Full Judgment Text
2025 INSC 773
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14915 OF 2024
Maya P.C. & Ors. … Appellants
versus
The State of Kerala & Anr. … Respondents
with
CIVIL APPEAL NOS.14916-14917 OF 2024
CIVIL APPEAL NO.14918 OF 2024
and
CIVIL APPEAL NO.14919 OF 2024
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellants in these Civil Appeals are persons
with benchmark disabilities, each with a physical
disability exceeding 40%. They were engaged in various
public institutions in the State of Kerala under Rule 9(a)(i)
Signature Not Verified
of the Kerala State and Subordinate Service Rules, 1958
Digitally signed by
KAVITA PAHUJA
Date: 2025.05.23
17:54:12 IST
Reason:
(for short, “the KS & SSR”), which governs temporary
Civil Appeal No.14915 of 2024 etc. Page 1 of 16
appointments made in public interest, for a period not
exceeding 179 days.
2. By a Government Order (for short, “the G.O.”) dated
th
18 May 2013, the State Government of Kerala (first
respondent) resolved to regularise the services of 2,677
physically disabled persons against supernumerary posts,
who had been engaged temporarily through employment
exchange under Rule 9(a)(i) of the KS & SSR between 16th
August 1999 and 31st December 2003. According to the
said G.O., the appellants were to be reappointed to
supernumerary posts created solely for their absorption.
The said G.O. further stipulated that such supernumerary
posts would stand abolished upon the retirement of the
incumbents.
3. Pursuant to the above G.O., the appellants were
reappointed on a regular basis in their respective
rd
departments. However, by a subsequent G.O. dated 3
February 2016, the first respondent, inter alia, declared
that such reappointed persons shall not be eligible for
declaration of probation, inclusion in the combined
seniority list, or consideration for promotion.
4. The appellants, feeling aggrieved by the imposition of
these restrictions, adopted their remedies as discussed
herein below. It is in the backdrop of the aforesaid common
Civil Appeal No.14915 of 2024 etc. Page 2 of 16
facts that the cases of individual appellants must now be
adverted to.
5. In this batch of Civil Appeals, Civil Appeal Nos. 14915
of 2024, 14916-17 of 2024 & 14918 of 2024 arise out of a
st
common impugned judgment dated 1 February 2021,
delivered by the Division Bench of the Kerala High Court.
Whereas, Civil Appeal No. 14919 of 2024 arises out of the
th
impugned judgment dated 5 March 2021, delivered by
the co-ordinate Division Bench of the Kerala High Court by
st
relying upon the above judgment dated 1 February 2021.
6. Civil Appeal No. 14915 of 2024
6.1 The appellants herein were appointed as
Assistants in Mahatma Gandhi University (second
respondent), through employment exchange for
179 days under Rule 9(a)(i) of KS & SSR, between
16.08.1999 and 31.12.2003. Pursuant to G.O.
th th
dated 18 May 2013 and 7 August 2013,
appellant nos. 1 to 10 were reappointed by an
th
order dated 10 December 2013, and appellant
nos. 11 and 12 were reappointed by a subsequent
th
order dated 27 March 2014. Notably, appellants
Nos. 11 and 12 were earlier holding regular posts
as peons in the revenue department and had
Civil Appeal No.14915 of 2024 etc. Page 3 of 16
resigned from their posts to avail themselves of
th
the benefit under the G.O. dated 18 May 2013.
6.2 Upon completion of probation and passing the
requisite departmental tests, the appellants were
included in the final seniority list of assistants.
rd
However, following the G.O. dated 3 February
2016, their names were excluded from the
combined seniority list, and they were denied the
benefit of promotion.
rd
6.3 The appellants challenged the said G.O. dated 3
February 2016 by filing Writ Petition (Civil) No.
9832 of 2016 before the Kerala High Court. The
learned Single Judge allowed the writ petition on
th
13 September 2017 and directed the
respondents to grant the petitioners the benefits
of seniority, declaration of probation, and
promotion. The learned Single Judge held that
rd
G.O. dated 3 February 2016 was contrary to the
principles of equality and fair treatment and noted
that once the person is appointed to a post, he is
entitled to be treated equally on par with his
counterparts. However, in a writ appeal by the
first respondent, the Division Bench of the High
Court reversed the judgment of the Single Judge.
