Kerala High Court
The Manager vs V.M.Omana on 5 March, 2012
Author: C.N. Ramachandran Nair
Bench: C.N.Ramachandran Nair, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934
WA.No. 895 of 2012 () IN WPC/16227/2010
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AGAINST THE JUDGMENT IN WPC.16227/2010 DATED 05-03-2012
APPELLANT(S):
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1. THE MANAGER, LMS SPECIAL SCHOOLS
LMS COMPOUND, PALAYAM P.O, THIRUVANANTHAPURAM
REPRESENTED BY AVANAKUZHI MOHAN RAJ.
2. D.JUSTIN RAJ
HEADMASTER, LIGHT TO THE BLIND SCHOOL, VARKALA
THIRUVANANTHAPURAM.
BY ADVS.SRI.R.T.PRADEEP
SRI.P.BIJIMON
RESPONDENT(S):
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1. V.M.OMANA
W/O.D.ANIL KUMAR, (ASSISTANT TEACHER
LIGHT TO THE BLIND SCHOOL, VARKALA) ANU BHAVAN
S.V PURAM P.O, VARKALA, THIRUVANANTHAPURAM.
2. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT
GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM.
3. DIRECTOR OF PUBLIC INSTRUCTION
THIRUVANANTHAPURAM.
4. DEPUTY DIRECTOR OF EDUCATION
THIRUVANANTHAPURAM.
5. DISTRICT EDUCATION OFFICER
ATTINGAL, THIRUVANANTHAPURAM.
R2 TO R5 BY GOVT.PLEADER SRI.LIJU STEPHEN
BY SR.ADV. SRI.BABU VARGHESE
BY ADV. SRI.JOHNSON T. JOHN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21-05-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jm
"CR"
C.N. RAMACHANDRAN NAIR, J.
&
C.K. ABDUL REHIM, J.
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W.A. No. 895 OF 2012
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DATED THIS THE 21st DAY OF MAY, 2012
J U D G M E N T
Ramachandran Nair, J:
This writ appeal is filed by the Management and the Headmaster appointed by them challenging the judgment of the single Judge declaring the senior most teacher, though blind namely, the 1st respondent eligible for appointment as Headmaster in preference to 2nd Appellant.
2. We have heard Adv. R.T. Pradeep appearing for the appellants and senior counsel Sri. Babu Vargheese appearing for the 1st respondent and Government Pleader for the remaining respondents.
3. The facts leading to the controversy are the following. The 1st first appellant is a school for the blind where all the students suffer from some kind of visual disability. A vacancy of Headmaster arose as on 01-06-2002. The 1st appellant appointed the 2nd appellant as Headmaster W.A No.895/2012 -2- who had only 8 years of service as on the date of arising of Headmaster's vacancy. The Kerala Education Rules do not specifically provide any Special Rule for appointment of teachers or Headmaster in Special schools for the disabled students. However, Ext.P1 was issued by the Government on 22-11-1979 disentitling handicapped persons for recruitment as teachers and also for promotion as Headmasters. The post of Headmaster in first appellant's school was held by a blind person until 31-05-2002. When he retired, the 1st appellant decided to appoint a person without disability as Headmaster because according to them a blind person cannot function effectively as Headmaster of the school. In order to be promoted as Headmaster, a teacher should have minimum 10 years of experience as such in the school. However, it is provided in the Rule that in the absence of teachers with required period of experience any person with lesser experience above 5 years could be appointed on a working arrangement with an allowance of Rs.50/- per month upto W.A No.895/2012 -3- the period he acquires the required experience for regular appointment. Applying the provision contained in Ext.P1 the 1st appellant declined promotion to the 1st respondent who had 18 years of service as a teacher in the school and was eligible to be promoted, but for the disability she has that is blindness if it is a disqualification for her promotion as Headmaster. The appointment of the 2nd appellant with less than required years of service as Headmaster under the exception clause was not approved by the D.E.O or the appellate authority, namely Director of the Public Instruction. However, on a Revision petition filed to the Government, they approved the appointment of the 2nd appellant as Headmaster with a rider that for the first two years that is until he acquires the required experience, he will be paid only an allowance for holding charge of Headmaster and the appointment as regular Headmaster will be effective on completion of 10 years of service. The 1st respondent challenged the approval of appointment of the 2nd appellant as Headmaster by the Government by Ext.P11 W.A No.895/2012 -4- before Single Judge who upheld the 1st respondent's claim, against which this writ appeal is filed. Several issues crop up for decision in this writ appeal and one of it is 1st Appellant's claim as a minority institution entitling the Manager to appoint a Headmaster of their choice. Article 30 (1) of the Constitution as rightly contended by the appellants' counsel has overriding effect over K.E.R and even Section 47 (2) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter called the 'Persons with Disabilities Act'). However, senior counsel appearing for the 1st respondent submitted that Article 30 (1) has no application in this case because Minority institution in exercise of their right under the said Article has to necessarily appoint a qualified person as Headmaster. In this case as on the date, the vacancy arose on 01-06-2002 the 2nd appellant was not qualified to be appointed as Headmaster. The contention raised by the appellant's counsel is that when relaxation is provided in the Rules, minority institution's right to appoint W.A No.895/2012 -5- Headmaster of their choice should be reckoned by combining the Rule on relaxation. We are unable to accept this contention because the position settled by various decisions of the Supreme Court is that the right to appoint a Headmaster of their choice by the minority institution does not vest in them, the right to appoint an unqualified person. The exception to the experience clause which requires 10 years service for promotion as Headmaster applies only if the school does not have any teacher qualified for promotion as Headmaster. So much so the 1st appellant could appoint the 2nd appellant as Headmaster only if the 1st respondent or any other teacher of the school is not eligible for promotion as Headmaster.
