Kerala High Court
C.V.Balakrishnan vs State Of Kerala on 6 July, 2021
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
WP(C) NO. 20070 OF 2016
PETITIONER/S:
C.V.BALAKRISHNAN
AGED 58 YEARS
VYSHNAVAM, AROOR P.O.,CHERTHALA, PIN 688538.
BY ADV SRI.E.NARAYANAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,SOCIAL WELFARE DEPARTMENT,
SECRETARIAT,TRIVANDRUM-695001.
2 THE COMMISSIONER FOR PERSONS WITH DISABILITIES
OFFICE OF THE COMMISSIONER FOR PERSONS WITH DISABILITIES,
ROOM NO.113, SECRETARIAT,TRIVANDRUM-695001.
3 THE KERALA PRIVATE COLLEGE MANAGEMENTS ASSOCIATION
REG.NO.TR.12 OF 1960, REPRESENTED BY ITS GENERAL SECRETARY
REV.DR.VINCENT NEDUNGATTU, PRINCIPAL, NIRMALA COLLEGE,
MUVATTUPUZHA-686661.
4 THE KERALA CBSE SCHOOL MANAGEMENT ASSOCIATION
REPRESENTED BY ITS GENERAL SECRETARY, VI/290, MINERVA
TOWERS, P.O. BOX 38, PERUMBAVUR, PIN-683542, ERNAKULAM DT.
5 ADDL. R5. KERALA PRIVATE AIDED SCHOOL MANAGEMENT
ASSOCIATION,
REG.NO.S.371/89, REPRESENTED BY ITS GENERAL SECRETARY, R.M.
PARAMESWARAN, SWARARAGA SUDHA, SRI CHITHRA NAGAR, PANGOD,
THIRUMALA P.O., THIRUVANANTHAPURAM-06.
IS IMPLEADED AS ADDITIONAL RESPONDENT NO.5 VIDE ORDER DATED
04/08/2016 IN IA.11394/2016.
BY ADVS.
SRI.BABY ISSAC ILLICKAL
SRI.ISAAC KURUVILLA ILLIKAL
OTHER PRESENT:
SRI SURIN GEORGE IPE, SR GP FOR R1 AND R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.20070 of 2016
:: 2 ::
C.R.
JUDGMENT
Dated this the 6th day of July 2021 S.MANIKUMAR, C.J.
This public interest litigation is filed with a prayer to declare that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is applicable to all the educational institutions aided by the Government in the State of Kerala.
2. Learned counsel for the petitioner submitted that the petitioner's son Vishnuprasad C.V, aged 25 years, is hundred percent blind by birth. He is a holder of M.A(Malayalam) and has UGC with NET & JRM. The Government have passed Exhibit P1 order dated 17.10.2012 granting 3% reservation for physically handicapped persons for getting employment as per their respective qualifications. As per Exhibit P2 decision in W.P.(C)No.3403/2015, reported in 2015 (4) KIT 523, this court held that the benefit of Ext.P1 Government Order is applicable to the institutions coming under the Cochin Devaswom Board. While passing the said Judgment, this court was pleased to observe that the Cochin Devaswom Board cannot at all be said that it is not an "establishment" and is a body corporate controlled by the Government W.P.(C)No.20070 of 2016 :: 3 ::
and hence it is an establishment coming under the purview of The Persons with disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995. According to the petitioner, the above said observation of this court made in the above referred decision is equally applicable to all the aided colleges and schools in the State.
Necessary orders have to be passed by the Government for the proper implementation of the above referred Government Order in the said institutions also. The petitioner has preferred Ext.P3 representation requesting for immediate action. Hence this Writ Petition is filed seeking the following reliefs:
"1. To declare that the Exhibit P2 Judgment of this Hon'ble Court is applicable to the various Government aided private educational institutions in Kerala.
1A. To declare that The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is applicable to all the educational institutions aided by the Government in the State of Kerala,
2. Issue a writ of Mandamus or other appropriate writ, order or direction directing the 1st respondent to dispose of Ext.P3 representation in the light of Ext.P2 Judgment within a time limit prescribed by this Hon'ble Court by affording an opportunity of hearing to the petitioner;
3. To direct the respondent to give cost of this litigation to the petitioner."
3. Mr. E. Narayanan, learned counsel for the petitioner contended that the Disability Act 1995 provides for a 3% reservation in W.P.(C)No.20070 of 2016 :: 4 ::
"identified posts" for people with disabilities in all categories of jobs.
The posts were meant to have been identified soon after the Act coming into force and updated every 3 years. The initial identification of posts at the Central Government level was not completed until 2001 and no formal expansion of identified posts has been completed subsequently. In a Public Interest Litigation (PIL) filed in Delhi High Court by a visually impaired lawyer, S.K.Rngta in 2006, against the Government's negligence in implementing the Disability Act, 1995, Delhi High Court held that 3% of the "Total strength" of employees in any Government establishment should be disabled persons. According to learned counsel for the petitioner, the said judgment provides clear clarification to Section 33 of the Disability Act that reservation is against total jobs and not just identified jobs.
4. In support of the prayers sought for in this writ petition, petitioner has, inter alia, raised the following grounds:
"1. There is hardly any information or research on employment of disabled people available in the country. None of the strategy papers/working committees reports on employment address disability employment. Employment is also correlated with many other factors -- education, awareness, access, etc.