The Division Bench upheld the provisions of the
Civil Appeal No.14915 of 2024 etc. Page 4 of 16
said G.O. dated 3rd February 2016, prompting the
appellants to approach this Court.
7. Civil Appeal No. 14916-14917 of 2024
7.1 The appellant, who has 50% disability, was
initially engaged on a temporary basis in the
Kerala Public Service Commission (KPSC) under
Rule 9(a)(i) of the KS & SSR for 179 days.
Thereafter, she was selected through regular
recruitment and appointed as Lower Division
Clerk (LDC) at Central Plantation Crops Research
Institute (CPCRI) under the Indian Council of
Agricultural Research. On the issuance of G.O.s
th th
dated 18 May 2013 and 7 August 2013, she
resigned from CPCRI and rejoined the KPSC as
Assistant on 12th December 2013, pursuant to
appointment against a supernumerary post.
7.2 Having cleared the relevant departmental
examinations, the appellant sought a declaration
of probation and inclusion in the seniority list.
However, her request was declined, citing the G.O.
rd
dated 3 February 2016. Aggrieved thereby, the
appellant filed an Original Application before the
Kerala Administrative Tribunal (for short, “the
th
tribunal”). On 12 July 2019, the tribunal allowed
Civil Appeal No.14915 of 2024 etc. Page 5 of 16
her claim by following the judgment of the Single
Judge of the Kerala High Court in W.P. (C) No.
th
9832 of 2016, dated 13 September 2017.
However, the Division Bench of the Kerala High
Court reversed the tribunal’s order vide impugned
st
order dated 01 February 2021, holding that the
appellant’s appointment being against a
supernumerary post was a policy concession, and
therefore, the benefits of promotion and seniority
could not be claimed as a matter of right. The
present Civil Appeal arises therefrom.
8. Civil Appeal No. 14918 of 2024
8.1 The appellant was appointed as LDC in the Civil
th
Supplies Department under the G.O. dated 18
May 2013. He completed his probation and
successfully cleared the departmental tests.
Despite his inclusion in the provisional seniority
list, he was excluded from the final list in view of
rd
the restrictions contained in the G.O. dated 3
February 2016.
8.2 He approached the tribunal by filing an Original
th
Application, which was allowed on 11 October
2019 by following the order of the Single Judge of
the Kerala High Court in aforesaid W.P. (C) No.
Civil Appeal No.14915 of 2024 etc. Page 6 of 16
th
9832 of 2016 dated 13 September 2017. The
tribunal granted him full-service benefits.
However, the Division Bench of the Kerala High
st
Court vide impugned order dated 01 February
2021 reversed the order of the tribunal, holding
that the appellant’s appointment being against a
supernumerary post was a policy concession, and
therefore, the benefits of promotion and seniority
could not be claimed as a matter of right.
9. Civil Appeal No. 14919 of 2024
9.1 The appellant, with 40% permanent disability,
was appointed as Rehabilitation Technician Grade
II under Rule 9(a)(i) of KS & SRR and subsequently
reappointed against a supernumerary post in the
Medical Education Department. His appointment
th
was regularised with effect from 15 October
2013, and he was declared to have completed his
th
probation. On 9 March 2017, he was promoted
to the post of Grade I Technician (Prosthetics).
9.2 However, the Health Department issued an order
th
dated 7 April 2018, cancelling his promotion and
rd
regularisation, citing the G.O. dated 3 February
2016 and stating that those appointed to
Civil Appeal No.14915 of 2024 etc. Page 7 of 16
supernumerary posts do not have claims to
regularisation or promotion.
9.3 The appellant challenged the aforesaid order by
filing an Original Application before the tribunal,
th
which ruled in his favour vide order dated 16
October 2019 and set aside the order of the Health
th
Department dated 7 April 2018. The tribunal
found that the restrictions were discriminatory
and contrary to the Rights of Persons with
Disabilities Act, 2016. The Division Bench of the
Kerala High Court, however, set aside the
tribunal’s order vide impugned judgment dated
th
05 March 2021, relying on the common
judgment rendered by the co-ordinate Division on
st
1 February 2021 in connected matters, wherein
it was held that appointments made against
supernumerary posts under a concessional
scheme do not confer enforceable rights to
promotion or seniority.
