BEFORE THE HON’BLE KERALA ADMINISTRATIVE

TRIBUNAL AT THIRUVANANTHAPURAM

Original Application No. of 2023

Mubarak.M : Applicant

Vs.
State of Kerala and another : Respondents

SYNOPSIS

The applicant was appointed to Water Transport

Department in the post of fitter Grade-II. Later, he was
promoted to the post of Fitter Grade-I and thereafter to the
post of Mechanic with effect from 29.08.2016. It is submitted
that as per Annexure A1 Special Rules, the next promotion post
is Chargeman.

It is incidentally submitted that, as per Annexure A2 the

applicant is having 45% disability. Therefore, the applicant is
eligible for reservation for promotion to the post of Chargeman.
Therefore, the applicant has submitted repeated representations
before before the 2nd respondent for promotion by providing
reservation for Persons with Disabilities. But the same was not
considered. Thereafter the applicant has submitted a
representation before the 1st respondent for promotion by
considering the reservation for Persons with Disabilities. On the
basis of Annexure-A6, the 1st respondent was pleased to call for
a report from the 2nd repsondnet. The 2nd respondent has
submitted a report to the 1st repsondnet dated 29.07.2023.

It is submitted that, in this report, it is admitted that the

applicant is rank No.5 in the seniority list and their existing
three vacancies at present. But according to the 2 nd repsondnet
Director, 5 years practical experience in overhauling and
maintenance of Ruston/Kirlosker/Perkins type engines is
necessary. But those engines are not used in the Department
from 2000 onwards. In other words, since the Department is
not using Ruston/Kirlosker/Perkins engines, the mechanics are
not able to get experience as per special rules and therefore for
promotion, the amendment of the special rules is necessary.

It is respectfully submitted that the said interpretation of

the 2nd repsondnet is on the basis of misplaced concept of
reading rules. What it is mentioned in the Rules is 5 years
practical experience in overhauling and maintenance of
Ruston/Kirlosker/Perkins “type” engines and not 5 years
practical experience in overhauling and maintenance of
Ruston/Kirlosker/Perkins engines. Therefore, the applicant is
qualified, even though he has no experience in
Ruston/Kirlosker/Perkins, but as per his experience in such type
of Ashok Leyland engine used in the department. If, it is read as
interpreted by the 2nd respondent then the word ‘type’ will
became redundant or superfluous. It is trite to law that no
words in the Statute shall be read as redundant or superfluous.
Therefore, the interpretation given by the 2nd respondent in the
Rule is totally misplaced and denial of the promotion to the
applicant on the basis of misplaced interpretation is illegal.
Therefore, the applicant has submitted Annexure A8
representation dated 05.12.2023 pointing out the above said
anomaly in interpreting the rules in denying the promotion to
the applicant. The applicant is going to retire on 31.01.2024.
Hence, ths tribunal may be pleased to direct the 1 st respondent
to consider and pass orders on Annexure-A8 within a time
frame fixed by this Honourable Tribunal.

Dated this the 18th day of December, 2023.

Counsel for the Applicants

 BEFORE THE HON’BLE KERALA ADMINISTRATIVE
TRIBUNAL AT THIRUVANANTHAPURAM

Original Application No. of 2023

1. Particulars of the Applicant:

Mubarak.M,
Aged 55 Years, S/o.M.S.Muhammed Ismail Rawther,
Mechanic, Dock and Repair Section,
State Water Transport Department,
Alappuzha-688001.
(Residing at Valiyavila House, Manchalloor,
Kundayam.P.O, Pathanapuram,
Kollam District – 689695).

2. Particulars of the respondents:

1. State of Kerala,
Represented its Secretary,
Water Transport Department
Thiruvananthapuram, Pin-695001.

2. Director,
State Water Transport Department,
Mullackal,
Alappuzha-688011.

The address for service of Notices and processes on the

applicant is that of his counsel LINDONS.C.DAVIS,
DHANYA.E.U & VIVEK VIJAYAKUMAR, Advocates, L&D
Associates, 2nd floor, K.K. Building, Mathai Manjooran Road,
Cochin -18, Ernakulum and that of the respondents is as shown
below:

3. Particulars of the Order against which the Application

is made:

Not Applicable

4. Jurisdiction of the Tribunal:

The applicant declares that the subject matter of the case

is within the jurisdiction of this Hon’ble Tribunal.
5. Limitation:

The applicant further declares that the Application is

within the limitation period prescribed in Section 21 of the
Administrative Tribunals Act.