2. Enhancing employment opportunities for people with disabilities is one of the main concerns of the disability W.P.(C)No.20070 of 2016 :: 5 ::
sector in India.
3. When one looks at the micro level, it may seem like there has been progress. There is increased awareness amongst Corporates and people with disabilities. There has been pressure on the Government to implement the Disability Act, 1995. Even though there was no law mandating the private sector to employ disabled people, some companies have taken proactive measures to employ disabled people.
4. There is a wide gap between the employment rate of people with and without disabilities in the country.
Therefore, the target for brining down the unemployment rate cannot be achieved without addressing the employment issues of people with disabilities, who constitute about 5-6% of the population. It would require proactive initiative on the part of all concerned to ensure that disability is included in the employment programmes of the Government and the private sector.
5. A report was prepared by the World Bank, 'People with Disabilities in India: From Commitments to Outcomes' on the request of Government of India in the year 2006 - 2007. Their observations are quite insightful. Some of the major points related to Government employment given in the Report are:
• Only 27% of people with disabilities registered with special exchanges, or the special cells of regular exchanges. Among the total 661,000 people with disabilities on the live register of all exchanges, 109,929 were registered as part of special exchanges for physically handicapped and W.P.(C)No.20070 of 2016 :: 6 ::
66,612 were registered as part of special cells for physically handicapped of regular exchanges. • Total funding for special exchanges and cells between 1998 and 2003 was just over Rs.5 Crores. Employment exchanges -- both special and regular
-- play a negligible role in promoting employment among disabled people. The cost effectiveness of many special exchanges is open to question. Even at an average level, the approximate per unit cost of a placement by the special exchanges in 1998 -- 2003 appears to be over Rs.7,500/-.
• It is clear that the placement ratio is very low for special exchanges and other exchanges, 0.9 % and 0.7% respectively in 2003. The placement ratio has roughly halved over the past decade in both cases. From close to 2% and 1.2% in 1994 for special and other exchanges respectively.
• Only 10.2 % of all posts in Ministries/Departments and Public Sector had been identified as suitable for disabled people.
6. The Disability Act 1995 provides for a 3% reservation in "identified posts" for people with disabilities in all categories of jobs. The posts were meant to have been identified soon after the Act coming into force and updated every 3 years. The initial identification of posts at the Central Government level was not completed until 2001 and no formal expansion of identified posts has been completed subsequently. As per data available in 2003, only 10.2% of all posts in Ministries/Departments and public establishments W.P.(C)No.20070 of 2016 :: 7 ::
had been identified as suitable for people with disabilities. Among that 10% of posts, 3.5% for Ministries and Departments and 4.5% for public establishments had been filled by employees with disability. While the 3% quota has been met in the strict terms of the Act, the share of disabled people in all posts remains negligible, at 0.44%. (Source:
World Bank Report). The Government has been viewing 3% reservation in a very restricted manner. A Public Interest Litigation (PIL) was filed in Delhi High Court by a visually impaired lawyer, S.K.Rngta in 2006, against the Government's poor record in implementing The Disability Act, 1995. Delhi High Court ruled that 3% of the "Total strength" of employees in any Government establishment should be disabled persons. (Source: December 22, 2008 indianexpress.com) This is a landmark judgment, as it provides clear clarification to Section 33 of The Disability Act that reservation is against total jobs and not just identified jobs.
7. The general feeling in the disability sector has been that the system of 'identification of jobs' is very restrictive. Due to this, many disabled people have been denied job opportunities in spite of having necessary qualification and skills. An example has been given in the World Bank Report to highlight the flaws of the Government's job list, "In Group A, the job of an agricultural scientist specialized in econometric analysis is identified as being suitable for an individual who is blind or has an orthopaedic disability, but not for someone with a hearing disability". Advocacy Campaign to open up High Ranking Civil Services for Disabled People. The issue of discrimination in Civil Services was taken up by the National W.P.(C)No.20070 of 2016 :: 8 ::
Centre for Promotion of Employment for Disabled People (NCPEDP) in a major way in 2003, when two qualified disabled persons were relegated to lower ranking jobs because of their disability and one was not offered any job, as no civil services job was identified for people with visual disabilities. NCPEDP's research revealed, out of the 26 Civil Services, only five Services were identified as suitable to people with loco motor disability, two for people with hearing disability and none at all for people with visual disability. There was discrepancy between the Union Public Service Commission (UPSC), the body that conducts the Civil Services exam, and the Department of Personnel & Training (DoPT) that allots services. UPSC had been providing Braille question papers, scribes and extra time for visually impaired candidates for over a decade. Then when they qualify, DoPT tells them, "No service has been earmarked for visually impaired candidates". Now, the Indian Administrative Service and a few more services have been identified for disabled people including those with visual disability. There have many similar cases. It took court's intervention to get Bank Officer's position opened up for people with visual and hearing impairment. There are still many cases of discrimination which are pending in the Indian Courts. There are also many instances of employees with disability not getting promoted because the next level of job has not been 'identified'. The World Bank Report clearly recommends "dropping of the whole idea and doing away with such a practice". It says, "The list of identified jobs is based on the assumption that the characteristics of an impairment are the exclusive W.P.(C)No.20070 of 2016 :: 9 ::
determinants of an individual's ability to hold a position at a particular skill level and thus ignores the potential influences of individual characteristics (motivation, age at disability onset), access to employment services, and the characteristics of the workplace and labour market". Another issue with the Job List is that the jobs have been identified for only three disability categories, because the 3% reservation applies only to three disability types -- loco motor, visual and hearing, with a 1 percent reservation for reach. Thus even the disability categories of the Act are not all included in the reservation policy, let alone a range of other disabilities."