SUBMISSIONS
10. The learned senior counsel appearing for the
appellants submitted that neither of the aforesaid G.O. 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
Civil Appeal No.14915 of 2024 etc. Page 8 of 16
would be compelled to remain in the same post until their
retirement.
11. It was submitted that the appellants were included in
the seniority list and, in several cases, probation had also
rd
been declared. Thus, the G.O. dated 3 February 2016, by
which the first respondent purported to deny the
appellants the benefits of probation, seniority, promotion
and transfer, was issued after the appellants had
completed more than three years of satisfactory service.
The learned senior counsel drew our attention to the fact
that some of the appellants, including appellants nos. 11
and 12 in Civil Appeal No. 14915 of 2024, had voluntarily
resigned from regular government service in the
expectation that they would be treated as regular
employees of the university upon reappointment.
12. Learned senior counsel for the appellants further
submitted that the High Court committed a further error
in holding that the appellants could not 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, 1995 (the 1995 Act) or the
Rights of Persons with Disabilities Act, 2016 (the 2016
Act). It was submitted that such reasoning negates the
constitutional mandate under Articles 14 and 16.
Civil Appeal No.14915 of 2024 etc. Page 9 of 16
13. Learned senior counsel appearing for the appellant
submitted that the action of the respondents is completely
against the mandate of Section 33 of the 2016 Act, which
provides for a 3% reservation for the persons with
disability. His submission is that denying the benefit of
completing probation and promotion would be contrary to
the spirit of the 1995 and 2016 Acts. He submitted that
the G.O. dated 18th May 2013 grants regularisation to the
persons with disability who were working temporarily. He
th
submitted that what is given by this G.O. dated 18 May
2013 cannot be withdrawn subsequently to the prejudice
th
of the beneficiaries of the G.O. dated 18 May 2013.
14. The learned senior counsel for the first respondent
th
submitted that the objective of the G.O. dated 18 May
2013 was to ensure a reasonable accommodation for
persons with disabilities and that no further competition
procedures had been applied in favour of the beneficiaries.
th
It was submitted that the G.O. dated 18 May 2013 clearly
stated that the respective posts of the beneficiaries will be
cancelled as and when the employee retires from their
post.
15. The learned senior counsel further contended that
th
the benefits conferred under the G.O. dated 18 May 2013
already include salary, increments, pension, leave and
other allowances. Extending further service benefits, such
Civil Appeal No.14915 of 2024 etc. Page 10 of 16
as promotion, would set an unfair precedent and disrupt
the rights of regularly appointed employees. It was thus
submitted that the action taken by the first respondent in
rd
issuing the clarification dated 03 February 2016 was
corrective in nature and does not suffer from any illegality
or arbitrariness.
16. The submission of the learned senior counsel
appearing for the first respondent and others is that the
th
G.O. dated 18 May 2023 is by way of concession and
therefore, as rightly held by Division Bench of the High
Court, the appellants cannot claim anything which is not
th
provided in the G.O. dated 18 May 2013 as a matter of
right. Learned counsel appearing for the respondents
pointed out the findings recorded by the High Court in the
impugned judgment and order. He submitted that the
Division Bench has relied upon a binding decision of this
Court in the case of Secretary, State of Karnataka and
1
Ors. v. Uma Devi (3) and Ors . Learned counsel
submitted that supernumerary posts were created to
accommodate the appellants and therefore, they cannot be
treated as regular employees. They are not entitled to
benefits which are available to the regular employees. He
pointed out that the Division Bench has not considered the
1
(2006) 4 SCC 1
Civil Appeal No.14915 of 2024 etc. Page 11 of 16
provisions of the 1995 Act. He would, therefore, submit
that no interference is called for.
