Point of Law: Only in those cases that the Government is of the view that the posts in the promotional cadres cannot be reserved for the PwD category due to functional or other reasons, the same cannot be used as a ruse to defeat the reservation in promotion.

JUDGMENT :

The petitioners herein are working as Senior Assistants in the Kannur University, the 2nd respondent herein. They contend that they belong to the ‘differently abled’ category and all of them are having benchmark disability of more than 40%. They have approached this Court being aggrieved by the refusal on the part of the University in granting promotion to the petitioners and in overlooking their claims.

2. Though notice was issued to the party respondents and the same was served, there is no appearance.

3. I have heard Smt. Shameena Salahudeen, the learned counsel appearing for the petitioners, Sri. I.V. Pramod, the learned counsel appearing for the Kannur University and Smt. Anima, the learned Senior Government Pleader.

4. It is submitted by Smt.Shameena Salahudeen, the learned counsel, by relying on the judgment of the Apex Court in Siddaraju v. State of Karnataka and others [2020 (1) KHC 609] that the judgment of the Apex Court in Rajeev Kumar Gupta and Others v. Union of India and Others [(2016) 13 SCC 153] was doubted by another Bench and it was referred to a Larger Bench of the Apex Court. One of the issues raised for consideration was whether persons with disabilities can be given reservation in promotion as held by the Apex Court in Rajeev Kumar Gupta (supra) and whether the same would be against the law laid down in Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217]. After considering the entire issue, the Apex court answered the reference by stating that the 2013 judgment, as clarified in National Federation of the Blind v. Sanjay Kothari, Secretary, Department of Personnel and Training [2015 (9) Scale 611] and the judgment in Rajeev Kumar Gupta (supra) will bind the Union and the State Governments and must be strictly followed. It was thus affirmed that reservation is also applicable to promotions.

5. The learned counsel would also contend that a Division Bench of this Court in O.P.(KAT)No.286 of 2015 had occasion to observe as follows:

“The only issue arising in the above case is as to whether the persons having a physical disability could be granted reservation in promotion also. The decision in Rajeev Kumar Gupta and Others v. Union of India and Others [(2016) 13 SCC 153] held that such reservation would be applicable for promotions also. Later, another Division Bench referred the matter to a Larger Bench expressing an opinion that this could go against the Larger Bench decision in Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217]. A three Judge Bench in Siddaraju v. State of Karnataka and Others [2020 (1) KHC 609] affirmed that such reservation is applicable to promotions………………”

6. The petitioners contend that they had submitted Exhibits P3 and P4 representations before the Authorities seeking implementation of the directions issued in Siddaraju (supra). However, the respondents refused to heed the said request.

7. Eight posts of Assistant Section Officers fell vacant during different dates in the year 2019 which led the petitioners to submit Exhibit P5 representation before the respondents. Ignoring the request made by the petitioners, the respondents granted promotion to the respondents 5 to 12 by Exhibit P6 order. It is in the afore circumstances that the petitioners are before this Court seeking the following reliefs:

i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 4 to grant promotion to the Petitioners as Assistant Section Officers.

ii) Declare that the respondents 1 to 4 are bound to Implement Ext.P2 Judgment of the Hon’ble Supreme Court and grant reservation to the differently-abled candidates in promotions also.

iii) Set aside Ext.P6 to the extent of not including the petitioners and direct the official respondents to redraw Ext.P6 by including the petitioners.”

8. I have considered the submissions advanced and have perused the records.

9. The materials placed before this Court reveal tha