5. Mr. E. Narayanan, learned counsel for the petitioner submitted that the issue raised in this writ petition as regards the duty of aided educational institutions to comply with the provisions of Act 1995 was considered by a learned Single Judge of this Court in Renjith v. State of Kerala and another [2020 (5) KLT 324] and affirmed by a Hon'ble Division Bench of this Court in the judgment in Writ Appeal Nos. 1237, 1238, 1239, 1242 of 2020 and Writ Appeal No. 131 of 2021.
6. Per contra Mr. Baby Issac Illickal, learned counsel for the 3 rd respondent submitted that minority educational institutions are not obligated to provide reservation to differently abled persons. He made an attempt to place reliance on a decision of the Hon'ble Supreme Court regarding category wise reservation in educational institutions.
W.P.(C)No.20070 of 2016:: 10 ::
However, not produced the same for consideration.
7. Learned counsel for the petitioner had further submitted that the principles of law laid down by a Hon'ble Division Bench of this Court in Writ Appeal Nos. 1237, 1238, 1239, 1242 of 2020 and 131 of 2021 dated 04.02.2021, is squarely applicable to the case on hand and therefore, the prayers sought for have to be granted.
8. As stated supra, though Mr. Baby Issac Illickal, learned counsel for the 3rd respondent made an attempt to distinguish the decisions of this Court stating that minority institutions are not bound to provide reservation, on this day, he fairly admitted that the decision of the Hon'ble Division Bench in Writ Appeal Nos. 1237, 1238, 1239, 1242 of 2020 and 131 of 2021 were challenged in SLP No. 6665 of 2021 preferred by the Consortium of Catholic School Management in Kerala and in SLP Nos. 8030, 8031 and 8032 of 2021 preferred by the NSS College Central Committee, that the Hon'ble Supreme Court was not inclined to entertain the SLPs and therefore the SLPs were dismissed as withdrawn.
9. Mr. Baby Issac Illickal, learned counsel for the 3 rd respondent further submitted that while permitting withdrawal of the SLPs, as regards backlog vacancies, Hon'ble Supreme Court permitted the managements to make representations to the Government.
W.P.(C)No.20070 of 2016:: 11 ::
10. Submission of the learned counsel for the respondents is placed on record.
11. Ext.P1 Government Order, dated 17.10.2012, granting 3% reservation for physically handicapped persons for getting employment as per their respective qualifications, reads as under:
"GOVERNMENT OF KERALA Abstract Social Welfare Department-Declaration of more posts in Class 1, II and III as suitable for appointment of physically disabled person-Eligibility criteria modified-Orders issued.
----------------------------------------------------------------------------------------------
SOCIAL WELFARE(D)DEPARTMENT G.O(P)No. 61/2012/SWD. Dated, Thiruvananthapuram :17.10.2012
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Read:- 1. G.O(P)No.119/2005/SWD dated 6.8.2005.
2. G.O(P)No.43/2009/SWD dated 13.10.2009.
3. G.O(Ms)No.:37/2011/SWD-3WD dated 2.8.2011.
4. Minutes of the Expert Committee Meeting held on 7.9.2012.
ORDER As per Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Nights and Full Participation) Act, 1995 every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent for persons or Class of persons with disability of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment,
(iii) locomotor disability or cerebral palsy in the posts identified for each disability.
As per G.O read as 1st paper above the Government have already W.P.(C)No.20070 of 2016 :: 12 ::
identified 20 posts in Class 1 and Class II categories as suitable for appointment of Physically Handicapped Persons in various Government Departments. As per G.O read as 2 nd paper above the Government have already identified 48 posts in Class I and Class II and 4 posts in Class III categories as suitable for appointment of physically disabled persons in Government Department.
The Expert Committee submitted their recommendation by identifying more posts under Class I and Class II as suitable for physically disabled persons in different Government Departments. The Expert Committee has been recommended in Class I and II categories listed in G.O(P)No.119/05/SWD dated 6.8.2005 and G.O(P)No.43/2009/SWD dated 13.10.2009 more posts identified in physically disabled and categories viz, hearing impairment, Blindness or low vision, and Locomotor disability/Cerebral Palsy. Accordingly revised list of posts has been prepared on the basis of the recommendation/suggestion of the Expert Committee, Expert Doctors and Heads of Departments. It is since learnt that G.O dated 13.10.2009 has been issued after considering such report of expert committee and based on the recommendation for identifying categories of posts suitable for appointment physically disabled candidates. The question raised by Special Government Pleader to Advocate General, Hon. High Court, Ernakulam in OP(KAT)No.2045/12 filed by Smt.Jaya.S.Anand that whether Government is entitled to specify the categories of posts into different categories applicable to Persons with orthopaedic lower extremities and orthopaedic upper extremities, where the Persons with Disabilities Central Act, 1995 only stipulated that person with locomotor disability is entitled for reservation based on the observation of Hon'ble High Court, Ernakulam during the hearing of above OP.