CONSIDERATION OF SUBMISSIONS
th
17. We have perused the G.O. dated 18 May 2013,
which was published in the State Government Gazette
th
dated 24 May 2013. A copy of the G.O. is annexed as
Annexure P-2 in Civil Appeal No.14915 of 2024. The
relevant part of the G.O. reads thus: -
“On the basis of detailed examination
conducted by the Government in this
regard, order is issued creating
supernumerary posts for granting re-
appointment to about 2677 physically
handicapped who had completed 179
days of service, after being
temporarily appointed as per K.S &
S.S.R. Part Il, Rule 9(A)(i), through
employment exchange during the
period between 16.08.1999 till
31.12.2003 and granting re/regular
appointment to the said employees in
exercise of the power under Rule 39 of
the General Rules, in such a manner
whereby the said supernumerary
posts shall cease to exist upon
retirement of the said employees from
service.
Detailed guidelines regarding
regular appointment of the said
employees shall be issued later .”
(emphasis added)
Civil Appeal No.14915 of 2024 etc. Page 12 of 16
18. Thus, the G.O. can be analysed as under: -
a. The G.O. authorised the creation of
supernumerary posts for granting reappointment
to about 2677 persons with disability who have
completed 179 days of service;
b.
The G.O. was applicable to those persons with
disability who were employed through the
employment exchange during the period from the
th st
16 August 1999 till 31 December 2003;
c. The G.O. specifically provided that detailed
guidelines regarding the “regular appointment” of
the said employees shall be issued later; and
d. On the retirement of the employees
accommodated in supernumerary posts, the same
shall cease to exist on the retirement of the said
employees.
19. Thus, the intention was to give regular appointments
to those persons with disability who were working on
temporary posts through the employment exchange and
th st
who were employed between 16 August 1999 and 31
December 2003. Thus, the intention was to grant
permanency to those persons with disability.
Civil Appeal No.14915 of 2024 etc. Page 13 of 16
20. The orders of the reappointment of the appellants in
Civil Appeal No.14915 of 2024 at annexures P-6 and P-7
show that :-
a. The appointment was made on probation for a
period of one year within a continuous period of
two years, as per the Mahatma Gandhi University
Statutes;
b. The posts occupied by the appellants will be
exhausted as and when they retire from service;
and
c. The National Pension Scheme will apply to the
st
appointments from 1 April 2013.
Thus, the employment of the appellants was regular
employment on a regular basis, as they were treated as
having been appointed on probation.
rd
21. Thereafter, G.O. dated 3 February 2016 was issued,
which was specifically made applicable to the beneficiaries
th
under the G.O. dated 18 May 2013. Clause 3.5 thereof
provides that those who are appointed on the basis of the
th
G.O. dated 18 May 2013 shall not be eligible for seniority
and completion of probation as other regular employees,
as this category of employees was appointed on
supernumerary posts. Therefore, there cannot be any
combined seniority list also.
Civil Appeal No.14915 of 2024 etc. Page 14 of 16
22. In case of the appellants in other appeals, the
appointment orders do not record that the appellants will
not be entitled to the benefits of completion of probation or
promotion.
th
23. The G.O. dated 18 May, 2013, is to ensure that the
persons with disability appointed through the employment
exchange in a particular post should be regularly
appointed. Therefore, all of them were appointed on
rd
probation. Now, by the subsequent G.O. dated 3
February 2016, what is conferred on the appellants by the
th
G.O. dated 18 May 2013 cannot be withdrawn.
th
Moreover, many appellants based on the G.O. dated 18
May 2013 changed their position and opted for other
employment for securing the benefits under the G.O. The
G.O. contemplates regular appointments to be given.
rd
Clause 3.5 of the G.O. dated 3 February, 2016 seeks to
withdraw what is specifically conferred by the G.O. dated
th rd
18 May 2013. Hence, the G.O. dated 3 February 2016
is discriminatory and irrational and therefore, violative of
Article 14 of the Constitution of India.
24. Hence, we pass the following order:
i) We set aside the impugned judgments of the
Division Bench of the Kerala High Court;
Civil Appeal No.14915 of 2024 etc. Page 15 of 16
ii) We restore the judgments of the learned
Single Judge of the Kerala High Court and the
judgments of the Kerala Administrative
Tribunal, which were set aside by the
impugned judgments of the Division Bench;
iii) The appeals are accordingly allowed.
.....…………………………….J.
(Abhay S Oka)
....…………………………….J.
(Augustine George Masih)
New Delhi;
May 23, 2025.
