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2021 Supreme(Online)(KER) 28743
HIGH COURT OF KERALA
Devan Ramachandran, J
SHYJU DAS. P., – Appellant
Versus
STATE OF KERALA, – Respondent
WP(C)/18816/2020
K.P.PRADEEP, T.T.BIJU, K.P.KESAVAN NAIR, SANAND RAMAKRISHNAN, T.THASMI, HAREESH M.R., SRI.V.A.MUHAMMED, SRI.SUNIL JACOB JOSE, CGC, SRI. SUNIL KUMAR KURIAKOSE - GP
The decision affirms that employees appointed to supernumerary posts for the differently abled do not have the same rights as regularly appointed employees regarding promotions and benefits.
Headnote:
Employment - Writ Petitions - G.O(P) No.01/16/SJD, G.O(P) No.40/13/SJD - The court upheld previous judgments concerning the appointment of supernumerary posts for the physically handicapped and clarified restrictions on probation and promotions due to their nature of appointment.
Fact of the Case:
Petitioners challenged their non-consideration for promotions and probation declaration, stemming from a 2016 government order that restricted benefits for supernumerary appointees, created for persons with disabilities by an earlier 2013 order.
Finding of the Court:
The court found that the petitioners were clearly informed of their appointment conditions, which denied them rights to promotion and seniority as supernumerary positions are not regular roles.
Issues: Whether the petitioners, appointed to supernumerary posts, are entitled to probation declarations, service benefits, and promotions under the incumbent government orders.
Ratio Decidendi: The court reiterated previous judgments that recognized the non-regular status of supernumerary appointments, thus confirming that such employees do not possess the same rights as regular employees.
Final Decision: The writ petitions were dismissed.
JUDGMENT
[WP(C) Nos.19598/2016, 18816/2020, 19256/2017]
I am considering these three writ petitions together since they involve analogous, if not identical, factual circumstances and forensic issues.
2. As per the petitioners, in the year 2013, the Government of Kerala issued an order dated 18.05.2013, creating supernumerary posts to accommodate physically handicapped persons who were in temporary service during the years 1999 to 2003. They say that they were working in the category of Clerks, LD Typists and Office Attendants in the entry cadre in the Civil Judicial Wing of the State service and that the probations of some of them were also declared in the years 2014 and 2015.
3. The petitioners assert that their juniors in service were promoted to the higher cadre but that they were not so considered for the sole reason that they were not entited to any of the service benefits available to the permanent employees in such service on account of a subsequent Government order, namely G.O(P)No.01/16/SJD dated 03.02.2016. They say that on the basis of this order, the declaration of some of their probations were rejected, though it was granted with respect to some petitioners, which were also then subsequently withdrawn through an order dated 14.02.2017, for the reason that those persons who obtained reappointments consequent to the Government Order dated 18.05.2013 would not come within the purview of the staff strength for the purpose of ratio promotion.
4. The petitioners allege that solely because of the Government order issued subsequent to their appointment, namely G.O(P)No.01/16/SJD dated 03.02.2016 (a copy of which has been produced on record as Ext.P4 along with the writ petitions), they have been denied declaration of probation. They assert that their reappointments cannot be treated to be merely supernumerary, though their orders of appointments mandate that these posts will cease to exist on their retirement and that they are not entitled to promotion and seniority as in the case of regular employees.
5. The petitioners thus challenge clauses 5 and 6 of Ext.P4 Government order dated 03.02.2016, to the extent to which there is an inhibition of declaration of their probation in service, regularisation as also denial of seniority in promotion.
6. I have heard Dr.K.P.Pradeep, learned counsel appearing for the petitioners; Sri.Sunil Jacob Jose, learned standing counsel appearing on behalf of the High Court of Kerala and Sri.Sunilkumar Kuriakose, learned Government Pleader.
7. Before I venture into the merits of the contentions of the rival parties, I must record that the issues dealt with in these writ petitions have already been answered by a learned Division Bench of this Court in the judgment delivered in WA No.2633/2017 and connected matters. After assessing similar contentions, as have been impelled by the petitioners in these cases, the learned Division Bench declared the law as under:
“12. It is not in dispute that in Umadevi's case (supra), the Constitution Bench had deprecated the practice of regularizing persons engaged on temporary basis. Therefore, as far as the petitioners are concerned, they were all engaged for short periods on a casual basis in various departments of the State during the period between 16/8/1999 till 31/12/2003. Under normal circumstances and in the light of the judgment of the Apex Court aforesaid, they were not entitled for regularization. The Apex Court in the judgment aforesaid had only permitted regularization of persons who had been irregularly appointed, but duly qualified in duly sanctioned posts and have been working for ten years or more without the intervention of orders of the courts or Tribunals. The regularization of such employees was directed to be considered as a one time measure. It is apparent that petitioners will not fall within the said category as they were working only for short periods. However, Government as a policy, to favour differently abled persons, decided to permanen
