Dismissed

Dineshan E. v. State of Kerala

Kerala HC10 Jan 2020WA/2045/2018

Case brief

AI extract

What is this about?

The Court dismissed this Writ Appeal challenging a judgment that refused notional retrospective benefit of appointment. The bench held that since the appellant failed to seek this specific relief in the first litigation, they cannot claim it later when third-party rights and seniority of others are involved.

What did the court decide?

The Writ Appeal is dismissed with each party to suffer costs.

Dineshan E. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 10TH DAY OF JANUARY 2020 / 20TH POUSHA, 1941

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W.A.No.2045 OF 2018

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AGAINST THE JUDGMENT IN W.P(C)NO.12011/2018(B) DATED 02/08/2018 OF HIGH COURT OF KERALA

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APPELLANT/ PETITIONER:

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DINESHAN E., AGED 46 YEARS, S/O. K.C.K. NAMBIAR, V.V. HOUSE, VATTOLI P.O., CHITTARIPARAMABA, KANNUR DISTRICT - 670 650

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BY ADV. SRI.P.M.PAREETH

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RESPONDENTS/ RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE KERALA STATE ELECTRICITY BOARD LTD., REPRESENTED BY ITS SECRETARY, VIDHYTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 001.

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3 THE CHIEF ENGINEER (HRM), THE KERALA STATE ELECTRICITY BOARD LTD., VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 001.

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4 THE KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM PALACE P.O., THIRUVANANTHAPURAM - 695 001.

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R1 BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH. R2-R3 BY SMT.ANEETHA A.G., SC, KSEB LIMITED. R4 BY ADV. P.C.SASIDHARAN, SC, PSC.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A.2045 of 2018

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K.Vinod Chandran & V.G.Arun, JJ. ---------------------------------------W.A.No.2045 of 2018

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Dated this the 10^th day of January, 2020

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JUDGMENT

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K. Vinod Chandran,J:

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The appellant/petitioner is aggrieved by the judgment of the learned Single Judge refusing to grant notional benefit of appointment from the year 2012. The contention was that if the 3% vacancies set apart for the disabled persons as mandated in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereafter referred to as “the Disabilities Act”] with effect from 1996 onwards, were reported as backlog vacancies, then necessarily the appellant would have been appointed in 2012. The learned Single Judge found that the petitioner's appointment was by virtue of Exhibit P1 judgment, which did not specifically grant him any notional retrospective benefit.

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2. On facts, it has to be noticed that the appellant, who has locomotor disability, applied for the post of Assistant Grade II/Clerk/Junior Clerk/LD Clerk/Cashier in the various State Government owned Companies pursuant to a notification issued by the Public

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W.A.2045 of 2018

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Service Commission ['PSC' for short] dated 28.03.2007. There is no dispute that the appellant was eligible to be considered under the Disabilities Act and that he was placed as rank No.70 in the rank list published on 25.08.2009. The persons upto serial No.67 in the rank list of disabled persons were advised, following the ratio of 1:1:1 between blind, deaf and orthopaedically handicapped persons. The appellant's contention in the writ petition which resulted in Exhibit P1 judgment was that if the entire vacancies were identified from the time of enactment of the Disabilities Act, then necessarily the appellant would have been advised since then there would have been more vacancies.

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3. By Exhibit P1 it was declared that the backlog vacancies from 1996 are to be filled up from the handicapped persons in the Public Sector Undertakings and Government Companies under the State Government by reserving 3% of the vacancies. The official respondents were also directed to report all existing vacancies in the identified cadre so as to enable the 3^rd respondent therein to advise suitable candidates from the list brought out. It is pertinent that the appellant either had not sought for or if sought for, the Court thought it fit not to grant a

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W.A.2045 of 2018

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notional promotion; as held by the learned Single Judge.