Civil Appeal No.14915 of 2024 etc. Page 16 of 16
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 14915 OF 2024
Maya P.C. & Ors. … Appellants
versus
The State of Kerala & Anr. … Respondents
with
CIVIL APPEAL NOS.14916-14917 OF 2024
CIVIL APPEAL NO.14918 OF 2024
and
CIVIL APPEAL NO.14919 OF 2024
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellants in these Civil Appeals are persons
with benchmark disabilities, each with a physical
disability exceeding 40%. They were engaged in various
public institutions in the State of Kerala under Rule 9(a)(i)
Signature Not Verified
of the Kerala State and Subordinate Service Rules, 1958
Digitally signed by
KAVITA PAHUJA
Date: 2025.05.23
17:54:12 IST
Reason:
(for short, “the KS & SSR”), which governs temporary
Civil Appeal No.14915 of 2024 etc. Page 1 of 16
appointments made in public interest, for a period not
exceeding 179 days.
2. By a Government Order (for short, “the G.O.”) dated
th
18 May 2013, the State Government of Kerala (first
respondent) resolved to regularise the services of 2,677
physically disabled persons against supernumerary posts,
who had been engaged temporarily through employment
exchange under Rule 9(a)(i) of the KS & SSR between 16th
August 1999 and 31st December 2003. According to the
said G.O., the appellants were to be reappointed to
supernumerary posts created solely for their absorption.
The said G.O. further stipulated that such supernumerary
posts would stand abolished upon the retirement of the
incumbents.
3. Pursuant to the above G.O., the appellants were
reappointed on a regular basis in their respective
rd
departments. However, by a subsequent G.O. dated 3
February 2016, the first respondent, inter alia, declared
that such reappointed persons shall not be eligible for
declaration of probation, inclusion in the combined
seniority list, or consideration for promotion.
4. The appellants, feeling aggrieved by the imposition of
these restrictions, adopted their remedies as discussed
herein below. It is in the backdrop of the aforesaid common
Civil Appeal No.14915 of 2024 etc. Page 2 of 16
facts that the cases of individual appellants must now be
adverted to.
5. In this batch of Civil Appeals, Civil Appeal Nos. 14915
of 2024, 14916-17 of 2024 & 14918 of 2024 arise out of a
st
common impugned judgment dated 1 February 2021,
delivered by the Division Bench of the Kerala High Court.
Whereas, Civil Appeal No. 14919 of 2024 arises out of the
th
impugned judgment dated 5 March 2021, delivered by
the co-ordinate Division Bench of the Kerala High Court by
st
relying upon the above judgment dated 1 February 2021.
6. Civil Appeal No. 14915 of 2024
6.1 The appellants herein were appointed as
Assistants in Mahatma Gandhi University (second
respondent), through employment exchange for
179 days under Rule 9(a)(i) of KS & SSR, between
16.08.1999 and 31.12.2003. Pursuant to G.O.
th th
dated 18 May 2013 and 7 August 2013,
appellant nos. 1 to 10 were reappointed by an
th
order dated 10 December 2013, and appellant
nos. 11 and 12 were reappointed by a subsequent
th
order dated 27 March 2014. Notably, appellants
Nos. 11 and 12 were earlier holding regular posts
as peons in the revenue department and had
Civil Appeal No.14915 of 2024 etc. Page 3 of 16
resigned from their posts to avail themselves of
th
the benefit under the G.O. dated 18 May 2013.
6.2 Upon completion of probation and passing the
requisite departmental tests, the appellants were
included in the final seniority list of assistants.
rd
However, following the G.O. dated 3 February
2016, their names were excluded from the
combined seniority list, and they were denied the
benefit of promotion.
rd
6.3 The appellants challenged the said G.O. dated 3
February 2016 by filing Writ Petition (Civil) No.
9832 of 2016 before the Kerala High Court. The
learned Single Judge allowed the writ petition on
th
13 September 2017 and directed the
respondents to grant the petitioners the benefits
of seniority, declaration of probation, and
promotion. The learned Single Judge held that
rd
G.O. dated 3 February 2016 was contrary to the
principles of equality and fair treatment and noted
that once the person is appointed to a post, he is
entitled to be treated equally on par with his
counterparts. However, in a writ appeal by the
first respondent, the Division Bench of the High
Court reversed the judgment of the Single Judge.