4. The next question that remains to be considered is whether the prohibition against promotion of a handicapped person as Headmaster of a school contained in Ext.P1 which was issued in 1979 is still in force and if so whether it is liable to be struck down as violative of Section 47 (2) of the Persons with Disabilities Act. The contention raised by the W.A No.895/2012 -6- senior counsel for the 1st respondent is that the prohibitory clause against promotion of disabled person as Headmaster of the School is no longer valid by virtue of subsequent decisions taken by the Government. He has specifically referred Exts.P7 and P8 orders issued by the Government. We find force in the contention of the 1st respondent's counsel, because under Ext.P7 the Government on an experimental basis authorised appointment of a blind person as Headmaster of a Government school and the Director of Public Instruction was directed to monitor the functioning of such Headmaster. The Director of Public Instruction however reported to the Government that persons with disability who were appointed as Headmasters, particularly blind persons performed well as Headmasters and so much so they are fit to hold the post of Headmaster. In fact accepting the position that blind person is eligible to hold the post of Headmaster of a school, the Government promoted and appointed several blind teachers as Headmasters of schools. Exhibit P12 (a) W.A No.895/2012 -7- produced is the list of 12 persons who are blind persons holding the post of Headmasters of Government schools. 1st respondent's counsel also produced Ext.P13 (b) which shows the list of blind persons holding Headmaster's post even in Aided private schools. Going by the subsequent orders issued by the Government approving the appointment of blind persons as Headmasters after being satisfied about their suitability, that too after watching their performance supervised by the Director of Public Instruction, we do not think Ext.P1 which is a general notification prohibiting appointment of disabled persons as Headmaster is any longer valid. However the attitude of the Government is not consistent because at least in the case of 1st respondent, Government took a stand which is completely in deviation with the decision taken in the case of several persons whose claim for promotion as Headmaster were granted. It is seen in Ext.P11 that the Government was influenced by 1st appellant's right as minority institution under Article 30 (1) to appoint second W.A No.895/2012 -8- appellant as Headmaster of their choice. We have already taken the view above that minority right under Article 30 (1) does not apply in this case because the 2nd appellant was not qualified for appointment as Headmaster as on the date the vacancy arose when the 1st respondent was the only qualified person, but for the disability which is later found by the Government to be not a disqualification for promotion as Headmaster.
5. Counsel for the Appellants submitted that even though Section 47 of the Persons with Disabilities Act as such has no application, it conveys the idea that if a person is unsuitable for the post, he should not be allowed to hold the post after he acquires the disability. In other words an unsuitable person should not be appointed to a post in which he cannot effectively function. Since the single judge allowed W.Pc with specific reference to Section 47 (2) of the Persons with Disabilities Act, we feel in the fitness of things we should consider the scope of the said provision. For easy reference we extract Section 47 of the Persons with W.A No.895/2012 -9- Disabilities Act.
"S. 47-Non-discrimination in Government employments.-
(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."
