Court’s Decision
The Supreme Court set aside the judgments of the Division Bench of the Kerala High Court, which had upheld a Government Order (G.O.) dated 3rd February 2016 denying promotion, seniority, and probation benefits to persons with disabilities (PwDs) appointed against supernumerary posts under an earlier G.O. dated 18th May 2013. The Court restored the orders of the Single Judge and the Kerala Administrative Tribunal (KAT), which had ruled in favour of the appellants.
The Court held:
“What is conferred on the appellants by the G.O. dated 18th May 2013 cannot be withdrawn… Clause 3.5 of the G.O. dated 3rd February 2016 is discriminatory and irrational and therefore, violative of Article 14 of the Constitution of India.”
Facts
- The appellants are PwDs with benchmark disabilities (above 40%) who were temporarily appointed in public institutions across Kerala under Rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958.
- A Government Order dated 18th May 2013 directed their reappointment on supernumerary posts, to be regularised, with the posts abolished on their retirement.
- Appointments were made on probation, with departmental tests cleared and seniority lists updated.
- However, a subsequent G.O. dated 3rd February 2016 denied these employees key service benefits — such as declaration of probation, inclusion in the seniority list, and promotions.
Issues
- Whether the G.O. dated 3rd February 2016 could curtail the benefits conferred by the earlier G.O. dated 18th May 2013.
- Whether the denial of benefits such as promotion and seniority to employees with disabilities appointed under the earlier G.O. is constitutionally valid.
- Whether such denial violates the Rights of Persons with Disabilities Act, 2016, and the equality mandate under Articles 14 and 16 of the Constitution.
Petitioner’s Arguments
- The appointments under the G.O. dated 18th May 2013 were regular in nature, and probation was declared in many cases.
- The G.O. dated 3rd February 2016 was issued after years of satisfactory service, making it arbitrary.
- The appellants had relied on the initial G.O. to resign from other regular jobs and could not now be denied full service benefits.
- Denial of service benefits was contrary to Section 33 of the Rights of Persons with Disabilities Act, 2016 and undermined the protective intent of the 1995 and 2016 Acts.
- The restriction violated Articles 14 and 16 of the Constitution.
Respondent’s Arguments
- The 2013 G.O. was a policy concession to ensure reasonable accommodation for PwDs, not based on open competitive recruitment.
- The G.O. explicitly stated that supernumerary posts would cease upon retirement of incumbents, indicating their non-regular status.
- The clarification in the 2016 G.O. merely formalised that such appointments did not carry further service benefits such as promotion or seniority.
- Regular employees, having undergone a different recruitment process, could not be equated with beneficiaries of a concessionary policy.
Analysis of the Law
- Rule 9(a)(i) permits temporary appointments for a maximum of 179 days.
- Rule 39 of the General Rules permits the creation of supernumerary posts in public interest.
- The G.O. dated 18th May 2013, issued under Rule 39, provided for “re/regular appointment” of disabled persons who had completed 179 days of service during a defined window.
- The use of the term “regular appointment” and the requirement of probation confirmed the intention of making these permanent appointments.
Precedent Analysis
- The respondents relied on Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1, which discourages regularisation without competitive recruitment.
- The Court distinguished this case, noting that the appointments here were not irregular, but regularised under a specific policy accommodating PwDs.
- The High Court erred by not applying the provisions of the 1995 Act and 2016 Act in full.
Court’s Reasoning
- The appellants were appointed on probation, and therefore, the employment was regular in nature.
- The later G.O. sought to withdraw benefits already conferred under the earlier G.O., which was impermissible.
- Several appellants had altered their employment position in reliance on the 2013 G.O., further strengthening the expectation of full service benefits.
- The 2016 G.O. thus amounted to arbitrary classification and violated Article 14.
- The object of the 2013 G.O. was not just temporary relief but full integration of PwDs into regular service.
“What is given by this G.O. dated 18th May 2013 cannot be withdrawn subsequently to the prejudice of the beneficiaries… Clause 3.5 of the G.O. dated 3rd February, 2016 seeks to withdraw what is specifically conferred… Hence, it is discriminatory and irrational.”
Conclusion
The Supreme Court ruled:
- The impugned Division Bench judgments of the Kerala High Court are set aside.
- The judgments of the Single Judge and the Kerala Administrative Tribunal are restored.
- The appeals are allowed.
Implications
- This judgment affirms the rights of PwDs appointed under policy-based regularisation schemes to be treated at par with regular employees.
- It reaffirms that benefits once granted under a lawful policy cannot be arbitrarily withdrawn by a subsequent order.
- The ruling strengthens the constitutional and statutory protections available to PwDs, ensuring substantive equality in public employment.