In view of the above circumstances, Government have examined the matter in detail and are pleased to order that the categories of posts W.P.(C)No.20070 of 2016 :: 13 ::
identified by the Expert Committee constituted by Government as modified in accordance with the provisions of Section 2(o) contained in Chapter I of Persons with Disabilities Act, 1995 and provisions of section 33 in Chapter Vl. Accordingly a comprehensive list of different categories of posts which are identified for the different divisions among the disabled for appointment in public service including the categories listed in the Government order are included in the Annexure.A. Also the categories of posts of Higher Secondary Teacher (Jr) in Higher Secondary Education Department and Vocational Teacher, Vocational Instructor, Non-vocational Teacher (Jr) and (Sr) in Vocational Higher Secondary Education Department (Class III posts) are also identified for Physically Handicapped Persons as shown in the Annexure B against Class IlI posts.
The Kerala Public Service Commission will advise physically disabled candidates from the Rank Lists for the said categories of posts prepared by the Commission against the 3% quota reserved for the Physically Disabled Candidates.
By order of the Governor, K.M.ABRAHAM Principal Secretary to Govt."
12. On analyzing the facts and figures, and the developments that have taken place during the pendency of this writ petition, consequent to the judgment of this Court in Ranjith (supra), its affirmation by the Division Bench, and the dismissal of the Special Leave Petitions by the Hon'ble Apex Court, we are of the considered opinion that the issue raised is squarely covered. For the sake of W.P.(C)No.20070 of 2016 :: 14 ::
convenience, brevity and appreciation of the issue properly, relevant portions of the judgment of the learned Single Judge are hereunder:-
"14. The issue to be decided in these cases is whether the provisions relating to reservation in employment for physically challenged persons would apply to aided Schools and Colleges and if it applies whether it would apply to minority institutions. On the basis of a decision on that issue, it would be required to examine whether the backlog vacancies envisaged under the 1995 Act should be filled up after 2016 Act came into force.
17. Petitioners cannot dispute that the aided Schools are governed by the Kerala Education Act and Rules. Section 2(1) of the Kerala Education Act defines `aided Schools' as "aided School means a private school which is recognized by and is receiving aid from the Government'; but shall not include educational institutions entitled to receive grants under Article 377 of the Constitution of India except in so far as they are receiving aid in excess of the grants to which they are so entitled. Though the appointing authority of the staff of the School is not Government, Section 11 of the Act provides that teachers of aided school shall be appointed by the Managers of the Schools, subject to the rules and conditions laid down by the Government, from among persons who possess the qualifications prescribed under Section
10. Therefore, the authority of the managers of aided Schools to appoint teachers is not absolute; it can only be in accordance with the rules and conditions laid down by the Government, that too, only from among candidates possessing qualification as prescribed by the Government. It is also pertinent to note that the W.P.(C)No.20070 of 2016 :: 15 ::
Managers are bound to abide by the provisions in the Act, rules, orders and instructions issued by the educational authorities, as provided in the rules and as held in the judgments of this Court in NSS' case (supra), Rajesh's case (supra), Manager, Eravannoor Up. School's case (supra), Sobha George Adolf (supra) etc.
18. Aided Colleges in the State come under various Universities. Even though there is no definition of aided college, Section 2(28A) of the Calicut University Act as well as that of Kerala University Act and Section 2 (30A) of M.G University Act and Section 2(xxixA) of the Kannur University Act define an unaided college as a private college which is not entitled to any financial assistance from the Government or University. In colleges also appointment can be made only from among candidates having the qualifications prescribed in UGC Regulations as well as University statutes/ordinance; posts should be sanctioned by the Government and require approval from the University. Salary is paid by the Government. Aided Colleges have entered into direct payment agreement with the Government in the year 1972. Selection committee should consist of nominees of University and Government.
19. The contention of the petitioner Managements is that the right of appointment conferred on the Management of aided Colleges cannot be interfered with or diluted in view of the direct payment agreement entered into between the petitioner managements and the State Government. According to them, their fundamental right under Article 19(1)(g) to make appointment and the right of minorities under Article 30(1) of the Constitution cannot be interfered with by directing appointments under the 1995 Act or 2016 Act. In the judgment in Ahmedabad W.P.(C)No.20070 of 2016 :: 16 ::
St. Xavier's College Society v. State of Gujarat : (1974) 1 SCC 717, relied on by the learned Senior Counsel it was held that the selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities cannot be denied such right of selection and appointment infringing Article 30(1). So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. The fundamental right of a minority to administer educational institutions of its choice comprises within it the elementary right to conduct teaching, training and instruction in courses of studies in the institutions so established by teachers appointed by the minority. It was held that in the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. At the same time, it was also held that the right to administer educational institutions can plainly not include the right to maladminister. The State can prescribe regulations to ensure the excellence of the institution. In the Full Bench judgment of this Court in Benedict Mar Gregorius v. State of Kerala & others : 1976 KLT 458 (F.B.), relied on by Sri. Kurian George Kannanthanam, this Court while considering the validity of the provisions in M.G University Act, held that even while making an appointment by promotion, the minority institution is entitled to choose the one best fitted to serve the interests of the minorities, subject to the person satisfying the standards prescribed by the University to keep up the excellence of education, discipline in the institution and the like. In Joseph Kachappilly v. State of Kerala : 1997(2) KLT 740, W.P.(C)No.20070 of 2016 :: 17 ::
it was held that constitution of a Screening Committee by the Government for the purpose of placement of Lecturers would be clearly against the fundamental rights of management guaranteed under Art. 30(1) of the Constitution of India.
