The Kerala High Court recently held that the reservations earmarked for persons with disabilities should be enforced in educational institutions aided by the government during their recruitment process. The Court further held that appointments made post-2018 shall not be implemented unless such reservations were awarded.
While clarifying that approval of appointments already granted shall not be unsettled, Justice Raja Vijayaraghavan V. added that the right of reservation in employment conferred to the disabled under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 and the Rights of Persons With Disabilities Act 2016 cannot be taken away by placing stumbling blocks.
"The Hon'ble Supreme Court has time and again observed that the beneficial provisions of the 1995 Act/ 2016 Act would remain on paper and the rights of the PwD (persons with disabilities) would be defeated by the sluggish and obstinate stand taken by the Appropriate Government and the establishments. Instead of being proactive to protect the interests of the disabled, a conscious effort is being taken to thwart their efforts to secure employment by taking an obstructive or lethargic stand."
The Court was hearing a batch of three petitions highlighting the continuous disregard shown by the State and the Aided School Managers in implementing the provisions of the Act.
The Social Justice Department of Kerala issued an order in 2018 extending the provisions of the Act to all aided educational institutions with effect from 7.2.1996. Directions were also issued to all authorities of such institutions to provide a 3% reservation of the total number of vacancies in the cadre strength in appointments in aided schools and aided colleges, including professional colleges to the posts identified as suitable for persons with disabilities and issued vide earlier Government Orders with effect from 7.2.1996 and to fill the backlog from 7.2.1996 to 18.4.2017.
The Government also ordered to provide a 4% reservation of the total number of vacancies in the cadre strength in appointments in aided institutions to the 839 posts which were identified / to be identified suitable for persons with disabilities with effect from 19.04.2017.
This order was upheld by a Division Bench in Renjith v. State of Kerala [(2020 (5) KLT 324].
The State issued another order in 2021 directing the Managers of aided institutions to ensure 3% or 4% reservation in appointments and to fill up backlog vacancies as per the Act. This was followed by yet another order in December 2021 as per which a cut-off date is fixed as 8.11.2021 and to provide for reservation in vacancies which arise after the said date.
The petitioners contend that the fixation of the cut-off date is against the provisions of the statute, and the first Government Order since the arbitrary fixation of the cut-off date would lead to entitled disabled persons being deprived of the rights guaranteed to them. It was further stated that if in terms of the last order, all the vacancies are filled up without providing for reservations to the disabled, the PwDs in the State will lose their employment opportunities, and many of them would become overaged.
The petitioners also contended that the action being taken by the educational authorities under the Government to grant approval of appointments without providing for reservation in the appointment of teachers in the schools is violative of the fundamental rights guaranteed to them under Articles 14 and 15 r/w. Article 41 of the Constitution.
On these assertions, the petitioners sought to quash the Government orders fixing a cut-off date while simultaneously seeking further direction to the State to issue orders to the aided school Managers to include the provisions of reservation for the disabled in the notifications inviting applications for filling up the posts and to provide for 4% reservation with effect from 19.4.2017 and to fill up the same in arising vacancies.
The petitioners have also sought for issuance of directions to the Aided School Managers in the State to implement the 3% reservation to the disabled persons with effect from 7.2.1996 and to take immediate steps to calculate the backlog of vacancies with effect from 7.2.1996 to 18.4.2017 and to fill up the same in the arising vacancies.
After hearing the parties and analysing a set of precedents on the issue, the Court found force in the arguments raised by the petitioners.
"In order to enable persons with disabilities to lead a life of equal dignity and worth, it is not enough to mandate that discrimination against them is impermissible. That is necessary, but not sufficient. We must equally ensure, as a society, that we provide them the additional support and facilities that are necessary for them to offset the impact of their disability."
The Court recalled that employment is a key factor in the empowerment and inclusion of people with disabilities. Justice Vijayaraghavan quoted an Apex Court decision and added that disabled people were kept out of jobs because of social and practical barriers that prevent them from joining the workforce.
Therefore, upon considering the law on point, the Court was of the opinion that the benefit of reservation as envisaged under the Act has to be extended to Persons with Disabilities and no stumbling blocks or limiting clauses can be placed by the respondents so as to infringe their statutory and constitutional rights for reservation to posts in aided schools.
As such, the Court allowed the petitions with the following directions:
a) It is declared that the Managers of aided schools are bound by the Government Order dated 18.11.2018, and they shall provide a 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from 07.02.1996 and to fill the backlog from 07.02.1996 to 18.04.2017, and 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided schools with effect from 19.04.2017 in tune with Government Order dated 7/05/2019 and the orders referred to therein.
b) Government Orders issued in 2021 will stand quashed, to the extent that it fixes a cut-off date and directs that only vacancies in aided schools which arise after 08.11.2021 shall be filled up in terms of the Act.
c) In terms of the Government Order dated 25.06.2022 but without the cutoff date fixed as 08.11.2021, backlog vacancies from 07.04.1996 shall be calculated and the roster shall be prepared within a period of two months from today tabulating the first in 33 vacancies from 07.02.1996 and the first in 25 vacancies from 19.04.2017 onwards for absorbing differently abled in the process of recruitment in Aided Schools in respect of vacancies that have arisen after the date of issuance of Government Order dated 18.11.2018 as upheld by this Court in Renjith (supra) and in tune with Government Order dated 7/05/2019 and the previous orders referred to therein.
d) Appointments already made by the management after the issuance of the Government Order in 2018 in respect of which approval has not been granted by the educational authorities to date shall be subject to the directions above. Only after filling the backlogs as directed above, shall the approval be granted in respect of those appointments. Approval of appointments already granted shall not be unsettled.
Advocates P.K Nandini and K.P Jayasree appeared for the petitioners in the matter. Advocate George Abraham appeared for the Managers of certain institutions while Advocate K. Mohanakannan represented the Private School Management Association. Advocates Siji Antony, T.R Jagadeesh and Shameena Salahudeen appeared for the additional respondents. Special Government Pleader T.B. Hood also appeared in the case.
Case Title: K.J. Varghese v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 432