Kerala High Court Affirms Govt Order Allotting Reservation For Persons With Disabilities In Govt-Aided Educational Institutions

The Kerala High Court recently held that there was no need to interfere with the Government order and circular regarding reservation for person with benchmark disabilities in the government-aided educational institutions.The State Government had in 2018 issued an order extending the benefit of reservation for people with benchmark disability as mentioned under Person with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and The Right of Persons with Disabilities Act, 2016 to government-aided educational institutions. As per 1995 Act, 3% of the vacancy was reserved for persons with disability. As per 2016 Act, not less that 4% of vacancies in each group of posts is reserved for persons with benchmark disabilities. As per the Government order, the reservation has to be given with effect from 07.02.1996. – 3% reservation for the period of 07.02.1996 – 18.04.2017 and 4% reservation from 19.04.2017.The Kerala High Court in K. J. Varghese v State of Kerala & Others (2022) had directed the Managers of aided school to make appointments as per the 2018 order. In an appeal to this decision, the Division Bench laid down certain additional direction for filling up the vacancies. A Special Leve Petition against the decision of the Division Bench is before the Supreme Court. The Supreme Court has given leave to the petition but has not stayed the direction contained in the decision of the Division Bench of High Court.In the instant case, Justice T. R. Ravi considered challenges by various schools into the mode of appointment which was not decided in the earlier cases.First Vacancy ReservationAs per the government order, reservation has to be done on the first vacancy– that is the first vacancy available in every 25 vacancy block (for 4% reservation) or 33 block (for 3% reservation) is reserved. In the instant case, it was argued that fixation of roster point is not done in cases of horizontal reservation. The Court held that since this is the method to be applied while filling backlog vacancies, there was nothing illegal in fixing roster points. Further, relying on the Supreme Court decision in Union of India v National Federation of Blind & Others (2013) and Gujarat High Court decision in State of Gujarat v Rajesh Motibai Desai (2017) held that there was no need to interfere with the government decision directing roster-based reservation and first vacancy.Filling Up Vacancy From The List From Employment DirectorateIt was argued that the direction to fill up the vacancy from the list provided by the Employment Director and to advertise for the rest of the vacancy which was remaining was an interference on the right of the Managers of the institutions to make appointments. The Court reject this argument saying that the State interference became necessary as the Managers failed to fill the vacancy to the reserved seats.Categorisation of The PostsThe posts in the schools were categorised into Primary, High School. Higher Secondary (Senior), Higher Secondary (Junior), Vocational Higher Secondary (Senior), Vocational Higher Secondary (Junior) and Non-teaching and reservation was mandated in each of these categories. It was argued that if recruitment is done in such manner, the total number of differently abled persons recruited will go beyond the quota prescribed by the statutes.The Court noted that as per the 2016 Act, the 4% reservation is provided on the total number of vacancies in each group of posts. The Court said that if the Government has decided to make such cadres, it cannot be considered to be against the Act. The Court observed that even if such categorization causes the only post to be filled up by a person with disability, the Government order cannot be considered as invalid. The Court added that individual difficulties cannot be the basis for deciding the legality of an order.Inclusion Of Primary School Teachers Category For ReservationThe Court noted that the posts which can be filled up by differently abled persons were identified by the State after a detailed study by the Expert Committee. This was done on the basis of functional classification of the disability and physical requirement of the job. The reservation for differently-abled people in the category of primary school teachers is already implemented in the case of Government schools. Thus, the Court said that the issue whether posts of primary teachers can be included in posts identified for reservation need not be considered.Exclusion Of Posts Reserved For Protected TeachersAs per the Government Circular, the reservation is not to be reckoned in seats reserved for dependants under Chapter XIVA and XXIV A of KER and those reserved for protected teachers. The Court said that those teachers who are relieved on account of reduction of posts or staff fixation has certain rights under the Rules and it cannot be interfered for implementation of the reservation. The Court therefore decided not to interfere with this ...

Kerala High Court Affirms Govt Order Allotting Reservation For Persons With Disabilities In Govt-Aided Educational Institutions

Manju Elsa Isac

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