The Division Bench upheld the provisions of the
Civil Appeal No.14915 of 2024 etc. Page 4 of 16
said G.O. dated 3rd February 2016, prompting the
appellants to approach this Court.
7. Civil Appeal No. 14916-14917 of 2024
7.1 The appellant, who has 50% disability, was
initially engaged on a temporary basis in the
Kerala Public Service Commission (KPSC) under
Rule 9(a)(i) of the KS & SSR for 179 days.
Thereafter, she was selected through regular
recruitment and appointed as Lower Division
Clerk (LDC) at Central Plantation Crops Research
Institute (CPCRI) under the Indian Council of
Agricultural Research. On the issuance of G.O.s
th th
dated 18 May 2013 and 7 August 2013, she
resigned from CPCRI and rejoined the KPSC as
Assistant on 12th December 2013, pursuant to
appointment against a supernumerary post.
7.2 Having cleared the relevant departmental
examinations, the appellant sought a declaration
of probation and inclusion in the seniority list.
However, her request was declined, citing the G.O.
rd
dated 3 February 2016. Aggrieved thereby, the
appellant filed an Original Application before the
Kerala Administrative Tribunal (for short, “the
th
tribunal”). On 12 July 2019, the tribunal allowed
Civil Appeal No.14915 of 2024 etc. Page 5 of 16
her claim by following the judgment of the Single
Judge of the Kerala High Court in W.P. (C) No.
th
9832 of 2016, dated 13 September 2017.
However, the Division Bench of the Kerala High
Court reversed the tribunal’s order vide impugned
st
order dated 01 February 2021, holding that the
appellant’s appointment being against a
supernumerary post was a policy concession, and
therefore, the benefits of promotion and seniority
could not be claimed as a matter of right. The
present Civil Appeal arises therefrom.
8. Civil Appeal No. 14918 of 2024
8.1 The appellant was appointed as LDC in the Civil
th
Supplies Department under the G.O. dated 18
May 2013. He completed his probation and
successfully cleared the departmental tests.
Despite his inclusion in the provisional seniority
list, he was excluded from the final list in view of
rd
the restrictions contained in the G.O. dated 3
February 2016.
8.2 He approached the tribunal by filing an Original
th
Application, which was allowed on 11 October
2019 by following the order of the Single Judge of
the Kerala High Court in aforesaid W.P. (C) No.
Civil Appeal No.14915 of 2024 etc. Page 6 of 16
th
9832 of 2016 dated 13 September 2017. The
tribunal granted him full-service benefits.
However, the Division Bench of the Kerala High
st
Court vide impugned order dated 01 February
2021 reversed the order of the tribunal, holding
that the appellant’s appointment being against a
supernumerary post was a policy concession, and
therefore, the benefits of promotion and seniority
could not be claimed as a matter of right.
9. Civil Appeal No. 14919 of 2024
9.1 The appellant, with 40% permanent disability,
was appointed as Rehabilitation Technician Grade
II under Rule 9(a)(i) of KS & SRR and subsequently
reappointed against a supernumerary post in the
Medical Education Department. His appointment
th
was regularised with effect from 15 October
2013, and he was declared to have completed his
th
probation. On 9 March 2017, he was promoted
to the post of Grade I Technician (Prosthetics).
9.2 However, the Health Department issued an order
th
dated 7 April 2018, cancelling his promotion and
rd
regularisation, citing the G.O. dated 3 February
2016 and stating that those appointed to
Civil Appeal No.14915 of 2024 etc. Page 7 of 16
supernumerary posts do not have claims to
regularisation or promotion.
9.3 The appellant challenged the aforesaid order by
filing an Original Application before the tribunal,
th
which ruled in his favour vide order dated 16
October 2019 and set aside the order of the Health
th
Department dated 7 April 2018. The tribunal
found that the restrictions were discriminatory
and contrary to the Rights of Persons with
Disabilities Act, 2016. The Division Bench of the
Kerala High Court, however, set aside the
tribunal’s order vide impugned judgment dated
th
05 March 2021, relying on the common
judgment rendered by the co-ordinate Division on
st
1 February 2021 in connected matters, wherein
it was held that appointments made against
supernumerary posts under a concessional
scheme do not confer enforceable rights to
promotion or seniority.