6. Facts of the Case:

1. The applicant was appointed to Water Transport

Department in the post of fitter Grade-II. Later, he was
promoted to the post of Fitter Grade-I. Thereafter, the applicant
was promoted to the post of Mechanic with effect from
29.08.2016 as per Order No.E1-11267/2016 dated 10.11.2016.
The applicant is continuing in the said post of Mechanic. It is
submitted that as per Special Rules for Kerala State Water
Transport Subordinate Service (Repair and Maintenance wing),
the next promotion post is Chargeman. For easy reference, true
copy of relevant pages of the Special Rules is produced herewith
and marked as Annexure-A1.

2. The qualification for the post of Chargeman by promotion

is read as follows:

(i) 5 years practical experience in overhauling and

maintenance of Ruston/Kirlosker/Perkins type
engines.
(ii) Must have 3 years’ service in the Dock and
Repair Section as Mechanic

Therefore, the applicant who is serving as Mechanic from

29.08.2016, is fully qualified for promotion with effect from
29.08.2019.
3. It is incidentally submitted that the applicant is having
45% disability. True copy of the Standing Disability Certificate
of the applicant issued from Taluk Head Quarters Hospital,
Changanaserry is produced herewith and marked as Annexure-
A2. Therefore, the applicant is eligible for reservation for
promotion to the post of Chargeman.

4. It is incidentally submitted that even though reservation

of posts with persons with disabilities towards the vacancies not
less than 3% was provided as per Section 33 of the Persons
with Disabilities (Equal Opportunities, Protection of Right and
Full Participation) Act, 1995, the State of Kerala was reluctant
to give promotion to fill up the vacancies reserved for persons
with disability. Even though it was held by the Honourable
Supreme Court in Rajeev Kumar Gupta Vs. Union of India
[2016 (KHC) 6506 = 2016(3) KLT 263 = AIR 2016(SC)
3228 = 2016(13) SCC 153] that irrespective of mode of
filling up of vacancies 3% reservation shall be provided to the
persons with disabilities, the same was not implemented in
State of Kerala. Therefore, the promotions of the persons with
disabilities, including that of the applicant herein, was
inordinately delayed as the eligible reservation was not provided
by the state. All the promotions the applicant received till date
are only as per his General seniority and there was inordinate
delay in getting promotion. Moreover, in Siddaraju Vs. State
of Karnataka & others [2020(1) KHC 609 = 2020(1) KLT
698] it is clarified that the Rule of no reservation in promotions
laid down in “Indira Sawhney case” has no application to
peoples with disabilities. But in spite of the above judgments
the State of Kerala has not implemented the reservation.

5. The Hon’ble High court of Kerala has pleased to direct to

implement the reservation as per the Act. The State of Kerala
challenged the order of the Honourable High Court of Kerala
directing to implement reservation for promotion in Appeal
before the Honourable Supreme Court of India in State of
Kerala and others Vs. Leesamma Joseph 2021 (4) KHC
318 = 2021 (4) KLT 191 = 2021 (7) SCALE 604 and in the
said judgment the Honourable Supreme Court was pleased to
direct the State of Kerala to implement the judgments in
Rajeev Kumar Gupta and Siddaraju supra and provide for
reservation in promotion in all posts after identifying said posts.
For easy reference the directive part of the judgment is
extracted hereunder:

“29. CONCLUSION
We are of the view that the course of action followed by the
High Court in the impugned order is salutary and does not call for any
interference. We have also answered various questions which have
arisen in the present proceedings assisted by learned Amicus Curiae.
In fact, what seems to emerge is that the appellant – State has not
implemented the judgment of this Court in Rajeev Kumar Gupta’s and
Siddaraju’s cases (sura). Thus, we consider it appropriate to issue
directions to the State of Kerala to implement these judgments and
provide for reservation in promotion in all posts after identifying said
posts. This exercise should be completed within a period of three
months. We are making it time bound so that the mandate of the Act
is not again frustrated by making S.32 as an excuse for not having
identified the post.”