24. In the judgment in State of Kerala v. Arun George: (2015) 11 SCC 334, relied on by the managements, the Apex court was considering the liability of the Government to pay the salary due to the college teachers. Government denied them salary on the ground that they were appointed when additional courses were sanctioned on condition that there would not be any financial commitment. The Apex Court accepted the contention of Managements that when they have discharged their obligation under the provisions of Direct Payment Agreement, in terms of admission of students, collection of fees, reservation of seats as prescribed by the Government and remitted the same in the Government treasury, the State is also obliged to perform its mutual obligation under the Articles of Direct Payment Agreement. But that judgment does not have any relevance in the matter of a Government order which was issued realizing the fact that reservation under both the Central Acts were implemented in aided institutions while implementing the same in Government institutions in the light of the directions of the Apex Court in various judgments. It would be beyond the authority of the State Government to exempt the educational agencies which entered into direct payment agreement, from implementing the provisions in any central enactments.
25. In the judgment in Brahma Samaj Educational Society v. State of West Bengal and others: (2004)6 SCC 224 relied on by the managements, the Apex court was considering the challenge W.P.(C)No.20070 of 2016 :: 18 ::
raised by the college against the provision insisting it to make the entire selection and appointment of teachers through the College service Commission under College Service Commission Act for making appointment of teachers through the College Service Commission. In the light of the law laid down in T.M.A Pai's case, it was held that merely because the petitioners are receiving aid, their autonomy of administration cannot be totally restricted and institutions cannot be treated as Government-owned one and that the State can impose only such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. The impugned order only directs the managements themselves to select and appoint a small percentage of vacancies in accordance with the central Act .
28. A Constitution Bench of the Apex Court in Ashoka Kumar Thakur v. Union of India: (2006)8 SCC 1 upheld the constitutional validity of Article 15 (5) of the Constitution of India.
In Pramati Educational & Cultural Trust v. Union of India (2014) 8 SCC 1, the Apex court considered the constitutional validity of Article 21A which provides that the State shall provide, free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. The Right of Children for (Free and Compulsory) Education Act, 2009 enacted under Article 21A, as per Section 12(1) (c) provides that private unaided schools shall admit in Class I, at least twenty-five per cent of the strength of the class from amongst weaker sections of the society and from disadvantaged groups and provide free and compulsory education. These contentions were raised to the effect that applying the functional test to private educational institutions are also `State' within the W.P.(C)No.20070 of 2016 :: 19 ::
meaning of Article 12 of the Constitution. Though it was found that the word "State" in Article 21A can only mean the "State" which can make the law, it was held that a new power was vested in the State to enable the State to discharge this constitutional obligation by making a law. It was held that the power under Article 21A in the State is independent of the power of the State under clause (6) of Article 19 of the Constitution and by exercising this additional power, the State can by law impose admissions on private unaided schools for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years belonging to poorer, weaker and backward sections of the society, to a small percentage of the seats in private educational institutions, in order to achieve the constitutional goals of equality of opportunity and social justice and that such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution. However, it was found that such a provision cannot be imposed on minority institutions.
29. The decision in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh (2006) 2 SCC 545, where it was held that regulation or restriction under clause (6) of Article 19 of the Constitution can only be by a legislation and not by a circular or a policy decision in terms of Article 162 of the Constitution would not apply in the present case as the State Government has only directed implementation of the provisions in the central enactment.
32. In the judgment in Kavitha Balakrishnan v. Prasanna Kumari E.S: 2015(5) KHC 655, the Division Bench of this Court, while considering the eligibility of a visually impaired candidate W.P.(C)No.20070 of 2016 :: 20 ::
for age relaxation for appointment as Assistant Professor in Kannur University, held that the University which receives aid from State Government is an establishment under Section 2(k) of the Act and that appropriate Government in that context is State Government. The objection raised in that case on the ground that the University adopted the particular Government order only on 29.01.2009 and therefore it cannot apply to the recruitment prior to that was repelled. It was held that the Act being a social welfare legislation it has to be interpreted liberally so as to achieve the purpose in full. It was ordered that every establishment which is bound by the Act should imbibe the true spirit of the Act and implement the same.
34. In the above context, I am of the view that aided educational institution would come within the meaning of establishment as defined in Section 2(k) of 1995 Act and that of Government establishment under section 2(i) of the 2016 Act. It cannot be said that Government introduced any new provision or amended the Central Act by an executive order. The extension is of what was already intended by the Act and included in the Act.
It is also pertinent to note that the almost all the conditions of service of government colleges mutatis mutandis apply to the teachers of aided colleges and schools.
