Kerala HC orders the Govt. of Kerala & Aided schools to fill up backlog of 3% reservation since 07 Feb 1996 under PWD Act 1995 & 4% reservation since 19.04.2017 under RPWD Act 2016

Dear colleagues,

The Kerala High Court (Ernakulam Bench)  has come heavily against the aided Schools in Kerala and Govt. schools for not implementing the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act 1995 and the Rights of Persons with Disabilities Act 2016 and not appointing persons with disabilities on the teaching and non -teaching posts.  Several cases were tagged together with a common grievance against the Govt. of Kerala. The court impleaded a total of 106 additional respondents in the lead case while the original petition only had three respondents namely the State of Kerala (rep by Secretary to General Education), the Director of General Education and the State of Kerala (rep. by Secretary Social Justice Deptt). 

The petitoner in the lead case was Mr. K.J. Varghese, the President of  Kerala Federation of the Blind, representing five blind persons who contended that they have acquired all the requisite qualifications to seek appointment to the post of Upper Primary School Teacher, High School Teacher, and also for non-teaching posts in Aided Schools in the State.

The court presided by Mr. Justice Raja Vijayaraghavan V.  in the judgement passed on 10 Aug 2022, held and declared that the Managers of Aided Schools are bound by G.O.(P) No.18/2018/SJD dated 18.11.2018, and they shall provide 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 G.O.(P) No. 5/19/SJD dated 7/05/2019 and the orders referred to therein.

It also quashed G.O.(P) No.19/2021/G.Edn. dated 08.11.2021 (Ext.P5 in W.P.(C) No.19808/2021) and Order dated 07.12.2021 vide No. H(2)/295299/2021/D.G.E. issued by the Additional Director General (Ext.P6 in W.P.(C) No.19808/2021) 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 1995 Act/2016 Act. 

The High Court bench ordered that in terms of G.O.(M.S) No.111/2022/G.Edn. 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 G.O.(P) No.18/2018/SJD dated 18.11.2018 as upheld by this Court in Renjith (supra) and in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the previous orders referred to therein.

The Court also ordered that the appointments already made by the management after the date of issuance G.O.(P) No.18/2018/SJD dated 18.11.2018 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 approval be granted in respect of those appointments. Approval of appointments already granted shall not be unsettled.

This case sets a clear road map for implementation of job reservations from 07 Feb 1996 as per the mandate of the1995 Act as a backlog and that the State couldn't decide when it wants to implement the law of its own whims and fancies by providing new cutt of dates. 

Below is the link to the Judgement dated 10 Aug 2022 by the High Court of Kerala at Ernakulam :  

W.P.(C) No.19808/2021 & connected cases titled  K.J. Varghese Vs. Govt. of Kerala & 108 Others [PDF 901 KB]

Uttarakhand HC: Persons With Disabilities Entitled To Horizontal Reservation Cutting Across "All Categories": HC Quashes UKPSC Recruitment Notification

High Court:   Uttarakhand High Court

Bench:              Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe

Case No. :         WP(S/B) No.49 of 2022, 

Case Title:        Manish Chauhan and another Vs. State of Uttarakhand and another

Date of Judgement:  27 July 2022

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Case Brief:

The Uttarakhand High Court has quashed an advertisement issued by the Uttarakhand Public Service Commission notifying vacancies for the post of Assistant Professors in Government Colleges, finding it to be in violation of Rule 11(4) of the Rights of Persons with Disability Rules, 2017 and the Supreme Court's decision in Indra Sawhney vs. Union of India and Anr.

The notification prescribed Horizontal reservation in a manner that in the Un-reserved category, no reservation was available to the physically handicapped candidates in the subject of Political Science. Similarly, in the History, no reserved seat was shown for a candidate of disability category who may also be a Scheduled Tribes candidate. 

"The manner in which the State has sought to apply Horizontal reservations is completely contrary to the decision of the Supreme Court in Indra Sawhney (Supra)...Persons with disabilities are entitled to horizontal reservation cutting across all categories." the bench of Chief Justice Vipin Sanghi and Justice Ramesh Chandra Khulbe observed.

The Court explained that an otherwise eligible and qualified candidate/person with disability would first be allocated a seat and depending on whichever category that person belongs to, i.e. whether the person is a Scheduled Caste, Scheduled Tribe, Other Backward Classes, or is a General Category candidate, the seat in that category would stand exhausted.

In Indra Sawhney the Supreme Court had elucidated that Horizontal reservations cut across the vertical reservations and persons selected against this quota will be placed in the appropriate category. "If he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments."

Similarly, Rule 11(4) of the 2017 Rules prescribes that reservation for persons with disabilities in accordance with the provisions of section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class.