6. The said judgment was delivered on 28.07.2021 and the

three months period had expired on 28.10.2021. But, the 1 st
respondent has not taken any steps to implement the said
Supreme Court judgment by granting promotions.

7. It is respectfully submitted on calculating the backlog

vaccines from 07.02.1996, the date in which the Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 or Right of Persons with Disabilities Act,
2016 the applicant will get promotion.

8. The respondents herein have got a duty to comply with

the judgment in Leesamma Joseph supra in letter and spirit.
Since, there is no timely implementation of the reservation as
per the Act; the applicants’ promotion to the present post was
already delayed.

9. It is submitted that, now State Government has taken a

stand that the reservation will be provided only after
promulgating new or after amendment of the existing rules. The
said stand is only to deny the promotion opportunities for
persons with disabilities. When there are central statutes which
specially says for reservation, the state government is not
having competency to legislate in the same filed. The state
government has got a duty to identify the posts by necessary
notifications and to give promotions according to the said
central Acts, i.e.; 3% reservation as per Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act, 1995 and 4% reservation Right of Persons
with Disabilities Act 2016. In Radhakrishnan K.V. Vs. State
of Kerala 2023 KHC 555=2023 (5) KLT 26 it is held that the
amendment for service rules in not necessary, for providing
reservation for persons with disabilities, as per central statutes.

10. Therefore, the applicant has submitted an application

before the 2nd respondent for promotion by providing
reservation for Persons with Disabilities. True copy of the
application dated 16.07.2022 submitted by the applicant before
the 2nd respondent is produced herewith and marked as
Annexure-A3. But the same was not considered. Therefore,
the applicant has approached the Director of Social Justice, a
Department which is serving with the Persons with Disabilities.
But the Director of Social Justice has replied that the
reservations for promotion are to be considered by the
respective departments. True copy of the letter dated
17.11.2022 of director of Social Justice with file
No.SJD/4423/2022-D3 is produced herewith and marked as
Annexure-A4. Therefore, the applicant has again approached
the 2nd repsondnet for retrospective promotion on the basis of of
Annexure-A3 request. True copy of the letter dated 28.11.2022
submitted by the applicant before the 2nd respondent is
produced herewith and marked as Annexure-A5. But no
proceedings were initiated by the 2nd respondent both on
Annexure-A3 and A5 representation claiming promotion to the
post of Chargeman on the basis of reservation for Persons with
Disabilities.

11. Since, the 2nd repsondnet is not considering the claim of

the applicant; the applicant has submitted another
representation before the 1st respondent for promotion by
considering the reservation for Persons with Disabilities. True
copy of the representation dated 17.06.2023 submitted by the
applicant before the 1st respondent is produced herewith and
marked as Annexure-A6. On the basis of Annexure-A6, the 1 st
respondent was pleased to call for a report from the 2 nd
repsondnet. The 2nd respondent has submitted a report to the
1st repsondnet dated 29.07.2023. True copy of the report
No.E1-10815/19 dated 29.7.2023 is produced herewith and
marked as Annexure-A7. A typed copy of the Annexure A7 is
produced herewith and marked as Annexure-A7(a). In the
report, it is admitted that the applicant is rank No.5 in the
seniority list and their existing three vacancies at present. Later
one more vacancy was also arise due to retirement. But
according to the 2nd repsondnet Director, the applicant is not
having 5 years practical experience in overhauling and
maintenance of Ruston/Kirlosker/Perkins type engines for the
reason that Ruston/Kirlosker/Perkins are not used in the
Department from 2000 onwards. In other words, since the
Department is not using Ruston/Kirlosker/Perkins engines, the
mechanics are not able to get experience on the same and
therefore for promotion, the amendment of the special rules is
necessary.

