W.P.(C).No.9832 of 2016 (D)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2017/22ND BHADRA, 1939** ## **WP(C).No. 9832 of 2016 (D)** ## **---------------------------** ## **PETITIONER(S): -----------------------** **1. ANCY.K, ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **2. MAYA P.C.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **3. SOLY ABRAHAM,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **4. MOLLYKUTTY A.T.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **5. RAMADEVI N.S.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **6. SABU M.R.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **7. BABU JOHN,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** **8. BINDU M.G., ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** **9. SHIBU C.J., ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** **TS** **WP(C).No. 9832 of 2016 (D)** ## **--------------------------------------** ## **10. MERCY T.VARGHESE,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **11. BIBY SAIDU P.S.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **12. LATHA K.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **13. SURESH N.,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **14. ANITHA NEELAKANTAN,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **15. SEENIA SEBASTIAN,** **ASSISTANT, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM.** ## **BY ADVS.SRI.BRIJESH MOHAN SRI.P.C.SASIDHARAN** ## **RESPONDENT(S):** ## **------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF SOCIAL JUSTICE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **2. MAHATMA GANDHI UNIVERSITY,** **REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM-686630.** **R1 BY SENIOR GOVERNMENT PLEADER SMT.NISHA BOSE R2 BY ADV. SRI.VARUGHESE M.EASO, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 9832 of 2016 (D)** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------------** - **EXHIBIT P1 : COPY OF THE GOVERNMENT ORDER GO(P)NO.40/13/SWD DT. 18-5-13.** - **EXHIBIT P2 : COPY OF THE GOVERNMENT ORDER GO(P)NO.63/13/SWD DT. 7-8-13.** - **EXHIBIT P3 : COPY OF THE GOVERNMENT ORDER GO(P) NO.80/13/SWD DT. 7-10-13.** - **EXHIBIT P4 : COPY OF THE GOVERNMENT ORDER GO(P)NO.96/13 /SWD DT .8-11-13.** - **EXHIBIT P5 : COPY OF THE ORDER NO.6336/A1/1/2013/ADMN DT.10-12-13 OF R2.** - **EXHIBIT P6 : COPY OF THE ORDER NO.1634/A1/1/2013/ADMN DT.27-3-14 of THE 2ND RESPONDENT.** - **EXHIBIT P7 : COPY OF THE ORDER UO 6462/AD.CII/16/14 DT.22-12-14 OF 2ND RESPONDENT.** - **EXHIBIT P8 : COPY OF THE CIRCULAR NO.AD A1-1-219/15 DT.6-11-15 OF 2ND RESPONDENT UNIVERSITY.** - **EXHIBIT P9 : COPY OF THE GOVERNMENT ORDER GO(P)P.NO.01/16/SJD DT.3-2-16.** - **EXHIBIT P10 :COPY OF THE CERTIFICATES SHOWING QUALIFICATION AND DISABILITY OF ALL THE PETITIONERS.** ## **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.9832 of 2016** **-------------------------------------** Dated this the 13[th] day of September, 2017 ## **J U D G M E N T** Petitioners, who were appointed as Assistants in Mahatma Gandhi University as per Exts.P5 and P6 orders issued in December 2013 and March 2014, are physically handicapped employees. Government had issued Ext.P1 order-G.O.(P).No.40/2013 dated 18.05.2013, offering appointment to the physically handicapped candidates, who had worked for a period of 179 days through Employment Exchange during the period from 16.08.1999 to 31.12.2003, in the respective establishments where they worked after creating supernumerary posts. By Ext.P1 order, Government ordered reappointment of 2677 physically handicapped persons who had worked during the aforesaid period. Ext.P1 order was followed by Ext.P2 order issued on 07.08.2013, extending the benefit of Ext.P1 order to Local Self Government Institutions, W.P.(C).No.9832 of 2016 2 Boards, Corporations, Public Sector Undertakings, Cooperative Institutions, Universities, Kerala Public Service Commissions etc. In the Annexure to Ext.P2 order, the details of the employees, who were found eligible for such re-appointments, were given along with their names and the respective establishments in which they were to be appointed. As per Ext.P3 order issued on 07.10.2013, Government ordered that those who had already got regular appointment through Public Service Commission or through Employment Exchange in the meanwhile, need not be given reappointment as per Exts.P1 and P2 orders. However, as per Ext.P4 order issued on 08.11.2013, the said provision in Ext.P3 was withdrawn. 2. Some of the petitioners had already got regular appointment through Employment Exchange/Public Service Commission in the meanwhile. However, in view of Ext.P4 order, they accepted the re-appointment offered to them as per Ext.P2 order. The 2[nd] respondent University appointed the petitioners as per Exts.P5 and P6 orders in 12/2013 W.P.(C).No.9832 of 2016 3 and 03/2014 in the post of Assistants in the scale of pay of Rs.13900-24040. All of them were included in the National Pension Scheme, since their regular appointments were issued subsequent to April 2013. 