Kerala HC | Seema Lal & Ors Vs. State of Kerala & Ors | WP(C).No.15436 OF 2017(S) | 22 Jan 2020

Dear colleagues,

Boom in medical tourism in Ayurveda, Kerala - God's own country, has seen proliferation of therapeutic services. With a large number of professional nurses, trained paramedical manpower, the State has also seen rise in Therapy Centres focussed on improving functional abilities and management of disabling conditions in children with disabilities. 

Several parents of children with disabilities having felt exploited at the hands of these institutions and against unprofessionally managed services with least care to child rights,  had raised a campaign for regulation of these institutions in 2015. It was learnt by parents that neither the department of health nor the social justice, women and child departments had any authority to regulate these therapy centres. These centres simply ran under the Shops and Establishements Act in the name of regulation. Several media stories led to ordering of a probe by the then Ernakulam district collector M Rajamanickam to order a probe by health department. The state child rights commission also passed directives to the state government seeking regulations. However not much change happened on the ground forcing the parents to move Kerala High Court through a writ petition. During the course of hearings, and as a result of several interim orders, Government of Kerala state took some actions to regulate these institutions. 

The Court has passed its judgement on 22 Jan 2020 in this matter titled 'Seema Lal & Ors Vs. State of Kerala & Ors' WP(C).No.15436 OF 2017(S).

In its judgment, the court has asked the state to issue the guidelines and ensure that all centres are registered with a fixed timeline. The Govt. has accordingly issued notifications, wherein the qualifications of all therapists are defined, and specifications have been issued while setting up therapy centres. Now, all therapy centres providing services to persons with disabilities under a regulatory mechanism need registration before a competent authority notified by government as per Section 49 of Rights of Persons with Disabilities Act, 2016.

This is a step in right direction and must be followed up in other States as well.

Download a copy of the Judgement

Kerala High Court
Petitioners:        Seema Lal and Ors
Respondents:     State of Kerala and Ors
Case No. :          WP(C).No.15436 OF 2017(S)
Date of Order:    22 Jan 2020

Copy of the Judgement :- Download  or read below.

Bureaucratic Inaction in Identifying Services Cannot Defer Disability Quota without a statutory exemption : Delhi High Court

• Court: High Court of Delhi

• Bench: Justice S. Muralidhar and Justice Talwant Singh

• Case No.: W.P.(C) 1904/2018

• Case Title: Dileep Kumar Shukla v. Union of India & Ors.

• Date of Judgment: January 20, 2020

• Citation: 2020:DHC:338-DB

• Cases Referred: Government of India v. Ravi Prakash Gupta (2010) 2 SCC (L&S) 448; Ravi Prakash Gupta v. Union Public Service Commission W.P.(C) 5429/2008; Union of India v. National Federation of the Blind (2013) 10 SCC 772; South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai (2015) 2 SCC 727.

Summary & Brief Background

The petitioner, a candidate with a benchmark visual impairment (Low Vision), participated in the Civil Services Examination (CSE) 2011 conducted by the Union Public Service Commission (UPSC) and secured an overall rank of 780. In his preference application, he indicated the Indian Administrative Service (IAS) as his 1st preference, followed by other Group 'A' accounts and civil services. He marked the Indian Revenue Service (Income Tax) [IRS (IT)] and the Indian Revenue Service (Customs & Central Excise) [IRS (C&CE)] as his 17th and 18th preferences respectively. Because no reservations were explicitly indicated for the Blind/Low Vision (B/LV) category in the IRS cadres within the CSE 2011 notification, the petitioner felt compelled to rank them significantly lower.

Based on his merit rank within the low vision category, he was allocated the Indian Information Service (Junior Grade) Group 'A' [IIS (JG)]. He subsequently approached the Central Administrative Tribunal (CAT) seeking an allocation to either IRS (IT) or IRS (C&CE) by tracking the legal statutory quota mandated for the physically handicapped category under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act). The CAT dismissed his application on May 17, 2017 , leading to the present writ petition before the Delhi High Court.

Core Arguments & Institutional Contradiction

• The Bureaucratic Omission: The petitioner contended that the Cadre Controlling Authorities (CCA) of the IRS cadres failed to provide the mandatory 1% reservation for the B/LV category across the vacancies distributed for the CSE 2011. Under Section 33 of the PWD Act, an establishment can only be exempted from this statutory allocation if a formal, specific Gazette Notification is issued by the appropriate government having regard to the nature of the work. No such exemption notification was ever processed or issued for these services.

• The Backlog Realities: Through subsequent Right to Information (RTI) queries, the petitioner established that hundreds of sanctioned posts remained completely unfilled in both the IRS (IT) and IRS (C&CE) cadres. For instance, as of late 2019, IRS (IT) recorded 543 vacant posts , while IRS (C&CE) revealed 2,202 vacant positions.