12. It is respectfully submitted that the said interpretation of

the 2nd repsondnet is on the basis of misplaced concept of
reading rules. What it is mentioned in the Rules is 5 years
practical experience in overhauling and maintenance of
Ruston/Kirlosker/Perkins type engines and not 5 years practical
experience in overhauling and maintenance of
Ruston/Kirlosker/Perkins engines. In other words, “type”
engines denote the other engines also in the same type as per
the interpretation as per Ejusdem Genris. Therefore, the
experience in Asok Leyland Engines now used in the department
is also a type of engine belongs to the above said
Ruston/Kirlosker/Perkins engines. Therefore, the applicant is
qualified, even though he has no experience in
Ruston/Kirlosker/Perkins, but is having experience in such type
of Ashok Leyland engine used in the department. If, it is read as
interpreted by the 2nd respondent then the word ‘type’ will
became redundant or superfluous. It is trite to law that no
words in the Statute shall be read as redundant or superfluous.
Hence, the interpretation given by the 2 nd respondent in the
Rule is totally misplaced and denial of the promotion to the
applicant on the basis of misplaced interpretation is illegal.
Therefore, the applicant has submitted another representation
dated 05.12.2023 pointing out the above said anomaly in
interpreting the rules in denying the promotion to the applicant.
Since, the applicant is going to retire on 31.01.2024. The
applicant has submitted a copy through proper channel and an
advance copy by speed Post. True copy of the representation
dated 05.12.2023 submitted before the 1st respondent is
produced herewith and marked as Annexure-A8. Since, the
applicant is going to retire on 31.1.2024 and the applicant’s
application is pending before the 1st respondent, it is just proper
to direct the 1st respondent to consider and pass orders on
Annexure-A8 within a time frame fixed by this Honourable
Tribunal.
GROUNDS

A) The applicant is fully qualified for the promotion to the

post of chargeman as per Special rules. The rules specified the
5 years’ experience of maintenance of Ruston/Kirlosker/Perkins
type engines and not 5 years practical experience in overhauling
and maintenance of Ruston/Kirlosker/Perkins engines.
Therefore, the experience in Asok Leyland Engines now used in
the department is also a type of engine belongs to the above
said Ruston/Kirlosker/Perkins engines. If the word “type” in the
rule is not considered, as interpreted by the Director, the same
will be rendering that word as redundant or superfluous. It si
trite law that no word in statute cannot be said to be redundant
or superfluous while interpreting the statutes. It is also a settled
law in interpretation that, the intention or expression has to be
gathered from the language that has be gathered while
considering Ejusdem generis. This is made clear in Grasim
Industries Ltd Vs. Collector of Customs 2002 [KHC
1043=AIR 2002 SC 1706]. Hence, the word “type” denoted
ejusdem generis in the special rules. And therefore the
experience in Ashok Leyland Engine, which comes in the type of
Ruston/Kirlosker/Perkins engines, shall also taken as
qualification for promotion as per special rules for the post of
chargeman.

B) The applicant is eligible for promotion to the post of

principal as per Persons with Disabilities (Equal Opportunities,
Protection of Right and Full Participation) Act, 1995 and Right of
Persons with Disabilities Act, 2016. Hence, this Hon’ble court
may be pleased to direct the respondents to give promotion to
the applicant to the post of chargeman.

C) The respondents have got a duty to comply with the

judgement in Leesamma Joseph supra. The three month
period for complying the judgement will over on 28.10.2021.
Therefore, this Hon’ble court may be pleased to direct the
respondents to effect promotion to the applicant to the post of
chargeman by providing necessary reservation for the persons
for disabilities

D) As per the judgements mentioned above, the reservation

shall be provided for the persons with disabilities as per Persons
with Disabilities (Equal Opportunities, Protection of Right and
Full Participation) Act, 1995 and Right of Persons with
Disabilities Act, 2016. In Ranjith J V and others Vs. State of
Kerala 2020 KHC 630 = 2020 (5) KLT 324., Sunil Kumar B
and another Vs. Cochin University of Science and
Technology 2020 (4) KHC 739 = 2020 (6) KLT 120 it is
held that, the back log vacancies shall be filled up from the
vacancies from the date of commencement of the Act. Hence,
it’s prayed that the applicant shall promoted to the post of
Chargeman.