3. In Ext.P5 order, it was stated that the position of the petitioners appointed by that order in the seniority list of Assistants would be immediately below Smt.Aniamma Manual, Assistant, as the junior most Assistant as on the date of entry in the University” **.** In the case of those appointed as per Ext.P6 order, it was stated that their position in the seniority list of Assistants would be immediately below Smt.Anithamma K.K, Assistant, the junior most Assistant as on that day, in the order of their seniority shown in that chart of appointment. As per Ext.P7 order issued on 22.12.2014 probation in respect of 4 of the petitioners was declared, on completion of one year duty with effect from 07.11.2014. 4. Petitioners appeared in the departmental test and were included in Ext.P8 list of test qualified W.P.(C).No.9832 of 2016 4 hands. While so, Government issued Ext.P9 order on 03.02.2016. In Ext.P9 order, it was stated that though 2677 physically handicapped candidates were given reappointment as per Exts.P1 and P2 orders and they had been working in various establishments, orders on their conditions of services were not issued. Government therefore ordered that they would be entitled to the benefit of : - (1) leave, travelling allowance, daily allowance and medical reimbursement as admissible to permanent employees; - (2) increment as admissible to permanent employees; - (3) contribution to provident fund; - (4) pension. 5. It is made clear that those who entered service subsequent to 01.04.2013 would be governed by the National Pension Scheme and their retirement age would be 60 years. As per clause 5 of the order they would not be eligible for seniority as well as for declaration of probation, since they were appointed against supernumerary posts and they have to retire W.P.(C).No.9832 of 2016 5 from service from the supernumerary post in which they were appointed, as provided in Ext.P1 order. Clause 6 provided that they would not be entitled for promotion and there would not be any combined seniority list including persons like petitioners who got reappointment and they would not be eligible for promotion as admissible to the permanent hands. It was further provided that they would not be liable for transfer from one District to another District. However, it was stated that they will be governed by Kerala Government Servants Conduct Rules and Kerala Civil Services (Classification, Control and Appeal) Rules. Petitioners are challenging the provisions contained in clause 5 and 6 of Ext.P9 order. On the basis of Ext.P9 order, petitioners who were qualified in the departmental test were not given promotion. This writ petition was filed in the above circumstances. 6. The 1[st] respondent has filed a counter affidavit, stating that even at the time when Ext.P1 order was issued it was made clear that reappointment W.P.(C).No.9832 of 2016 6 was against supernumerary posts and those posts would be abolished as and when the persons reappointed retire from service **.** It is stated that reappointment given to persons like the petitioners was a concession and therefore they are not entitled to any other benefits. It is further pointed out that they will not be eligible for promotion since they are continuing in supernumerary post over and above the cadre strength. It is stated that reappointment was given to 2677 physically handicapped persons who worked during 16.8.1999 to 31.12.2003 on appointment through Employment Exchange for a period of 179 days, making it clear that their appointments were against supernumerary posts. It is further stated that Government had by G.O.(P) No.31/2008/SWD entrusted the Public Service Commission to advise candidates for appointment against 3% of the vacancies in various categories in Government service in accordance with section 33 of the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). It is W.P.(C).No.9832 of 2016 7 further stated that before the selection was entrusted to PSC, physically handicapped candidates were being appointed through District Collectors under the special scheme. The 1[st] respondent further stated that Government is committed to safeguard the interests of the candidates who are waiting for appointment/promotion through the normal process and procedures. Therefore, the disabled persons appointed on the basis of Exts.P1 and P2 orders were ordered to be treated as separate category without integrating them with the regular employees. It is also stated that except for promotion, seniority and declaration of probation, all other benefits are granted to the re-appointed physically handicapped candidates. According to the 1[st] respondent, there is no discrimination against the reappointed persons. According to the 1[st] respondent, large number of disabled persons are available and their regularization in future vacancies would adversely affect the regular appointment of candidates through PSC and their regularization in future vacancies W.P.