• The Institutional Contradiction: The respondent authorities relied on internal minutes from a 2007 departmental meeting which generalized that IRS portfolios were "not considered suitable for persons with visual disabilities". However, the petitioner exposed a clear systemic contradiction: in subsequent CSE rules (such as those notified in 2017 and 2018), both the IRS (IT) and IRS (C&CE) formally recognized the B/LV category and actively provided reservations for visually impaired candidates. This structural change shattered the respondents' argument that the physical nature of the work rendered the cadre inherently unsuitable for visually impaired officers.

Key Issues Addressed

1. Whether an individual government department can bypass the mandatory reservation framework of Section 33 of the PWD Act based on internal suitability policies, in the complete absence of an official executive exemption notification.

2. Whether the completed training and service confirmation of other batchmates can be used as a fait accompli to deny remedial service allocation to a disabled candidate whose statutory rights were compromised by bureaucratic inaction.

Observations & Findings of the Court

The Division Bench of the Delhi High Court set aside the CAT's order, ruling that statutory welfare protections cannot be structurally deferred or diluted by systemic delays:

• Dismantling of Erroneous Exemptions: The Court found that the CAT had proceeded on an entirely false premise by assuming that the Department of Revenue enjoyed an official legal exemption from reserving vacancies for the B/LV sub-category. Internal meeting logs or circulars are not substitutes for a statutory notification required under the proviso to Section 33.

• Rejection of Bureaucratic Delays: Highlighting established supreme court precedents, the Court observed that the mandate of reserving posts cannot be left at the mercy of delayed administrative identifying processes:

  "The submission made on behalf of the Union of India regarding the implementation of the provisions of Section 33 of the Disabilities Act, 1995, only after identification of posts suitable for such appointment, under Section 32 thereof, runs counter to the legislative intent with which the Act was enacted. To accept such a submission would amount to accepting a situation where the provisions of Section 33 of the aforesaid Act could be kept deferred indefinitely by bureaucratic inaction."

• No Shielding Behind a Fait Accompli: The Court firmly rejected the respondents' defence that any current intervention would destabilize the civil service cadres due to the passage of time since the 2011 recruitments:

  "The Court would not in the context of failure by the Government to provide reservations for the PH category, be presented with a fait accompli."

Directions Issued

Finding that the unfilled statutory vacancies should have legally been carried forward, the High Court issued the following time-bound operational directions:

1. The Respondents are directed to ascertain, within a period of eight weeks, which specific posts within the IRS (IT) and IRS (C & CE) frameworks earmarked for the PH category can be legally allocated to candidates with blindness or low vision.

2. Within a further period of eight weeks, the authorities must evaluate whether the petitioner can be successfully accommodated into any such earmarked PH vacancies for B/LV and subsequently issue appropriate appointment orders.

3. Upon appointment, the petitioner will not be eligible for arrears of actual pay. However, for the precise calculations of seniorities, future promotions, and notional pay fixations, his appointment will relate back to the original date he joined his service in the IIS (JG) under the CSE 2011 batch.

Legal Disclaimer: The summaries provided on this platform are for informational and academic purposes, aimed at increasing awareness of disability legislation and rights across Indian jurisprudence.

Read the Judgement

SC once again reaffirms reservation in promotion for persons with disabilities in Siddaraju Vs. Govt. of Karnataka case [Judgement Included]

Court: Hon'ble Supreme Court of India

Bench: Rohinton Fali Nariman, Aniruddha Bose, V. Ramasubramanian
Case Title: Siddaraju vs The State Of Karnataka on 14-15 January, 2020
Case No.: CIVIL APPEAL NO. 1567 OF 2017

Date of Judgement: 14-15 Jan 2020

Author: Rohinton Fali Nariman

Brief:

Dear Colleagues,

Please refer to our following earlier posts on various attempts of the Union of India to deny reservation in promotion for persons with disabilities citing Indra Sawhney Judgement,

1. Supreme Court says Section 33 entitles reservation for employees with disabilities in promotion in Group A, B, C and D alike [01 Jul 2016]
2. SC dismisses yet another attempt of Centre to sabotage reservation for employees with disabilities in promotion [03 Mar 2015]
3. SC clarifies 3% reservation in appointment for disabled extends to promotions & deputations as well [10 Oct 2014]
4. Physically Challenged Versus Logically Challenged [10 Dec 2013]

On 14 Jan 2020, a three judge Bench of Hon'ble Justice Rohinton Fali Nariman, Hon'ble Justice Aniruddha Bose and Hon'ble Justice V. Ramasubramanian while hearing Civil Appeal  No. 1567 OF 2017 titled Siddaraju Vs. State of Karnataka and Ors and batch of connected matters, once again reiterated its earlier stand on reservation in promotion for persons with disabilities allowing reservation in promotion for persons with disabilities in all the groups alike vis. Gp A, B, C or D.