E) The reservation for persons with disabilities was provided

as per Persons with Disabilities (Equal Opportunities, Protection
of Right and Full Participation) Act, 1995 and Right of Persons
with Disabilities Act, 2016. The same are central Acts.
Therefore, the state government has got a duty to implement
the same especially when there are specific directions from the
Supreme Court in various judgments. There is no requirement
for further legislation or amendment in rules for providing the
reservation as per the said central Acts. The state government
may or may not legislate, is not a reason to deny the
reservation to the eligible candidates. Moreover, it is trite law
that, the absence of rules to provide the reservation in
promotion would not defeat the right of persons with disabilities
as it flows from the legislations and which was the mandate of
the Hon’ble Supreme Court. This is made clear in the judgment
Radhakrishnan K.V. Vs. Satte of Kerala 2023 KHC
555=2023(5) KLT 26. Therefore, there is absolutely no
reason to not to provide the reservation for promotions.
Therefore, this Hon’ble tribunal may be pleased to direct the
respondents to implement reservation as and promote the
applicant to the post of Chargeman;

F) In OP(KAT)312/2023 Dr.B.Unnikrishanan Vs.State of

Kerala and others, it is held that

10. After hearing both sides, the above said argument of the
respondent-authority is without any substance. It appears
that, the case of the respondents may be that where the
method of appointment to the claimed post in question is
solely by the method of direct recruitment, then promotion
norms may not be maintainable at all and therefore, claims
for lateral reservation in such claimed promotion may also
not be legally feasible. Presumably, it is in this perspective
that the respondent authorities have framed Sub-clause (ii)
of Clause 8 of Anx.A6 G.O., which intends to convey that, in
a case where the method of appointment to the claimed
promotion post is both by direct recruitment and
promotion, then there may not be any inhibition or
embargo for lateral reservation for promotion at least in
the promotion quota. The said Clause 8(ii) of Anx.A6
cannot be even remotely meant to have the meaning that,
where the method of appointment is solely by promotion,
then also the claim of lateral reservation promotion is only
to be denied on the specific ground that Clause 8(ii) supra
is not fulfilled. The said argument is too hyper-technical to
be countenanced, in the light of the radical jurisprudential
perspectives rendered by the Apex Court in a host of
decisions, which are referred to in Leesamma’s case supra
[(2021) 9 SCC 208], A.K. Nair’s case supra [2023 SCC online
SC 801], etc.

11. It is to be borne in mind that, where the method of

appointment is solely by promotion, then there is no
question of denying the claim for lateral reservation in
promotion, unless on the ground of non-suitability of DA
candidates to hold such promotion post. It is also now the
settled approach that, where the feeder category of the
post in the promotion line is already identified as suitable
for lateral reservation in the DA quota, then separate
identification in the promotion post may not be required.
We need not go in to those aspects, for the simple reason
that the respondents have a case in Anx.A15 rejection
order, that disabled persons, like the petitioner, is indeed
 otherwise eligible for holding the claimed post in question.
Therefore, the above said interpretation, sought to be
projected by the respondents before the Tribunal is to, say
the least, palpably perverse and manifestly unreasonable.

Here, the method of appointment to the post of chargeman is

solely by promotion. Only in the absence of the persons for
promotion, the direct recruitment is permitted. Hence, there is
no reason for delaying the reservation for the applicant. Hence,
this Hon’ble tribunal may be pleased to promote the applicant
as chargemen w.e.f.16.07.2022, the date of Annexure A3
representation.

Details of remedies exhausted:

The applicants declare that, there are no other remedies

available to them under the relevant Service Rules.

8. Matters not previously filed or pending with any

other Court/Tribunal:

The applicants further declares that she have not

previously filed any Application, Writ Petition or Suit regarding
the matter in respect of such this Application has been made
before any Court or Tribunal or law or any other Bench of the
Tribunal and nor any such Application, Writ Petition or Suit is
pending before any of them.

9. Reliefs sought:

In view of the facts and grounds mentioned in para 6

above, the applicant prays for the following reliefs:
 i) To issue a direction to the 1st respondent to consider
and pass order on Annexure A8, before the
retirement of the applicant on 31.01.2023;

ii) To issue a direction to the respondents to promote

the applicant to the post of Chargeman w.e.f
w.e.f.16.07.2022, the date of Annexure A3
representation;

iii) To issue a declare that the experience in Ashok

Leyland Engine, which comes in the type of
Ruston/Kirlosker/Perkins engines, shall also take as
experience for promotion to the post of chargeman
as per Annexure A1 special rules and therefore the
applicant is fully qualified for the post as on
16.07.2022;

iv) And grand such other and further reliefs as this

Hon’ble Tribunal may deem fit and proper in the
circumstances of the case including costs.