(C).No.9832 of 2016 8 would take several years. According to them, persons like petitioners who are reappointed would get double benefits in case they are granted promotion. It is also pointed out that under section 33 of the Persons with Disabilities Act, appointments are made through PSC. The respondents have stated that reappointment of the petitioners was an act of concession on the basis of compassion to physically handicapped candidates and they are enjoying all other benefits as in the case of regular employees. It is also their case that granting of any benefit to persons like petitioners would adversely affect the legitimate claim of the persons with disability, who are appointed through PSC or through regular and normal channel. According to the respondents, Government have brought persons like petitioners to the regular stream by way of reappointment on the basis of a policy decision. The respondents rely on the judgment of the Apex Court in **State of Karnataka vs. Umadevi** [2006 (4) SCC page 1], pointing out that appointment is given when regularization is not permissible in W.P.(C).No.9832 of 2016 9 exercise of executive powers of Government. Therefore, the contention of the respondents is that granting of promotion to persons like petitioners would adversely affect the regular employees and it would result in huge financial burden. Smt. Nisha Bose, the learned Senior Government Pleader vehemently argued that the benefits already granted to the petitioners in Ext.P9 are more than sufficient and the petitioners who got appointment as a concession as per Exts.P1 and P2 are governed by those orders in which it was ordered that they would be posted in supernumerary posts which would be abolished on their retirement. Therefore, petitioners could not have expected to enjoy any more benefits when they are getting all other benefits as in the case of regular employees other than declaration of probation, seniority and promotion. 7. On consideration of the pleadings and contentions on either side, it is seen that the petitioners, who left their regular appointment to join the University based on the permanent re- W.P.(C).No.9832 of 2016 10 appointment offered to them as per Ext.P2 read with Ext.P4 are retained in the very same posts without giving them any further avenue for promotion. At the same time, it is relevant to note that Exts.P5 or Ext.P6 orders by which petitioners were re-appointed do not say that they would not be considered for any promotion. On the other hand what was stated in those orders were that they would be ranked immediately below the junior most Assistant in the seniority list, as on the date of their entry in the University. The orders Exts.P1 and P2 also do not say that persons like petitioners would not be granted any benefit, though it is stated that they were to be appointed/reappointed against supernumerary post. Nothing is discernible from Exts.P1 or P2 that they would have to continue in the same post for ever till their retirement. Government issued Exts.P1 and P2 offering reappointment/regular appointment to the physically handicapped candidates who worked during the period from 16.8.1999 to 31.12.2003 through Employment Exchange, in such a manner that it would W.P.(C).No.9832 of 2016 11 appear that the Government were committed to bring the disabled persons to the main stream, even without any request from them. Government themselves found it necessary to implement schemes to help the physically handicapped persons by giving them reappointment/regular appointment on the ground that they had worked through Employment Exchange for a period of 179 days during certain period. Persons who worked during the said period were included in the list annexed to the Government orders by which reappointment was ordered. 8. But though this appointment was made as part of implementation of a scheme for protecting the physically handicapped candidates by giving them reappointment/regular appointment, it is after 3 years of completion of their service that Ext.P9 order was issued in 2016 saying that they would not be entitled for seniority or declaration of probation as well as promotion. Petitioners themselves pointed out that some of them were regularly appointed otherwise, at the time of their appointment as per W.P.(C).No.9832 of 2016 12 Exts.P5 and P6 orders on the basis of Exts.P1 and P2 orders. Exts.P3 as well as Ext.P4 would show that Government had initially directed not to appoint those who had already got regular appointment. But, for reasons known to them, they deviated from their original stand by issuing Ext.P4 withdrawing their original direction in Ext.P3 and allowing appointment of those who had in the meanwhile got regular appointment also. Persons like petitioners had every reason for legitimate expectation that on a regular/permanent re-appointment they would be entitled to all service benefits. But, by accepting regular appointment/reappointment based on Exts.P1 and P2 orders persons like petitioners could not even utilise opportunities even to apply for regular appointment otherwise/lost their opportunity to continue in the respective institutions based on regular appointment they had already got and to enjoy the benefit of promotion. 