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4. As far as the necessity to identify the posts and appoint persons with disabilities to the 3% vacancies from the time of enactment of the Disabilities Act, there cannot be any dispute. It has been so declared by the Hon'ble Supreme Court in Govt. of India v. Ravi Prakash Gupta [(2010) 7 SCC 626 ]. The specific contention of the learned Counsel for the appellant is that in the said case the Delhi High Court had granted the benefit of appointment to the petitioner therein and seniority was also directed to be granted along with his batch mates who took the examination in the year 2006. In the present case, the appellant's contention is that if the vacancies were reported in time, after rank No.67 was appointed immediately thereafter the appellant would also have been appointed. He, hence, seeks notional benefits from 2012 while he was actually appointed in 2017 after further litigation in the nature of a contempt proceeding.

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5. The learned Standing Counsel for the Board, however, submits that on the declaration made in Exhibit P1 judgment, the Board had identified 48 backlog vacancies and had reported the vacancies, to which the appellant was appointed. There was no vacancy available at the time of

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W.A.2045 of 2018

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notification, since the posts were not identified. We are unable to countenance the aforesaid submission of the Board, since identification of posts was inconsequential for the purpose of carrying out the provisions of the Disabilities Act as found by the Hon'ble Supreme Court in Ravi Prakash Gupta . However, there is a distinction insofar as the relief granted in Ravi Prakash Gupta and that sought

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in the present case, which is a subsequent litigation.

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6. In Ravi Prakash Gupta the claim was that though

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there were five identified vacancies available in the visually handicapped category, there was appointment made only of one. Ravi Prakash Gupta was in the list, being a visually handicapped person, who was not appointed. We have also looked at the Delhi High Court judgment, in which their Lordships have noticed the response received under the Right to Information Act and found seven backlog vacancies from the year 1996, capable of being filled up from the subject list. It was in such circumstance that there was a direction issued to appoint the writ petitioner and also directed notional seniority along with his batch mates. This was affirmed by the Hon'ble Supreme Court.

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7. In the present case, similar to Ravi Prakash Gupta, the appellant had agitated the cause once in a writ

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W.A.2045 of 2018

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petition, in which Exhibit P1 judgment was passed. The prayer for adjustment from the date on which normally he could have been advised, if the identification of posts and availability of backlog vacancies were made at the proper time; was a prayer available to the appellant at that point of time itself. The appellant did not seek for such a prayer before the learned Single Judge. In such circumstance, he cannot be heard to seek such a prayer in a subsequent litigation after his appointment has been made, which, at that stage, involves third-party rights.

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8. We perfectly understand the angst of the appellant insofar as having to wait for almost five years to get appointment from a rank list published in the year 2009; five years being from the year 2012, in which year he would have normally got an appointment if the backlog vacancies were identified earlier. But, however, the appellant having not sought for that prayer in the first litigation initiated, he cannot seek it in a subsequent litigation. We also have to notice that by the time the present litigation was filed, the appellant had joined the respondent Board, wherein there would have been many seniors who got appointment in the very same selection or from subsequent selections. They had continued with their

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W.A.2045 of 2018

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seniority on the respective dates and to disturb them the appellant would have to impleaded such affected persons. Hence, on the ground of the appellant having not sought the relief at the first instance when he was entitled to seek for that relief and for the reason that the affected parties are not impleaded in the present writ petition, we refuse to interfere with the judgment of the learned Single Judge.

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The Writ Appeal would stand dismissed, leaving the parties to suffer their respective costs.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/V.G.ARUN JUDGE

Vku/-

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W.A.2045 of 2018

APPENDIX

APPELLANT'S ANNEXURE:

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ANNEXURE A1

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A TRUE PHOTO COPY OF THE AFFIDAVIT DATED 26/04/2017 FILED BY THE KSEB IN THE CONTEMPT CASE NO.13/2015.

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[TRUE COPY]

Dineshan E. v. State of Kerala

Case brief

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Dineshan E. v. State of Kerala

Case brief

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