35. Now the question is just because the provisions contained in Sections 32 and 33 of 1995 Act and Sections 33 and 34 of 2016 Act provide that "appropriate authority" shall appoint and appropriate authority is defined as Central/State Government as the case may be, the educational agencies are not required to fill up the vacancies. Sri. Kurian George Kannanthanam, the learned Senior Counsel for the management consortium W.P.(C)No.20070 of 2016 :: 21 ::
vehemently argued that the Act only obligates the appropriate authority to identify, reserve as well as to make appointment of persons with disability. As rightly pointed out by Sri. V.Manu, the Learned Senior Government Pleader, Section 2 of the 1995 Act as well as that of 2016 Act start with "In this Act, unless the context otherwise requires," and therefore the definition has to be interpreted considering the legislative intent as both the Acts are beneficial legislations, enacted in order to effectuate the proclamations made in the Asia Pacific meet and effectuate UN convention on the Rights of Persons with Disabilities in tune with Article 51(c) of the Constitution of India.
39. Therefore, the expressions "appropriate Government"
occurring in Sections 32 and 33/33 and 34 of both the Acts as well as the definition of establishment/government establishment therein have to be construed liberally and in accordance with the legislative intent behind the Act. There cannot be any dispute over the fact that the 1995 Act as well as 2016 Act are social welfare legislation and that such legislation are to be interpreted liberally. The legislative intent is to integrate the differently abled with the main stream. The Apex Court in the judgment in (1985) 4 SCC 71, while considering the question whether Sundays and other paid holidays should be treated as days on which the employee "actually worked under the employer" for the purposes of Section 25-F read with Section 25-B of the Industrial Disputes Act, observed as follows:
"4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these W.P.(C)No.20070 of 2016 :: 22 ::
legislation the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, we had occasion to say, "Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."
In the judgment in Ravi Prakash Gupta's case (supra) the Apex court observed as follows:
"We have examined the matter with great care having regard to the nature of the issues involved in relation to the intention of the legislature to provide for integration of persons with disabilities into the social mainstream and to lay down a strategy for comprehensive development and programmes and services and equalization of opportunities for persons with disabilities and for their education, training, employment and rehabilitation amongst other responsibilities. We have considered the matter from the said angle to ensure that the object of the Disabilities Act, 1995, which is to give effect to the proclamation on the full participation and equality of the people with disabilities in the Asian and Pacific regions, is fulfilled."
In the judgment in Union of India v. National Federation W.P.(C)No.20070 of 2016 :: 23 ::
of the Blind: (2013) 10 SCC 772 observing that the 1995 Act is a social legislation enacted for the benefit of persons with disabilities it was observed that provisions must be interpreted in order to fulfill its objective. Referring to the provisions contained in Sections 38 and 39 of the Draft Rights of Persons with Disabilities Bill, 2012, which turned out as Sections 33 and 34 of the 2016 Act, in the place of Sections 32 and 33 of the 1995 Act, the Apex Court held that the intention of the legislature is clearly to reserve in every establishment under the appropriate Government, not less than 3% of the vacancies for the persons or class of persons with disability. In para.55 it was held as follows:
"9. xxxxx In the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief-oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity."
Therefore, on a liberal and contextual interpretation of the provisions contained in Sections 32 and 33 of 1995 Act and 33 and 34 of of the Act, as well as the definition of establishment, it cannot be said that appointment against identified posts against the 3%/4% can be made only by Government or that it can be made only in establishments having the characteristics of State under Article 12. By the mere fact that the Government of Kerala has identified posts in Government Schools or Government Departments only for appointment under the Act, it cannot be said that the intention of the central Act was confined to only W.P.(C)No.20070 of 2016 :: 24 ::
Government Schools or that aided educational institutions are excluded from the applicability of the Act. It is also relevant to note that under Article 41 of the Constitution State shall make effective provisions for securing right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement. The Acts 1995 and 2016 are in tune with that also apart from effectuating the proclamations. Therefore, in the venture to integrate the disabled with the mainstream, the aided educational institutions are also to contribute.
42. The next question is whether appointments should be done on the basis of the provisions in a repealed 1995 Act, when 2016 Act does not have a saving clause and whether there can be any direction to fill up backlog vacancies. Section 102 of the 2016 Act, which repealed the 1995 Act read as follows:
"102. Repeal and savings.-- (1) The Persons with Disabilities (Equal Opportunity Protection of Rights and Full Participation) Act, 1995 (1 of 1996) is hereby repealed.
Notwithstanding the repeal of the said Act, anything done or any action taken under the said Act, shall be deemed to have been done or taken under the corresponding provisions of this Act."
In this context it is also necessary to have a look at Section 6 of the General Clauses Act,1897 which reads as follows:
"6. Effect of repeal.--Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or any thing duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability W.P.(C)No.20070 of 2016 :: 25 ::
acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
43. The effect of repeal was considered by a 3 Judge Bench of the Apex Court in the judgment in State of Punjab v. Mohar Singh: AIR 1955 SC 84, while considering the validity of the prosecution under an Ordinance, which ceased to have any effect on the enactment of the Punjab Refugees (Registration of Land Claims) Act. The new Act had come into force before prosecution commenced. There the respondent submitted a claim under the Ordinance on 17.03.1948 and the Act repealing the Ordinance came into force on 01.04.1948. Prosecution under Section 7 of the Act as against the claim found to be false, was initiated in 1950. The Apex Court considered the question whether it was possible to prosecute him under S.7 of the ordinance after it was repealed. In para.8 of the judgment it was held as follows:
"8. xxxxxWhenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps W.P.(C)No.20070 of 2016 :: 26 ::
alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material."
