What Is Granted by a Policy Cannot Be Taken Away Arbitrarily: Supreme Court Restores Service Rights of Disabled Employees in Kerala

“Supernumerary Appointments Are Regular When Made on Probation — Denial of Promotion Is Discriminatory and Violates Article 14”: In a landmark decision Supreme Court of India allowed a batch of appeals filed by persons with benchmark disabilities, setting aside a Kerala High Court judgment that had denied them benefits of seniority, promotion, and declaration of probation. The apex court categorically held that “what is conferred by the Government Order dated 18th May 2013 cannot be withdrawn by a subsequent G.O. dated 3rd February 2016,” declaring the latter “discriminatory, irrational and violative of Article 14 of the Constitution.”

“The G.O. dated 3rd February 2016 seeks to withdraw what is specifically conferred by the G.O. dated 18th May 2013. Hence, it is discriminatory and irrational.”

The dispute revolved around disabled individuals who were appointed temporarily through employment exchanges under Rule 9(a)(i) of the Kerala State and Subordinate Services Rules (KS & SSR). By a Government Order dated 18 May 2013, the State of Kerala had created 2,677 supernumerary posts to regularize these employees, all of whom had physical disabilities above 40%. They were reappointed, placed on probation, and treated as regular employees.

However, a subsequent Government Order dated 3 February 2016 declared that such employees—though regularized—would not be entitled to seniority, declaration of probation, or promotion, leading to widespread litigation.

“Appointments made on probation are regular appointments—Clause 3.5 of the 2016 G.O. is unconstitutional”

The Supreme Court examined both the policy documents and service records of the appellants and held that their appointments were not mere policy concessions. The Court noted:

“The G.O. dated 18th May 2013 contemplates regular appointments to be given. Therefore, all of them were appointed on probation.”

Referring to appointment orders and statutory provisions, the Court held: “The employment of the appellants was regular employment on a regular basis, as they were treated as having been appointed on probation.”

The bench comprising Justices Abhay S. Oka and Augustine George Masih found that Clause 3.5 of the subsequent G.O.—which denied the appellants the benefits of seniority and promotion—“seeks to withdraw what is specifically conferred” earlier. This, the Court concluded, is violative of Article 14.

“Many appellants gave up other regular employment expecting parity—Withdrawal of such legitimate expectation is arbitrary”

A particularly important aspect noted by the Court was that many of the appellants had resigned from other regular posts to accept reappointment under the 2013 G.O., believing they would be treated as regular employees. The Court remarked:

“Many appellants based on the G.O. dated 18th May 2013 changed their position and opted for other employment for securing the benefits under the G.O.”

Hence, depriving them of promotional benefits and equal treatment amounted to a violation of the doctrine of legitimate expectation and equality under Article 14 of the Constitution.

“Appointment through supernumerary posts cannot dilute the constitutional mandate under Articles 14 and 16”

Rejecting the State’s argument that appointments under the 2013 G.O. were mere concessions and not made through disability reservations, the Court held that such reasoning was faulty: “Such reasoning negates the constitutional mandate under Articles 14 and 16.”

Further, the Court criticized the Kerala High Court for relying solely on the Uma Devi judgment (2006), which dealt with irregular appointments, and ignoring the facts that in this case, probation was declared, departmental tests were cleared, and regularization had occurred. The Court emphasized:

“What is given by a Government Order cannot be later taken away to the prejudice of the beneficiaries.”

Setting aside the Division Bench’s judgment, the Supreme Court restored the orders of the Single Judge and the Kerala Administrative Tribunal, which had earlier ruled in favor of the appellants. The Court allowed all civil appeals and reiterated that a subsequent clarification cannot undo a statutory benefit validly conferred by the State through a prior Government Order.

Date of Decision: May 23, 2025