10. Interim Order, if any prayed for:

For the reasons stated in the statement of facts and

grounds mentioned in para-6 above, it is humbly prayed that
this Hon’ble Tribunal may be pleased direct the respondents to
provisionally promote to the applicant as Chargeman; pending
disposal of the O.A.

11 In the event of application being sent by Regd:

Post:

Filed through Registry

12. Particulars of the IPO filed in respect application fee

No of the IPO : NA

Date or Amount of IPO : NA (Fee remitted by court Fee)

(R.50/- paid)

13 List of Enclosures: Vakkalath, Annexures A1 to A8.

VERIFICATION

I, Mubarak.M, Aged 55 Years, S/o.M.S.Muhammed Ismail

Rawther, Mechanic, Dock and Repair Section, State Water
Transport Department, Alappuzha - 688001. (Residing at
Valiyavila House, Manchalloor, Kundayam.P.O, Pathanapuram,
Kollam District – 689695), do hereby verify that the contents of
the paras 1 to 13 are true to the best of our knowledge and that
we have not suppressed any materials facts.

Dated this the 18th day of December, 2023 at Ernakulam

Applicant:

Lindons.C.Davis
(Counsel for the Applicant)
 BEFORE THE HON’BLE KERALA ADMINISTRATIVE
TRIBUNAL AT THIRUVANANTHAPURAM
Original Application No. of 2023

Mubarak.M : Applicant
Vs.
State of Kerala and another : Respondents
INDEX
Sl.No. Description of documents relied upon Page
No.
1. Synopsis

2. Memorandum of Original Application

3. Annexure A1– True copy of relevant pages

of the Special Rules.

4. Annexure A2 – True copy of the Standing

Disability Certificate of the applicant issued from
Taluk Head Quarters Hospital, Changanaserry.

5. Annexure-A3- True copy of the application

dated 16.07.2022 submitted by the applicant before
the 2nd respondent.

6. Annexure-A4- True copy of the letter

dated 17.11.2022 of director of Social Justice
with file No.SJD/4423/2022-D3.

7. Annexure-A5- True copy of the letter

dated 28.11.2022 submitted by the applicant
before the 2nd respondent.

8. Annexure-A6- True copy of the representation

dated 17.06.2023 submitted by the applicant
before the 1st respondent.

9. Annexure-A7- True copy of the report

No.E1-10815/19 dated 29.7.2023.

10. Annexure-A7(a)- A typed copy of the Annexure A7.

11. Annexure-A8- True copy of the representation

dated 05.12.2023 submitted before the 1st respondent.

Dated this the 18th day of December, 2023 at Ernakulam.

Counsel for the Applicant

 Presented on: .12.2023

Sub: Water Transport Department – For promotion to the post

of Chargmen. Due to retire on 31.01.2024 – Annexure A8
representation pending before the 1st repsondent

BEFORE THE HON’BLE KERALA ADMINISTRATIVE

TRIBUNAL AT THIRUVANANTHAPURAM

Original Application No. of 2023

Mubarak.M : Applicant

Vs.

State of Kerala and another : Respondents

ORIGINAL APPLICATION FILED UNDER SECTION 19 OF

THE ADMINISTRATIVE TRIBUNALS ACT, 1985.

LINDONS.C. DAVIS (K/1115/09),

VIVEK VIJAYAKUMAR (K/1018/2016),

DHANYA.E.U (K/672/06)

(Counsels for the Applicant)

L&D Associates,
nd
2 Floor, K.K. Building, Mathai Manjooran Road,
Cochin -18 Ernakulam
 BEFORE THE HON’BLE KERALA ADMINISTRATIVE
TRIBUNAL AT THIRUVANANTHAPURAM

Original Application No. of 2023

Mubarak.M : Applicant
By Adv.Lindons C Davis

Vs.
State of Kerala and another : Respondents

Notes of Registry Order of the Tribunal