BY AD v. KALEESWARAM RAJ

BY ADVS SRI. NAVEEN T - SC SRI.SUNIL KUMAR KURIAKOSE - GP THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: COC 2505/23 2 JUDGMENT The petitioners allege that Annexure VI order dated

09.10.2023 is in blatant disregard of the directions of this Court in the judgment dated 23.08.2023.

2. Sri.Kaleeswaram Raj – learned counsel for the petitioners, argued that, even though this Court had directed the competent Authority of the Kerala State Beverages Corporation (‘BEVCO’) to take a decision on his clients’ claim for promotion, since they are liable to do so statutorily, under the provisions of the Persons with Disabilities Act, 2016 (hereinafter referred to as ‘the PWD Act’ for short), adverting to the earlier Government instructions, Annexure VI has been issued disregarding all of them and merely saying that none of the posts in the ‘BEVCO’ is suitable for reservation for promotion of people with disability. He submitted that this clearly militates against the intent and spirit of the Statute and is designed to defeat it; and therefore, that this Court will be justified in initiating Contempt action against the respondents. He contended that when this Court had made it abundantly clear that the COC 2505/23 3 Government Order dated 19.05.2023 ought to be specifically looked into, and when the said order makes it indubitable that the earlier request of the ‘BEVCO’ - for being exempted from complying with the provisions of the ‘PWD Act’ - is untenable and illegal, Annexure VI order is an ingenuous method devised by the respondent to circumvent not merely it, but also the directions of this Court.

3. Sri.T.Naveen – learned Standing Counsel for the ‘BEVCO’, however, submitted that his client has issued Annexure VI order strictly in compliance with the directions in the judgment, as also that in the Government Order aforementioned; and that this was done after evaluating each of the posts available from the three criteria, as are prescribed by the Government themselves. He argued that, going by any of the said criteria, the post in question cannot be reserved for reservation; and that the respondents, therefore, were constrained to issue the order, now effectively disputed by the petitioners.

4. Sri.Sunil Kumar Kuriakose – learned Government Pleader, submitted that though he does not have any comment to make on the claim of the petitioners at this stage, it being against the COC 2505/23 4 ‘BEVCO’ essentially, the fact remains that reservation for promotions can be done only as per the Statutory Scheme and in terms of the Government stipulations. He submitted that, therefore, it is only if the petitioners are to challenge Annexure VI appropriately, can normally, these issues be looked into.

5. When I evaluate and consider the afore rival submissions, it is indubitable that, as an abstract Rule, the provisions of the ‘PWD Act’ cannot be allowed to be circumvented or disregarded by any Authority. In fact, as rightly argued by Sri.Kaleeswaram Raj, the Government had, in their order dated 19.05.2023, made it clear that the request of ‘BEVCO’ for exemption from the rigour of the ‘PWD Act’ is untenable and against its intent and will defeat the same. However, it is also relevant that the specific stand of the respondent is that the Government themselves have stipulated certain guidelines through another order dated 15.07.2022; and that every post intended to be reserved, will have to be identified based on the same; and that, going by the same, none of posts in question can be so reserved.

6. Obviously, the afore involves a disputation of fact, which COC 2505/23 5 cannot be considered by this Court while acting under the Contempt jurisdiction. Certainly, if the petitioners are able to establish that the actions of the respondents and the ‘BEVCO’ in issuing Annexure VI was illegal and contrary to the Statutory Scheme, they surely will be entitled to relief; but they will have to invoke appropriate remedies for this. In the afore circumstances, reserving every liberty available to the petitioners in law to challenge Annexure VI, I close this Contempt Case; clarifying that all rival contentions are also left open. RR Sd/- DEVAN RAMACHANDRAN JUDGE COC 2505/23 6 APPENDIX OF CON.CASE(C) 2505/2023 PETITIONER ANNEXURES Annexure I Annexure II Annexure III Annexure IV Annexure V Annexure VI Annexure VII RESPONDENT ANNEXURES Annexure R2(a) TRUE COPY OF THE JUDGMENT DATED 23.08.2023 IN W.P(C)NO.12261/2023. TRUE COPY OF THE LEGAL NOTICE DATED 31.08.2023 TO THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE BEVERAGES (M&M) CORPORATION LTD. TRUE COPY OF THE ORDER OF THE SOCIAL JUSTICE DEPARTMENT GO(RT) NO. 222/2022/SJD DATED 27.09.2022. TRUE COPY OF THE CIRCULAR DATED 23.09.2022 ISSUED BY ADDITIONAL CHIEF SECRETARY. TRUE COPY OF THE LETTER NO.B 423/2021 S.J.D DATED 19.05.2023. TRUE COPY OF THE ORDER NO.10334/AE11/2021/KSBC, DATED 09.10.2023. TRUE COPY OF THE G.O(P)NO.5/2022/SJD DATED 15.07.2022. True copy of the Report No. 10334/AE11/2021/KSBC dated 4-7-2023 prepared by the Committee constituted by the Corporation and sent to the Government as per communication dated 4-7-2023.