the Kerala Public Service Commission for appointment to the post of Meter Reader/Spot Biller. Ext.P1 is the advice memo. But the Board refused to appoint the petitioner on the ground of the petitioner’s disability. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) to issue a writ of mandamus directing the respondents to appoint the petitioner as a Meter Reader/Spot Biller in KSEB on the basis of Ext.P1 advice forthwith; ii) to declare that the petitioner is eligible to be appointed as a Meter Reader/Spot Biller in KSEB” 2. A counter affidavit has been filed on behalf of the first respondent, in which the contention of the Board is as follows, contained in paragraphs 4 to 6: “4. It is submitted that the petitioner in the above Writ Petition is a candidate, who was included in the rank list published for the post of Meter Reader. The petitioner was advised for W.P.(c)No.861/06 2 appointment in the Board as Meter Reader vide letter No.R1B (2) 12270/04/GW/147 dated 07.06.2005 of the Kerala Public Service Commission. It is submitted that, as per Clause 2(a) of B.O No.RLI – 15934/73 dated 31.12.1973, which governs the age relaxation and grace marks to physically handicapped persons, for recruitment in the board, physically handicapped persons will be considered for appointment only to such posts, the duties attached to which, can be satisfactorily discharged by them. The concessions will not apply for appointment to the following posts. a. All executive posts in the Electrical & Civil branches of the Board. b. Regional Personnel Officer. c. Driver d. Sergeant e. Watchman f. Electricity Worker 5. it is submitted that, the Kerala Public Service Commission had vide letter No.GBIA (2) 74/89/CW dated 16.02.1994, sought a clarification from the Chief Engineer (Electrical General) whether the post of Lineman/Meter Reader in the Board will come under the category of Executive Post. In reply to the letter, the Chief Engineer (Electrical General) intimated the Secretary, Kerala Public Service Commission; vide letter No.EB4/80-83 dated 09.03.1994 that the post of Lineman/Meter Reader in the Board will also come under the category of Executive post. It is submitted that, Meter Reader in the KSE Board has the duty to record Meter Reading in the Consumer's premises, assess consumption, issue bill and report the Particulars of bills issued by him in the office every day. He has to visit each and every premise and complete his target prescribed for the day. This requires good physical strength, especially in hilly areas. Further, the next promotion post of the Meter Reader is Sub Engineer, which is an executive post for which physical efficiency is required. It is because of these reasons physically handicapped candidates are declared to be ineligible for the post of Meter Reader. 6. It is submitted that, as per the interim order dated 28.02.2006, this Hon'ble Court was W.P.(c)No.861/06 3 pleased to grant the interim relief prayed for, with an observation that, if the respondents have any serious objection, a counter is to be filed within 2 weeks. It is submitted that, the above direction is against the interest of the Board and therefore pray that the interim order be vacated, taking into account the facts stated in the aforesaid paragraphs. 3. I have considered the rival contentions in detail. 4. On 31.3.2006, this Court passed the following interim order: “Heard. The petitioner has been advised for appointment to the post of Meter Reader in the Kerala State Electricity Board, by Ext.P1 memo issued by the Public Service Commission. But, he was not appointed by the K.S.E.B, saying that Meter Reader is an executive post, to which a physically handicapped person cannot be appointed. Obviously, the notification did not contain any stipulation concerning physical disability. Otherwise, the P.S.C. would not have included the petitioner in the rank list. No order barring appointment of physically handicapped persons to the post of Meter Reader was brought to the notice of the P.S.C., at the time of selection. That is the reason why the petitioner found a place in the rank list, though he is physically handicapped. But, the K.S.E.B. is resisting the appointment of the petitioner, relying on an executive order issued by it on 31.12.1973. The validity of that order has to be examined vis-a-vis the provisions of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. Pending examination of the matter, the 2nd respondent is directed to appoint the petitioner as Meter Reader/Spot Biller in the next arising vacancy. If the petitioner is not able to discharge the functions of Meter Reader/Spot Biller effectively, for reason of his physical disability, the respondents can move for vacating the interim order”. I am of opinion that even if there is such a Board order that is not in consonance with the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) W.P.(c)No.861/06 4 Act. In the counter affidavit filed, the respondents have no case that the petitioner is not able to discharge the function of a Meter Reader/Spot Biller effectively, for reason of his physical disability. This Court, in the interim order, had given permission to the Board to move for vacating the interim order, if the petitioner is not able to discharge of the functions of Meter Reader/Spot Biller effectively, for reason of his physical disability. Apart from stating that such direction is against the interest of the Board, they have not stated that the petitioner is not able to discharge the duties and functions of Meter Reader/Spot Biller effectively, for reason of his physical disability. That being so, I am not inclined to accept the contentions of the first respondent in the above matter. Therefore, I confirm the appointment of the petitioner by virtue of the interim order as proper and valid and the petitioner shall be allowed to continue in service as if he has been validly appointed pursuant to the advice made by the PSC. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(c)No.861/06 5 W.P.(c)No.861/06 6