In its counter affidavit, the UKPSC  submitted that their manner of working out horizontal reservation had been prescribed by the State of Uttarakhand. The Counter affidavit of State of Uttarakhand  stated that the impugned advertisement was issued in lieu of a government order dated 22.05.2020. The GO had stated that "if under horizontal reservation no eligible candidate is found fit for selection, the selection for the said post will be done as per norms of general selection except for the posts reserved for Divyang (Disabled Person)"

The Court opined that the manner in which the State had sought to apply horizontal reservations was legally unsustainable and the notification was accordingly quashed with liberty to come out with a fresh advertisement strictly in compliance with the law. 

Read the Court judgement embedded below:

Kerala HC- Double Bench dismissed the appeal against Single Bench order that directed the aided private educational institutes to implement reservation under Disabilities Act.

Court: Kerala High Court 

Bench: Mr. Justice A.M. Shaffique and Mr. Justice Gopinath P. 

Case No. : WA.No.1237 OF 2020 (against the Judgement in WP(C) 4753/2020(T) OF Hight Court of Kerala Dated 26/8/2020)   (Heard with WA.1238/2020, WA.1239/2020, WA.1242/2020, WA.131/2021)

Case Title (lead Case) : Secretary, NSS College Central Committee  Vs.  Renjith  J.V.

Date of Judgement: 04 Feb 2021

Brief:

Please refer to our earlier post titled Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities, dated 27 Aug 2022

The Respondent in the WP 4753 of 2020 had gone in appeal in the present case before the double bench, however the Bench dismissed the appeal finding no merits and that the contentions raised were similarly to many other cases already decided by the Supreme court of India.

The main contention urged on behalf of the Consortium of Catholic School Managements in Kerala was that Ext.P8 order cannot be enforced since no posts had been identified to be filled up in terms of Sections 32 and 33 of the 1995 Act and Sections 33 and 34 of the 2016 Act.

It was also contended that the posts which had been notified are relating to Government departments, Government schools and colleges and do not have any relation to the creation of posts with reference to aided schools and colleges. And, thefore, it was argued that unless the posts in such aided schools and colleges are notified in terms of the statutory provision, incorporating Exts. P3 to P7 Government Orders will not suffice.

The bench, however, did not find any of these arguments sustainable in light of catena of previoous judgements of the hon'ble Supreme Court, particularly, Justice Sunanda Bhandare Foundation v. Union of India [(2014) 14 SCC 383)].  Government of India through Secretary and Another v. Ravi Prakash Gupta [(2010) 7 SCC 626], Rajeev Kumar Gupta v. Union of India and Others [(2016) 13 SCC 153],  Indra Sawhney v. Union of India [1992Suppl (3) SCC 217], and therefore, dismissed the appeal.  

Read the detailed Judgement below:

Kerala HC: Aided Private Education Institutions are 'State' and need to implement reservation for persons with disabilities [Judgement Included]

Court: Kerala High Court,  Ernakulam Bench

Bench:  Hon'ble Smt. JUSTICE P.V. ASHA

Case No. (Lead Case) : WP(C).No.4753 OF 2020(T) Tagged Petitions: WP(C).224/2019(C), WP(C).1806/2019(A), WP(C).2800/2019(Y).

Case Title (lead Case) : Renjith J.V. Vs. State of Kerala and Others. 

Date of Judgement: 26 Aug 2020

Brief:

Dear Colleagues,

This judgement by a single bench of Kerala High Court at Ernakulam Bench sets a long pending issue to rest whether private aided education institutions come under the term "establishment" and are bound to follow the mandate of reservation of jobs. There were several writ petitions tagged to the present case with similar prayers. Many educational institutions seeking protection of 'minority' institution have been defying the law of the land regarding reservation in jobs for persons with disabilities despite being funded by the State claiming that they don't need to reserve or fill up seats by persons with disabilities as they are not 'state'. 

Petition was finally heard on 22 July 2020 and judgement delivered on 26 Aug 2020. The lead case has been WP(C).No.4753 OF 2020(T) Renjith J.V. Vs. State of Kerala and Others. Other petitions tagged were all from the year 2019 i.e. WP(C).224/2019(C), WP(C).1806/2019(A), WP(C).2800/2019(Y).  

The Rights of Persons with Disabilities Act 2016 only supplements and enhances the earlier reservation of 3% to now 4% and must be implemented in right earnest. There is a need to raise awareness, break the stereotypes and ensure that the private institutions are made aware of their legal responsibilities before they are sanctioned the government aids and grants.

Read the Judgement embedded below or Download Judgement. WP(C).No.4753 OF 2020(T)