It was held that unless a contrary intention can be gathered from the Act, provisions of Section 6 of the General Clauses Act would apply to a case of repeal even if there is a simultaneous enactment. In the present case also, there is no contrary intention. The 2016 Act provides for more benefits.
46. In the 2016 Act there is no legislative intent contrary to that behind the 1995 Act. On the other hand, it is more elaborate and more beneficial to those for whose benefit it is enacted. The observations made by the Apex Court in Justice Sunanda Bhandare's case is that there has been sea change and it cannot be taken as ruse to deny the benefit of a judgment. Sea Change is only with respect to enhancement in the percentage of reservation and type of disabilities. Section 6 of General Clauses Act would therefore apply. 3% reservation in appointments was a right accrued to the persons with disability, under the 1995 Act. The Apex Court had been issuing consistent and time bound directions to implement those provisions. Therefore, it cannot be said that those rights ceased to exist by way of Section 102 of the 2016 Act. It is relevant to note that even before the 1995 Act came into force, reservation was provided to the differently abled persons. The concept of vertical reservation and horizontal W.P.(C)No.20070 of 2016 :: 27 ::
reservation was evolved in Indra Sawhney's case as early as in 1992, well before the enactment in 1995. The difference in percentage of reservation or difference in the definition of establishment or the procedure provided for determining benchmark disability are not intended to destroy the right accrued or liabilities incurred under the old Act and there is no incompatibility between the two Acts. Therefore, the right accrued to persons with disabilities under the old Act for appointment under the 1995 Act as well as the liability of the aided Colleges/schools would continue.
47. It is relevant to examine the directions issued by the Apex Court while considering the rights available to the differently abled from 2010 onwards. In Govt. of India v. Ravi Prakash Gupta: (2010) 7 SCC 626 the Apex court accepted the claim raised by the respondent that appointments to Civil Service are to be made against the vacancies in the 3% quota irrespective of the date when it was identified. Contention of the Central Government that provisions under the Act could be implemented only after identification of posts under Section 32 was repelled observing that the same would be contrary to the legislative intent behind the 1995 Act and that the delay in identification of posts under Section 32 cannot be used as a tool to defer or deny the benefit of appointment under Section 33 of the Act to the differently abled persons, when a duty is cast on every establishment to make appointment under Section 33 of the Act. In the judgment in Union of India v. National Federation of the Blind: (2013) 10 SCC 772 a three Judge Bench of the Apex Court repelled the contention of the Union of India that 3% vacancies shall be computed only in identified posts. It was held that from W.P.(C)No.20070 of 2016 :: 28 ::
Section 33 of the Act itself it is clear that the intention of the legislature is that vacancies are to be computed on the basis of total vacancies in the strength of a cadre which would include group A, B, C and D. Reiterating the judgment in Ravi Prakash Gupta's case, the Apex Court observed that practical barriers prevent the differently abled persons from joining the workforce, as a result of which several of them are in poverty and deplorable conditions as they are denied the right to livelihood.
"51. The Union of India, the State Governments as well as the Union Territories have a categorical obligation under the Constitution of India and under various international treaties relating to human rights in general and treaties for disabled persons in particular, to protect the rights of disabled persons. Even though the Act was enacted way back in 1995, the disabled people have failed to get required benefit until today."
xxxx It was inter-alia directed the following:
"55.2. We hereby direct the "appropriate Government"
to compute the number of vacancies available in all the "establishments" and further identify the posts for disabled persons within a period of three months from today and implement the same without default. xxx xxx xxx The appellant herein shall issue instructions to all the departments/public sector undertakings/government companies declaring that the non-observance of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and the Nodal Officer in department/public sector undertakings/government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default."
Thereafter, another three Judge Bench in Justice Sunanda Bhandare Foundation v. Union of India : (2014)14 SCC 383, took serious note of the lethargy on the part of the Union, States and W.P.(C)No.20070 of 2016 :: 29 ::
all those on whom obligation is cast under the Act, in implementing the beneficial provisions of the Act, and thereby defeating the very purpose of the same. The Governments of Centre, State and Union Territories were directed to implement the provisions of 1995 Act in letter and spirit by the end of 2014. They were alerted stating that their role in such matter has to be proactive. In para.9 it was held that:
"9. xxxxxIn the matters of providing relief to those who are differently abled, the approach and attitude of the executive must be liberal and relief-oriented and not obstructive or lethargic. A little concern for this class who are differently abled can do wonders in their life and help them stand on their own and not remain on mercy of others. A welfare State that India is, must accord its best and special attention to a section of our society which comprises of differently abled citizens. This is true equality and effective conferment of equal opportunity."
Regarding the reservation to the differently abled, the Apex Court in Rajeev Kumar Gupta v. Union of India: (2016) 13 SCC 153, while considering whether reservation is permissible in promotions, explained the difference between reservation under Article 16(4) and reservation under Article 16(1) and held that Article 16(1) does not prevent any preferential/differential treatment to the physically challenged and that what is forbidden is such differential treatment on factors such as caste, religion, etc. and the class of physically disabled is not forbidden. It was also held that persons with disability cannot be equated with backward classes contemplated in Article 16(4) of the Constitution. As 3% reservation was seen denied on the ground that the method of appointment to group A and B posts is by promotion, it was observed that rigorous measures are to be W.P.(C)No.20070 of 2016 :: 30 ::
employed for ensuring the reservation under the 3% and such reservation cannot be denied in promotions.