9. It is true that the act of Government in reappointing the physically challenged persons was an W.P.(C).No.9832 of 2016 13 act of compassion or concession. But it is equally true that the denial of promotion in preference to those who joined an establishment subsequent to their re-appointment would be not only a negation of equality but also a punishment. The fact that section 33 of PWD Act provides for 3% of reservation to physically handicapped and that such appointees under the 3% quota are eligible for all benefits on the basis of such appointments cannot be a reason for denying all the service benefits to persons appointed as per Exts.P1 and P2. But that does not mean that one set of employees who were given appointment in 2013 and 2014 should continue in the same post. When petitioners were given regular appointment based on Exts.P1 and P2 orders and Exts.P5 and P6 orders issued by the University and were placed below those Assistants who were working as on that day in the University and were performing the very same duties as the other Assistants, there is no reason why they should be denied the benefits of promotion on the basis of their position in the seniority list and W.P.(C).No.9832 of 2016 14 their qualification in preference to those who joined the University subsequent to them. The reliance placed on **State of Karnataka V Umadevi** [2006 (4) SCC 1] by the respondents is misplaced, after the respondents themselves awakened persons like petitioners by giving them regular and permanent appointment. Classifying them as a separate group for the purpose of probation, promotion, seniority, etc, is unreasonable. Nothing prevented the respondents from absorbing them in the regular vacancies which arose within the cadre strength subsequent to their joining duty. There is no justification in refusing to declare their probation, on completion of the requisite period of service. At any rate, they were not told that they would not be entitled to any of such benefits at the time of their appointment. They have already acquired qualification for such promotion. The denial of the benefits mentioned in clause 5 and 6 of Ext.P9 will have only a demoralizing and penal effect on the physically disabled persons, apart from an insult to their W.P.(C).No.9832 of 2016 15 disability, in violation of their fundamental rights under Articles 14 and 16 of the Constitution of India. The very purpose behind the avowed object in Exts.P1 and P2 would get defeated by clause 5 and 6 of Ext.P9 order. 10. Once a person is appointed to a post and he joins an institution like the University or any establishment which is having the characteristic of a State under Article 12, he is entitled to be treated equally on par with his counterparts, with reference to his qualification, for all purposes. When the State is duty bound to provide sufficient avenues of promotion to its employees avoiding stagnation, refusal to consider a group of employees for promotion in the avenues which are available when their juniors/persons joined the establishments subsequent to them and doing the very same work, on the basis of the source of their appointment is nothing but unjust, unfair and unconstitutional and amounts to even disrespect to the dignity of petitioners and is in violation of human rights. It W.P.(C).No.9832 of 2016 16 is more so when they were not told at the time of offering appointment to them that they will be retained in the same posts. 11. The contention of the learned Government Pleader that Exts.P1 and P2 provided that the reappointment of the petitioners and others were only against supernumerary posts which were to be abolished on their retirement itself, was sufficient indication for persons like petitioners that they would have to retire from service from the same post. But I am unable to accept such a contention, as no prudent man, would on perusal of Ext P1 and P2 order would come to a conclusion that he would be deprived of the benefit of declaration of probation or seniority or promotion, just because it was stated that their appointments were being made against supernumerary posts. 12. 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 W.P.(C).No.9832 of 2016 17 of probation, seniority as well as promotion to petitioners are liable to be declared illegal. In the above circumstances, Clause 5 and 6 of Ext.P9 are set aside. It is declared that the petitioners would be entitled to all benefits on the basis of their appointment as per Exts.P5 and P6 including declaration of probation, promotion and seniority in preference to or on par with their juniors. Sd/- **P.V.ASHA, JUDGE.** AS/rkc