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2023 Supreme(Online)(KER) 10909
HIGH COURT OF KERALA
ALEXANDER THOMAS, C. JAYACHANDRAN, JJ
DR. B. UNNIKRISHNAN – Appellant
Versus
STATE OF KERALA – Respondent
OP(KAT) 312 2023
P.NANDAKUMAR, AMRUTHA SANJEEV, VIVEK VIJAYAKUMAR, RIYA TOMY, INDU C. SREEKUMAR
The judgment reaffirms that statutory reservations for persons with disabilities extend to promotions, necessitating compliance with established legal precedents despite previous administrative interpretations.
Headnote:
Disability - Promotion - Rights of Persons with Disabilities Act, 2016 (Sections 34) - The court interpreted Section 34 emphasizing the need for lateral reservation in promotions for persons with disabilities despite concerns over eligibility and method of appointment, ultimately ruling the prior dismissal of application as flawed.
Fact of the Case:
The petitioner, a disabled individual claiming promotion to the post of Deputy Director of Health Services, contested the dismissal of his application for lateral reservation in promotion, citing provisions of the Rights of Persons with Disabilities Act, 2016, and relevant government orders.
Issues: Whether the petitioner is entitled to claim lateral reservation in promotion to the post of Deputy Director of Health Services as a person with disabilities under the provisions of applicable laws and directives.
Ratio Decidendi: The court emphasized that the mandate of reservation for persons with disabilities encompasses both appointment and promotion, clarifying that statutory provisions compel governments to ensure such reservations irrespective of recruitment methodology, particularly when previous roles support eligibility for the promoted position.
Final Decision: The court set aside the Tribunal's decision, remitting the application for promotion back to the respondents for reconsideration in light of the established legal principles.
JUDGMENT
Alexander Thomas, J.
This original petition is directed against the impugned Ext.P1 final order, rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench, on 26.06.2023, dismissing the instant original application, O.A. No.2147/2022, for the reasons stated therein. The sole petitioner herein is the sole applicant in the original application and the respondents herein are the respondents in the original application.
2. Heard Sri.P. Nandakumar, learned counsel appearing for the petitioner and Sri.Asok M. Cherian, learned Additional Advocate General, instructed and assisted by Smt.Sabeena P. Ismail, learned Government Pleader, appearing for the respondents.
3. The prayers in the instant Ext.P2 original application, O.A.
No.2147/2022, are as follows:-
“a. Direct the 1st respondent to withdraw the baseless and vexatious order, order No. G.O. (Rt) No.2854/2022/H&FWD dated 02.12.2022, Annexure A15 which is against the previous Government Order G.O. (P) No.5/2022/SJD dated 15.07.2022, various Honourable Supreme Court Judgments, Honourable High Court of Kerala Judgments and The Order of the Honourable Kerala Administrative Tribunal and give strict direction to promote the applicant to Deputy Director /
Additional Director of Health Services.
b. Direct the 1st respondent to pay the costs to the applicant for his mental stress and intentionally frustrating the rights of disabled person by blatantly ignoring the provisions of the relevant statutory enactment, Various Honourable Supreme Court Judgments, Honourable High Court of Kerala Judgments and Order of the Honourable Kerala Administrative Tribunal.
c. To grant such other reliefs as may be prayed for in the circumstances of the case.”
4. The Tribunal, after hearing both sides, has rendered the impugned Ext.P1 final verdict dismissing the O.A. on the ground that Sub-clause (ii) of Clause 8 of Anx.A6 G.O.(P) No.5/22/SJD dated 15.07.2022, categorically provides that persons with disabilities shall be provided reservation for promotion in those posts, where appointments to the post is not only by direct recruitment but also by promotion (from the feeder category). That, in the instant case, the method of appointments to the post of Deputy Director of Health Services is solely by promotion and therefore, it will not fulfill the norms as per Clause 8 (ii) of Anx.A6 G.O., and hence the claim of the petitioner for promotion on the basis of lateral reservation in the differently abled quota, in terms of Sec.34 of the Rights of Persons with Disabilities Act, 2016 cannot be granted. It is on this basis that the O.A. has been dismissed.
5. According to the petitioner, he is a person who is suffering from disability, as understood in the above Central Act, with locomotor disability of 40%, and is now holding the post of Deputy Superintendent in the cadre of Assistant Director of Health Services. His next promotion post is the Deputy Director of Health Services and the method of appointment is solely by promotion from the feeder category of Assistant Director, etc. That, the Apex Court has already held, in unambiguous and categorical terms, that the action on the part of the authorities of the State of Kerala, in not granting lateral reservation to persons with disabilities, in accordance with Sec.34 of the Central Act, is illegal and ultravires, etc. This position of the matter has been laid down by the Apex Court in decisions as inState of Kerala & Others v. Leesamma Joseph [ (2021) 9 SCC 208 ]. It is profitable to refer to para Nos.30 & 31 ofLeesamma’s case supra, which read as follows:-
“30. Mr Gaurav Agrawal, learned Amicus Curiae through the note also pointed out different views of the High Court:
30.1. Poonam Manchanda v. Union of India [Poonam Manchanda v. Union of India, 2019 SCC OnLine P&H 2710]—The Punjab and Haryana High Court while dealing with the case of the petitioner having 70%
disability noticed that she had been appointed as Assistant Accounts Officer in 1999 and prom