50. The Apex Court had also observed that the 2016 Act visualises a sea change. Relying on the aforesaid observation, the learned Counsel for the petitioners argued that once the 2016 Act came into force, the State Government has no authority to direct implementation of the repealed Act. It is therefore necessary to have a look at those observations in paras.24 to 26 of the judgment.
"24. We have referred to certain provisions only to highlight that the 2016 Act has been enacted and it has many salient features. As we find, more rights have been conferred on the disabled persons and more categories have been added. That apart, access to justice, free education, role of local authorities, National fund and the State fund for persons with disabilities have been created. The 2016 Act is noticeably a sea change in the perception and requires a march forward look with regard to the persons with disabilities and the role of the States, local authorities, educational institutions and the companies. The statute operates in a broad spectrum and the stress is laid to protect the rights and provide punishment for their violation.
25. Regard being had to the change in core aspects, we think it apposite to direct all the States and the Union Territories to file compliance report keeping in view the provisions of the 2016 Act within twelve weeks hence. The States and the Union Territories must realize that under the 2016 Act their responsibilities have grown and they are required to actualize the purpose of the Act, for there is an accent on many a sphere with regard to the rights of those with disabilities. When the law is so concerned for the disabled persons and makes provision, it is the obligation of the law executing authorities to give effect to the same in quite promptitude. The steps taken in this regard shall be concretely stated in the compliance report within the time stipulated. When we are W.P.(C)No.20070 of 2016 :: 31 ::
directing the States, a duty is cast also on the States and its authorities to see that the statutory provisions that are enshrined and applicable to the cooperative societies, companies, firms, associations and establishments, institutions, are scrupulously followed. The State Governments shall take immediate steps to comply with the requirements of the 2016 Act and file the compliance report so that this Court can appreciate the progress made."
It is therefore evident that the Apex Court had only observed that more rights are conferred on the differently abled under the 2016 Act. There is not even a remote indication that the rights already conferred under 1995 Act and the obligations/liabilities under it which were directed to be discharged by the end of 2014, got divested or ceased to exist after the commencement of 2016 Act. 52. In the result, W.P. (C).Nos.1806/2018 and 2800 of 2019 are dismissed. W.P.
(c).Nos.224/2019 and 4753/2020 are disposed of with a direction to the respective managements to conduct the selection and appointment in tune with the aforesaid Government Order in implementation of the 1995 Act and Right to Persons with Disability 2016. They are bound to fill up the vacancies as directed in the Government Order. As the respondents colleges in the Writ Petitions have not filled up any vacancy under the 3%/4% quota, they shall fill up the vacancies only in accordance with the Government Orders, after issuing notification specifying the same."
13. On a reading of the judgment of the learned Single Judge, it is clear that the legal provisions contained under the 1995 Act were dealt with in depth and has arrived at the conclusion that the Government W.P.(C)No.20070 of 2016 :: 32 ::
aided institutions are liable to follow and implement the provisions of Act 1995. The intricacies, in respect of the introduction of the Right of Persons with Disabilities Act, 2016, were also taken into account in the anvil of the issues raised. Therefore, the judgment in Ranjith (supra) covers the entire aspects and issues raised in this writ petition.
14. Needless to say, petitioner is entitled to succeed and therefore, the writ petition will stand allowed and accordingly, there will be a direction to the aided educational institutions to comply with the mandate contained under the Persons with Disabilities Act, 1995 read along with the provisions of Act 2016.
15. In this context, we also think it is appropriate that the amendment made with respect to the percentage of reservation should also be placed on record. As per the amendment which has come into force with effect from 19.04.2017, percentage of reservation has been increased to 4%. We also record the submission of Mr. Surin George Ipe, learned Senior Government Pleader that admission process for filling up of seats in Government Institutions of higher education and higher educational institutions receiving aid from the Government has not been commenced.
16. Learned counsel appearing for the private educational institutions has submitted that they are given the liberty to submit W.P.(C)No.20070 of 2016 :: 33 ::
representation to the Government, as regards backlog vacancies.
However, we could not locate any such direction in the order in the Special Leave Petition. Anyhow, we are not expressing any opinion on the same. However, the Government is duty bound to ensure that the provisions of the 1995 Act read along with the provisions of Act 2016 are implemented by the aided educational institutions in the private sector.
Writ petition is allowed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE W.P.(C)No.20070 of 2016 :: 34 ::
APPENDIX OF WP(C) 20070/2016 PETITIONER EXHIBITS EXHIBIT-P1: THE TRUE COPY OF G.O.(P) NO.61/2012/SWD, DATED 17.10.2012.
EXHIBIT-P2: TRUE COPY OF JUDGMENT IN W.P.(c) 3403/2015 OF THIS HON'BLE COURT REPORTED IN 2015(4) KLT 5236.
EXHIBIT-P3: TRUE COPY OF REPRESENTATION DATED 12.1.2016 SUBMITTED BY THE PETITIONER.
EXHIBIT-P4: TRUE COPY OF ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P3 BY THE 1ST RESPONDENT.
EXHIBIT-P5: TRUE COPY OF ACKNOWLEDGEMENT CARD EVIDENCING RECEIPT OF EXT.P3 BY THE 2ND RESPONDENT.