Reservations For Differently Abled Should Be Implemented In Aided School Appointments: Kerala High Court

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...

Reservations For Differently Abled Should Be Implemented In Aided School Appointments: Kerala High Court

Hannah M Varghese

The Court added that appointments made after 2018 should only be authorised after granting such reservations.

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