SUBMISSIONS
10. The learned senior counsel appearing for the
appellants submitted that neither of the aforesaid G.O. 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
Civil Appeal No.14915 of 2024 etc. Page 8 of 16
would be compelled to remain in the same post until their
retirement.
11. It was submitted that the appellants were included in
the seniority list and, in several cases, probation had also
rd
been declared. Thus, the G.O. dated 3 February 2016, by
which the first respondent purported to deny the
appellants the benefits of probation, seniority, promotion
and transfer, was issued after the appellants had
completed more than three years of satisfactory service.
The learned senior counsel drew our attention to the fact
that some of the appellants, including appellants nos. 11
and 12 in Civil Appeal No. 14915 of 2024, had voluntarily
resigned from regular government service in the
expectation that they would be treated as regular
employees of the university upon reappointment.
12. Learned senior counsel for the appellants further
submitted that the High Court committed a further error
in holding that the appellants could not 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, 1995 (the 1995 Act) or the
Rights of Persons with Disabilities Act, 2016 (the 2016
Act). It was submitted that such reasoning negates the
constitutional mandate under Articles 14 and 16.
Civil Appeal No.14915 of 2024 etc. Page 9 of 16
13. Learned senior counsel appearing for the appellant
submitted that the action of the respondents is completely
against the mandate of Section 33 of the 2016 Act, which
provides for a 3% reservation for the persons with
disability. His submission is that denying the benefit of
completing probation and promotion would be contrary to
the spirit of the 1995 and 2016 Acts. He submitted that
the G.O. dated 18th May 2013 grants regularisation to the
persons with disability who were working temporarily. He
th
submitted that what is given by this G.O. dated 18 May
2013 cannot be withdrawn subsequently to the prejudice
th
of the beneficiaries of the G.O. dated 18 May 2013.
14. The learned senior counsel for the first respondent
th
submitted that the objective of the G.O. dated 18 May
2013 was to ensure a reasonable accommodation for
persons with disabilities and that no further competition
procedures had been applied in favour of the beneficiaries.
th
It was submitted that the G.O. dated 18 May 2013 clearly
stated that the respective posts of the beneficiaries will be
cancelled as and when the employee retires from their
post.
15. The learned senior counsel further contended that
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the benefits conferred under the G.O. dated 18 May 2013
already include salary, increments, pension, leave and
other allowances. Extending further service benefits, such
Civil Appeal No.14915 of 2024 etc. Page 10 of 16
as promotion, would set an unfair precedent and disrupt
the rights of regularly appointed employees. It was thus
submitted that the action taken by the first respondent in
rd
issuing the clarification dated 03 February 2016 was
corrective in nature and does not suffer from any illegality
or arbitrariness.
16. The submission of the learned senior counsel
appearing for the first respondent and others is that the
th
G.O. dated 18 May 2023 is by way of concession and
therefore, as rightly held by Division Bench of the High
Court, the appellants cannot claim anything which is not
th
provided in the G.O. dated 18 May 2013 as a matter of
right. Learned counsel appearing for the respondents
pointed out the findings recorded by the High Court in the
impugned judgment and order. He submitted that the
Division Bench has relied upon a binding decision of this
Court in the case of Secretary, State of Karnataka and
1
Ors. v. Uma Devi (3) and Ors . Learned counsel
submitted that supernumerary posts were created to
accommodate the appellants and therefore, they cannot be
treated as regular employees. They are not entitled to
benefits which are available to the regular employees. He
pointed out that the Division Bench has not considered the
1
(2006) 4 SCC 1
Civil Appeal No.14915 of 2024 etc. Page 11 of 16
provisions of the 1995 Act. He would, therefore, submit
that no interference is called for.
CONSIDERATION OF SUBMISSIONS
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17. We have perused the G.O. dated 18 May 2013,
which was published in the State Government Gazette
th
dated 24 May 2013. A copy of the G.O. is annexed as
Annexure P-2 in Civil Appeal No.14915 of 2024. The
relevant part of the G.O. reads thus: -
“On the basis of detailed examination
conducted by the Government in this
regard, order is issued creating
supernumerary posts for granting re-
appointment to about 2677 physically
handicapped who had completed 179
days of service, after being
temporarily appointed as per K.S &
S.S.R. Part Il, Rule 9(A)(i), through
employment exchange during the
period between 16.08.1999 till
31.12.2003 and granting re/regular
appointment to the said employees in
exercise of the power under Rule 39 of
the General Rules, in such a manner
whereby the said supernumerary
posts shall cease to exist upon
retirement of the said employees from
service.
Detailed guidelines regarding
regular appointment of the said
employees shall be issued later .”
(emphasis added)
Civil Appeal No.14915 of 2024 etc. Page 12 of 16
18. Thus, the G.O. can be analysed as under: -
a. The G.O. authorised the creation of
supernumerary posts for granting reappointment
to about 2677 persons with disability who have
completed 179 days of service;
b.
The G.O. was applicable to those persons with
disability who were employed through the
employment exchange during the period from the
th st
16 August 1999 till 31 December 2003;
c. The G.O. specifically provided that detailed
guidelines regarding the “regular appointment” of
the said employees shall be issued later; and
d. On the retirement of the employees
accommodated in supernumerary posts, the same
shall cease to exist on the retirement of the said
employees.
19. Thus, the intention was to give regular appointments
to those persons with disability who were working on
temporary posts through the employment exchange and
th st
who were employed between 16 August 1999 and 31
December 2003. Thus, the intention was to grant
permanency to those persons with disability.
Civil Appeal No.14915 of 2024 etc. Page 13 of 16
20. The orders of the reappointment of the appellants in
Civil Appeal No.14915 of 2024 at annexures P-6 and P-7
show that :-
a. The appointment was made on probation for a
period of one year within a continuous period of
two years, as per the Mahatma Gandhi University
Statutes;
b. The posts occupied by the appellants will be
exhausted as and when they retire from service;
and
c. The National Pension Scheme will apply to the
st
appointments from 1 April 2013.
Thus, the employment of the appellants was regular
employment on a regular basis, as they were treated as
having been appointed on probation.
rd
21. Thereafter, G.O. dated 3 February 2016 was issued,
which was specifically made applicable to the beneficiaries
th
under the G.O. dated 18 May 2013. Clause 3.5 thereof
provides that those who are appointed on the basis of the
th
G.O. dated 18 May 2013 shall not be eligible for seniority
and completion of probation as other regular employees,
as this category of employees was appointed on
supernumerary posts. Therefore, there cannot be any
combined seniority list also.
Civil Appeal No.14915 of 2024 etc. Page 14 of 16
22. In case of the appellants in other appeals, the
appointment orders do not record that the appellants will
not be entitled to the benefits of completion of probation or
promotion.
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23. The G.O. dated 18 May, 2013, is to ensure that the
persons with disability appointed through the employment
exchange in a particular post should be regularly
appointed. Therefore, all of them were appointed on
rd
probation. Now, by the subsequent G.O. dated 3
February 2016, what is conferred on the appellants by the
th
G.O. dated 18 May 2013 cannot be withdrawn.
th
Moreover, many appellants based on the G.O. dated 18
May 2013 changed their position and opted for other
employment for securing the benefits under the G.O. The
G.O. contemplates regular appointments to be given.
rd
Clause 3.5 of the G.O. dated 3 February, 2016 seeks to
withdraw what is specifically conferred by the G.O. dated
th rd
18 May 2013. Hence, the G.O. dated 3 February 2016
is discriminatory and irrational and therefore, violative of
Article 14 of the Constitution of India.
24. Hence, we pass the following order:
i) We set aside the impugned judgments of the
Division Bench of the Kerala High Court;
Civil Appeal No.14915 of 2024 etc. Page 15 of 16
ii) We restore the judgments of the learned
Single Judge of the Kerala High Court and the
judgments of the Kerala Administrative
Tribunal, which were set aside by the
impugned judgments of the Division Bench;
iii) The appeals are accordingly allowed.
.....…………………………….J.
(Abhay S Oka)
....…………………………….J.
(Augustine George Masih)
New Delhi;
May 23, 2025.
Civil Appeal No.14915 of 2024 etc. Page 16 of 16