Supreme Court Allows Appeals of Persons with Benchmark Disabilities Denied Promotion and Seniority Despite Regularisation. Government Order Restricting Service Benefits to Persons with Disabilities Reappointed Against Supernumerary Posts Held Discriminatory and Contrary to Articles 14 and 16 of the Constitution.

Civil appeals against judgments of the Kerala High Court Division Bench which reversed orders of Single Judge and Kerala Administrative Tribunal granting service benefits to persons with benchmark disabilities.

Appellants sought declaration of probation, inclusion in seniority list, and promotion, which were denied by G.O. dated 3rd February 2016.

Appellants, persons with benchmark disabilities, were regularised and reappointed against supernumerary posts under G.O. dated 18th May 2013, but were subsequently denied probation, seniority, and promotion by G.O. dated 3rd February 2016.

Single Judge of Kerala High Court allowed W.P. (C) No. 9832 of 2016 on 13th September 2017; Kerala Administrative Tribunal allowed Original Applications on 12th July 2019, 11th October 2019, and 16th October 2019. Division Bench of Kerala High Court reversed these decisions on 1st February 2021 and 5th March 2021.

Whether the denial of probation, seniority, and promotion to persons with benchmark disabilities regularised against supernumerary posts violates Articles 14 and 16 of the Constitution. Whether the G.O. dated 3rd February 2016 is contrary to the Rights of Persons with Disabilities Act, 2016 and the 1995 Act. Whether the appellants have a legitimate expectation of being treated as regular employees.

Appellants: The G.O. dated 18th May 2013 granted regularisation without any stipulation denying promotion or other benefits; the subsequent G.O. dated 3rd February 2016 is arbitrary and discriminatory; some appellants resigned from regular posts in expectation of regular treatment; the denial violates Articles 14 and 16 and the spirit of the 1995 and 2016 Acts. Respondents: The appointments were a policy concession for reasonable accommodation; no competition procedures were applied; the G.O. dated 18th May 2013 stated posts would be abolished upon retirement; benefits already include salary, increments, pension, etc.; extending further benefits would be impermissible.

Once persons with benchmark disabilities are regularised and reappointed against supernumerary posts, they are entitled to equal treatment with other regular employees in matters of probation, seniority, and promotion. Denial of such benefits by a subsequent Government Order is discriminatory and violates Articles 14 and 16 of the Constitution and the spirit of the Rights of Persons with Disabilities Act, 2016.

The learned Single Judge held that G.O. dated 3rd 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. The Division Bench of the Kerala High Court reversed the judgment of the Single Judge. The tribunal found that the restrictions were discriminatory and contrary to the Rights of Persons with Disabilities Act, 2016. The learned senior counsel for the appellants 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.

Appellants filed writ petitions and original applications before Kerala High Court and Kerala Administrative Tribunal challenging G.O. dated 3rd February 2016. Single Judge and tribunal allowed their claims. Division Bench of Kerala High Court reversed those decisions on 1st February 2021 and 5th March 2021. Appellants then filed civil appeals before the Supreme Court.

• Constitution of India: Articles 14, 16
• Rights of Persons with Disabilities Act, 2016: Section 33
• Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995:
• Kerala State and Subordinate Service Rules, 1958: Rule 9(a)(i)