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2025 Supreme(Online)(Ker) 68387
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, MURALEE KRISHNA S., JJ
SECRETARY TO GOVERNMENT SOCIAL JUSTICE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – Appellant
Versus
VIJU KUMAR A.AGED 43 YEARS – Respondent
OP(KAT) NO. 54 OF 2020
For the Appellants/Petitioners: B.UNNIKRISHNA KAIMAL
For the Respondents: M.FATHAHUDEEN, JELSON J.EDAMPADAM
The court reaffirmed that discriminatory employment policies violate equality rights, upholding the entitlement of employees with disabilities to regularization and benefits.
Headnote:(A) Administrative Tribunals Act, 1985 - Article 227 of the Constitution of India - Administrative benefits - Discriminatory provisions in government order challenged - Court finds earlier High Court ruling striking down similar clauses applicable - Petitioners granted regularization of service and benefits - Order passed by Tribunal upheld for being just and lawful. (Paras 4, 6)
(B) Employment Law - Legitimacy of appointment to supernumerary posts and their entitlement to benefits - Court reaffirms that discriminatory policies violate the Constitution - New provisions cannot retroactively negate previously conferred rights - Upholds the right to regular employment for individuals with disabilities. (Paras 20-24)
Facts of the case:
This original petition by government officials seeks to overturn the Tribunal’s order granting service benefits to employees appointed under a previous government order deemed discriminatory. The Tribunal’s decision was based on earlier High Court rulings recognizing these provisions as unlawful.
Findings of Court:
The Tribunal’s ruling that previous clauses in the government order were discriminatory was reaffirmed; the applicants are hence entitled to regularization and all associated benefits as regular employees.
Issues: The legality of imposing restrictions on the employees' benefits and the applicability of former High Court judgments.
Ratio Decidendi: The court emphasized that provisions intended to withdraw established benefits from those with disabilities contravene constitutional guarantees of equality and fairness. Regular employment protocols must be honored irrespective of the method of appointment.
Result: The original petition dismissed, affirming the Tribunal’s orders.
| Table of Content |
|---|
| 1. challenge of government policy leading to employment discrimination. (Para 1 , 2) |
| 2. referral to earlier court rulings solidifying current case's legal standing. (Para 3 , 5) |
| 3. tribunal's orders upholding rights against discriminatory provisions. (Para 4 , 6) |
| 4. final dismissal of the original petition based on established legal precedents. (Para 7) |
JUDGMENT
Anil K. Narendran, J.
The respondents in O.A.No.2413 of 2017 on the file of the Kerala Administrative Tribunal at Thiruvananthapuram have filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P5 order dated 20.08.2019 of the Tribunal in that original application, which was one filed by the respondents herein-applicants, invoking the provisions under Section 19 of the Administrative Tribunals Act , 1985, seeking an order to quash Clauses 5, 6 and 7 of Annexure A9 Government order dated 03.02.2016, declaring that the said clauses are arbitrary, discriminatory and unconstitutional; and a declaration that the applicants are entitled to get all service benefits including regularisation of service, declaration of probation, seniority, timely promotion, etc., as in the case of other employees appointed into service in the class/cadre under general recruitment, and consequentially direct the appointing authorities to give the applicants all consequential benefits attached to their respective posts, treating them as regular members of the class/cadre in which they are appointed, from the date of their respective appointment orders and direct the respondents to issue necessary formal orders.
2. Before the Tribunal, respondents 7, 5 and 1 filed Exts.P2, P3 and P4 reply statements, respectively. After considering the rival contentions, the Tribunal by Ext.P5 order dated 20.08.2019, allowed the original application. Paragraphs 4 to 6 of that order read thus;
‘4. The validity of Annexure A9 order was challenged before the Hon’ble High Court of Kerala in W.P.(C)No.9832 of 2013 and by judgment dated 13.09.2017 it is already found that the provisions of Annexure A9 are discriminatory. The Hon’ble High Court has struck down paras (5) and (6) of Annexure A9. It has been held as follows;
“Any person who is appointed in a post cannot be expected to think that he will not be entitled to other benefits admissible to other employees. Clause 5 and 6 of Ext.P9, denying the benefit of declaration of probation, seniority as well as promotion to petitioners are liable to be declared illegal.”
The grounds on which the Hon’ble High Court struck down paras (5) and (6) would apply with equal force in relation to para 7 as well. The same also is therefore set aside.
5. The learned counsel for the applicant also brings to my notice the order of this Tribunal in O.A.(EKM)No.908 of 2017 wherein the entire Annexure A9 order has been set aside. In such circumstances this Original Application also is entitled to be allowed.
6. Paras (5), (6) and (7) of Annexure A9 order is set aside. The applicants who joined service on the basis of orders issued based under the scheme formulated under Annexure A1 have already completed the period of probation. The concerned authorities are, therefore, directed to pass orders regarding the completion of probation of the applicants and regularisation of their service, within a period of two months from the date of receipt of a copy of this order. They would be entitled to all other benefits including promotions just like other regular employees in service.’
3. Challenging the order dated 20.08.2019 of the Tribunal in O.A.No.2413 of 2017, the petitioners-respondents are before this Court in this original petition.
4. On 07.02.2020, when this original petition came up for admission, it was admitted on file and notice was ordered to respondents 1 to 4. This Court granted an interim stay of Ext.P5 order dated 20.08.2019 of the Tribunal in O.A.No.2413 of 2017. The said