6. It is clear from sub section (1) above that it covers a situation where an employee acquires disability during his service. The proviso no doubt makes it clear that if the disability is of such nature that the person holding the post is unable to discharge his functions effectively by virtue of his disability, he is not entitled to continue as such. W.A No.895/2012 -10- Protection is also provided to such persons by way of alternate employment who are found unsuitable for the post held by the person by virtue of the disability acquired and even if there is no suitable post for such persons they should be retained service in supernumerary posts in service until retirement. The clear idea conveyed by first proviso to sub section (1) of Section 47 is that the employer should not engage a disabled person in a post only if he cannot function properly or effectively. However, sub section 2 prohibits denial of promotion merely on the ground of disability. Further, the proviso authorises the appropriate Government to declare any type of work carried on in any establishment as not covered by sub section 2. What is visualised in the Section is that right of promotion of a disabled person is not absolute and the basic condition is his suitability for doing the work in the promoted post. Wherever disability stands in conflict with official responsibilities, the statute authorises the Government to exempt any establishment from operation of sub section 2 W.A No.895/2012 -11- for specific appointments in any establishment. So much so suitability in an employment is not dispensed with even under the Persons with Disabilities Act. It may be that disability may be partial or full and inspite of disability of a kind or upto a level disabled person may be able to manage and discharge duties and in such cases promotion should not be denied merely on the ground of disability. However, if disability is of such nature that the person claiming promotion is unable to discharge his duties effectively in the promotion post claimed by him, certainly the employer is entitled to deny promotion to the disabled person. Of course it would be impossible for the Government to identify suitability of a person with disability with reference to every promotion post for every establishment where disabled persons engaged in lower levels claim promotions. We are of the view that there is an implied limitation in the claim for promotion by virtue of operation of sub sections which insist that suitability and fitness cannot be dispensed with in any employment. So much so we feel even in the absence of W.A No.895/2012 -12- any specific order under proviso to sub section 2 exempting any establishment or posts for being filled up through promotion by disabled persons, still if the employer is satisfied of the inability or lack of fitness to discharge the functions and the responsibilities of office, promotion can be denied for want of fitness or suitability. Applying these tests in this case what we notice is that even though the Government in 1979 took the view that a disabled person is not entitled to be promoted as Headmaster, after the Persons with Disabilities Act came into force in 1995 the Government re-considered the nature of the disability of the blind and the suitability to function as Headmaster, and after experimenting with few cases, Government was satisfied that there was no case for exemption from the operation section 47 (2) for teachers claiming promotion as Headmasters. So much so the Government issued Exts.P7 and P8 orders approving promotions of disabled person particularly blind as Headmasters. Several visually challenged persons as of now are holding the post of W.A No.895/2012 -13- Headmasters in Government schools and even in private aided schools.
7. The 1st appellant's school is a school for the blind where all the students are visually challenged. The 1st appellant's counsel submitted that a blind Headmaster will not be effective because he has to supervise even hostel and food cooked and served for the blind children. Even though a person without physical disabilities will certainly be able to run the school as Headmaster more effectively than a disabled person the question to be considered is not the relative abilities of the person without any disability and the person who is visually challenged but the question is whether the visually challenged can he denied promotion merely on that ground. In the first place the Government on an experimental basis appointed blind teachers as Headmasters and found that they are able to run the school. Certainly when the Headmaster is blind he will get collective support from other teachers, staff, students and even management. Further we feel denial of promotion to W.A No.895/2012 -14- the blind teacher will send a wrong message to the blind children in the school that their disability is a handicap for prospects in life. We therefore feel that the 1st appellant management and other teachers should only render assistance to the 1st respondent who is left with time only to the end of next academic year to run the school as Headmistress.
8. Counsel for the appellants submitted that 2nd appellant's appointment was approved as regular Headmaster with effect from 01-06-2002 and ever since he is continuing as Headmaster and two years preceding that he was given only allowance for holding charge as Headmaster. Since 2nd appellant hold the post of Headmaster we feel the salary and allowances drawn by him should not be recovered. However from the date of judgment of the single judge he will be reverted to teachers post with the applicable pay and allowances. The 1st respondent should be appointed and approved as the Headmistress of the school with effect from that date. So W.A No.895/2012 -15- far as the 1st respondent is concerned her salary and allowances should be fixed as if she became Headmistress on 01-06-2002. She should be given pensionary benefits reckoning her service as Headmistress with effect from 01-06-2002 when the regular vacancy arose. However, she shall be entitled to arrears of salary and allowances as Headmistress from the date of judgment of the learned single judge i.e., 05-03-2012.
Writ appeal is disposed of as above.
Sd/-
C.N. RAMACHANDRAN NAIR, JUDGE.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge