Case Name: Maya P. C. & Ors. Vs State of Kerala & Anr.
Case Number: Civil appeal No. 14915 of 2024 (arising out of SLP(Crl.) No. 480/2025)
Date of Judgment: 23th May, 2025
Quorum: Justice Abhay S. Oka and Justice Augustine George Masih
FACTUAL BACKGROUND
In the instant case, the appellant are persons with benchmark disabilities, each with a physical disability exceeding 40%, who were engaged in various public institutions in the State of Kerala under Rule 9(a)(i) of Kerala State and Subordinate Services Rule, 1958. On 18th May 2013, via Government Order, the State resolved to regularize the services of 2,677 physically disabled persons against supernumerary posts, who had been engaged temporarily through employment exchange under the same rule, from 16th August to 31st December 2003. It was further stipulated that such supernumerary posts would stand abolished upon the retirement of the incumbents. As per this G. O., the appellants were to be reappointed to the supernumerary posts created solely for their absorption.
Subsequent to the Order, the appellants were reappointed on regular basis, to their respective departments. Nevertheless, via another G. O. dated 3rd February 2016, the first respondent, among others, declared individuals reappointed in such manner, as ineligible for declaration of probation, inclusion in combined seniority list or consideration for promotion. Aggrieved by this, the appellants have approached the Hon’ble Supreme Court of India. The civil appeals that have placed for the consideration of this court arises from 2 judgments, one delivered by the Division of the Kerala High Court on 1st February 2021, and the latter by co-ordinate division bench of the Kerala High Court on 5th March, 2021.
In the former adjudication wherefrom civil appeal no. 14915 of 2024, 14916 – 17 of 2024 & 14918 of 2024 arises, the appellants were appointed as assistant in M G University through employment exchange, for a period of 179 days under Rule 9(a)(i) of KS & KSSR. Pursuant to the G. O. dated 18th May 2013 and 7th August 2013, appellants 1 to 10 were reappointed by an Order. Appellants 11 and 12 had been holding regular posts as peons in the revenue department and had resigned in order to avail the benefit of G. O. dated 18th May 2013. After completing probation and the requisite tests, the appellants were included in the final seniority list of assistance. Yet their names were excluded from the list subsequent to the G. O. dated 3rd February, and were denied the benefit of promotion. The G. O. was challenged before the Kerala High Court, wherein the court directed the grant of benefit of seniority, declaration of probation and promotion, to the petitioners. However, via a writ appeal filed by the 1st respondent, the division bench of the high Court reversed the judgement and upheld the provisions of the said G. O.
As for Civil appeal no. 14916-17, the appellant with 50% disability had been engaged on temporary basis in Kerala PSC under Rule 9(a)(i) of KS & SSR for 179 days. Thereafter, she was selected through regular recruitment and appointed as LDC at the Central Plantation Crops Research Institute. Pursuant to G. O. dated 18 May 2013 and 7th August 2013, the said post was resigned and she rejoined KPSC as assistant as per appointment against supernumerary post. Having cleared the required departmental exams, the appellant sought declaration of probation and inclusion in the seniority list, which was instantly rejected. The aggrieved appellant filed an original application before the Kerala Administrative Tribunal. The Tribunal with reference to the judgment of the Kerala High Court in W P (C) No. 9832 of 2016, allowed the claim. However, this decision was reversed by the division bench of Kerala High Court, holding that the appellant’s appointment against a supernumerary post, is a policy concession, hence the appellant doesn’t have the right to claim benefits of promotion and seniority.
ISSUES FOR DETERMINATION
- Whether denying seniority, probation and promotion to persons with disabilites under the impugned order, violative of the constitution?
LEGAL PROVISIONS
Rule 9(a)(i) of the KS & SSR, Article 14 of the Constitution of India.
APPELLANT’S CONTENTIONS
The primary contention put forth by the appellant is that, neither the impugned Government Order nor the appointment orders issued to the appellants contain any stipulation to the effect that the appellants would be denied promotion or other service benefits, or that they would be compelled to remain in the same post until their retirement.
The High Court has erred in holding the appellants eligible to claim parity with regular employees solely on the ground that they were not appointed pursuant to a reservation under the persons with disabilities (Equal opportunities, protection of rights and full participation) Act of 1995 or the Rights of persons with disabilities Act, 2013. The counsel for the appellant contends that the action of the respondents contradicts the mandate under section 33 of the 2016 Act, which provides 3% reservation of persons with disability. Denying the benefit of completing probation and promotion is contrary to the objective of the 1995 and 2016 Acts. Thus, the G. O. dated 18th May 2013 can’t be withdrawn, in a way that prejudices the beneficiaries of the G. O. dated 18th May 2013.
RESPONDENT’S CONTENTIONS
The respondent contends that the objective o the government Order dated 18th May 2013, was to ensure reasonable accommodation of persons with disabilities. No further competition procedures had been applied in favor of the beneficiaries. The Order clearly prescribes that the respective posts of the beneficiaries will be cancelled as and when the employee retires from their post. It already includes the salary, increments, pension leave and other allowances. Thus, extending the service benefits such as promotion would set an unfair precedent and disrupt the rights of regularly appointed employees.
The impugned order is by way of concession, and therefore, as rightly held by the division bench of the High court, the appellants cannot claim anything which is not expressly provided in the Order, as a matter of right. The supernumerary posts were created to accommodate the appellants and therefore, they cannot be treated as regular employees. Likewise, they are not entitled to benefits that are available to the regular employees.
ANALYSIS
The Court observed that, the objective of the impugned G. O. is to give regular appointments to persons with disability who were working on temporary posts through the employment exchange, that is, to grant permanency to the said category of persons. The appellants in the instant appeal, were appointed through regular employment, as they were treated as having been appointed on probation.
The subsequent Government Order issued on 3rd February 2016 was specifically applicable to the beneficiaries of the former G. O., and it has been stated therein that, persons appointed on the basis of the G. O. dated 18th May 2013, shall not be eligible for seniority and completion of probation as other regular employees. Hence, there cannot be any combined seniority list as well. This Order was made to ensure that persons with disability appointed through employment exchange in a particular post, should be regularly appointed. Hence it is to be asserted that all of them were appointed on probation. The benefits derived from this Order cannot be withdrawn by the subsequent Order.
JUDGMENT
The Supreme Court concluded that the G. O. dated 3rd February 2016 is discriminatory and irrational and therefore, violative of Article 14 of the Constitution of India. The Court passed 3 orders (i) setting aside the impugned judgment of the Kerala High Court, (ii) restoring the judgment delivered by the single judge of Kerala HC and of the Kerala Administrative Tribunal, and (iii) allowing the present appeal, respectively.
CONCLUSION
The Supreme Court has thus concluded that the denial of probation, seniority, and promotion to persons with benchmark disabilities appointed under the 2013 Government Order was arbitrary and violative of Article 14 of the Constitution. It held that such individuals, having been appointed on a regular basis to supernumerary posts, are entitled to the same service benefits as other regular employees. Consequently, the Court struck down the 2016 Government Order and upheld the rights of the appellants to be treated on par with their counterparts.
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WRITTEN BY AYANA THERESA XAVIER
