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2018 Supreme(Online)(KER) 25039
HIGH COURT OF KERALA
P.V.ASHA, J
BABU K P – Appellant
Versus
CHIEF ENGINEERHRM – Respondent
WRIT PETITION (CIVIL) 37335/2017
Differently abled persons must be promoted according to the seniority list as long as vacancies exist under the applicable reservation quota.
Headnote:
Disability - Promotion - Kerala State Electricity Board - Seniority List - The court highlighted the need for timely promotions in accordance with disability reservations and clarified the process to fill vacancies under the 3% quota for differently abled persons, emphasizing their right to promotion.
Fact of the Case:
A Sub Engineer with 50% locomotor disability challenged the delay in his promotion to Assistant Engineer, as outlined in the seniority list from 2017. The state argued that existing appointments filled the necessary vacancies for persons with disabilities under an existing quota system.
Finding of the Court:
The court found that no Assistant Engineers had been appointed under the disability quota, thus the petitioner was entitled to promotion in accordance with the seniority list. The denial of his appointment was deemed unreasonable.
Issues: Whether the petitioner is entitled to promotion under the 3% reservation for differently abled persons despite existing appointments of others with disabilities.
Ratio Decidendi: The court held that the existence of similarly qualified individuals under the same quota does not preclude the appointment of new candidates within the defined quota for the present vacancies.
Final Decision: The respondents were directed to appoint the individuals in the seniority list without delay.
J U D G M E N T
Petitioner, who is working as Sub Engineer (Electrical), is having 50% locomotor disability. His grievance is over the delay in effecting promotion as Assistant Engineer (Electrical), from Ext.P9 list published on 04.11.2017. The Kerala State Electricity Board Limited-the respondent published that final seniority list of differently abled persons working in the cadre of Sub Engineer (Electrical) eligible for promotion as Assistant Engineers, pursuant to the direction in the judgment in W.P.(C).No.23104 of 2016. Petitioner is included therein as Sl.No.5. Out of 6 persons included in it, 5 of them are having locomotor disability and Sl.No.2 is a person with hearing impairment.
2. The respondents have filed a counter affidavit, stating that the cadre strength of Assistant Engineers is 2171 and that only 3% of the cadre strength is reserved for the differently abled persons, which is to be apportioned in the ratio of 1:1:1 between persons with low vision, hearing impairment and locomotor disability. According to the respondents, there would be a total number of 65 vacancies available for the differently abled persons and out of that the persons with locomotor disability will be eligible for appointment against 22 vacancies only. It is also their case that there are already 22 persons working in the cadre of Assistant Engineer (Electrical), having locomotor disability. According to the respondents, only 3% of those vacancies which arose after the posts were identified on 12.05.2010 as per Ext.P4 order, need be filled up by the physically disabled, that too reckoning the same on cadre strength, irrespective of the method of appointment.
3. The learned counsel for the petitioner points out that as per Exts.P10 to P14 orders, 1567 promotions have been made from among Diploma Holders against 30% vacancies of Assistant Engineers and therefore the number of vacancies admissible for them would be far more.
4. Even without going into the disputes with respect to the reckoning of the 3% on the cadre strength or vacancies or the date with effect from which the vacancies are to be computed and filled up, it can be seen that 22 vacancies are available for the persons with locomotor disability and petitioner is Sl. No.5 among them. The contention raised by the respondents is that since there are already 22 Assistant Engineers, having locomotor disability, further appointments cannot be made under this quota. But respondents do not have a case that any of these 22 persons have been appointed under the 3% quota either by direct recruitment or by way of promotion or any other scheme for the physically disabled. As long as there is no such person working as Assistant Engineer, petitioner, who is Rank No.5 in Ext.P9 list is entitled to be appointed along with others ranked above him. The fact that there are persons with disability who got appointment otherwise cannot stand in the way of appointment under the 3% quota. It is unreasonable to deny appointment to those included in Ext.P9 list even months after its publication.
Therefore, there shall be a direction to the respondents to make appointments of the persons included in Ext.P9 list without any further delay, at any rate, within a period of 'one month' from the date of receipt of a copy of the judgment.
The writ petition is disposed of accordingly.