A two judge bench of the SC had earlier clarified the same issue in matter titled Rajeev Gupta Vs. Union of India decided on 30 Jun 2016 had held that the bar against reservation in promotion in the Indra Sawhney judgment did not apply to persons with disabilities. The Court had then held that wherever posts are identified as suitable for persons with disabilities, 3% reservation must be given in direct recruitment as well as in promotion for employees with disabilities in Group A and B as it is given in Group C and D. The Govt. of India decided to however,  challenged it once again when the matter was referred to the present three judge bench to decide the question whether persons with disabilities were entitled to being granted reservation in promotion in view of the bar against reservation in promotion in the Indra Sawhney judgment along with batch of connected matters.

The lead case this time was Siddaraju vs The State Of Karnataka. In the instant case,  a disabled employee of the Karnataka Government approached the Karnataka High Court, seeking the benefit of reservation in promotion. The High Court dismissed his case in March 2016, before the SC judgment in Rajeev Kumar Gupta’s case was pronounced. Siddaraju appealed before the Supreme Court, and on 05 Jan 2017, a two judge bench presided over by Justice Adarsh Kumar Goel referred the matter to a larger (i.e. three judge) bench. Justice Goel’s bench felt that the Government’s contention that reservation in promotion was constitutionally impermissible, according to the 1992 SC judgment in Indra Sawhney’s case, deserved further consideration.

The three judge bench has once again reiterated its stand that Indra Sawhney judgement only applied to reservations under Art 16(4) of Constitution of India in favour of backward classes being a vertical reservation. The reservation in favour of persons with disabilities was covered under Article 16(1) and was a horizontal reservation and did not affect the total 50% ceiling of reservation.

Below is the judgement delivered on 14-15 Jan 2020 in the lead case Siddaraju vs The State Of Karnataka:

Towards Inclusive Education in Delhi: A Landmark Order on Special Educators in Schools by SCPD Delhi in Reshma Parveen Vs. Director of Education NCT of Delhi & Ors.

Court: State Commissioner for Persons with Disabilities, Delhi
Presided by: Sh. T. D. Dhariyal
Case No. : Case No. 824/1014/2019/04/9072-84
Case Title: Ms. Reshma Parveen vs. Director of Education, NCT of Delhi & Others
Date of Judgement/Order: 31.12.2019

Brief Introduction

In a significant stride toward inclusive education, the Court of the State Commissioner for Persons with Disabilities, Delhi, issued a detailed and progressive order on December 31, 2019, in the matter of Ms. Reshma Parveen vs. Director of Education, NCT of Delhi & Others (Case No. 824/1014/2019/04/9072-84). This case highlights the systemic gaps in the recruitment of Special Educators (SETs) in Delhi’s schools and underlines the urgent need to provide equitable education to children with disabilities as mandated by the Rights of Persons with Disabilities (RPwD) Act, 2016.

Notably, this order was subsequently referred to by the Hon’ble Supreme Court of India in the case of Rajneesh Kumar Pandey & Others v. Union of India & Others [W.P. (C) No. 876 of 2017, decided on 28 October 2021], while addressing the critical issue of recruitment and deployment of Special Educators across India. The Supreme Court bench comprising Justices A.M. Khanwilkar, Dinesh Maheshwari, and C.T. Ravikumar relied on the findings and directions of the State Commissioner’s order to strengthen the national discourse on inclusive education.

Background of the Case
Ms. Reshma Parveen, a CTET-qualified Special Educator with a 58% locomotor disability and RCI registration, brought to the Court’s attention a critical implementation failure: despite a 2009 Delhi High Court direction requiring two Special Educators per school, most of Delhi’s 5700 government schools still do not have even one.

Her demands included:

• Permanent recruitment of at least two Special Educators (Primary) in each school.
• Immediate deployment of contractual or guest Special Educators as a stop-gap.
• Proper employment opportunities for trained Special Educators.
• Quality education access for children with disabilities.

Key Submissions from Respondents

Various agencies presented fragmented and incomplete responses:

• North DMC: Claimed recruitment was the South DMC's responsibility. 700 posts had been forwarded to DSSSB.
• Delhi Cantonment Board: Had only contractual Special Educators—none permanent.
• NDMC: Trained 38 teachers, but had no regular Special Education cadre.
• EDMC: Operating with 92 SETs across 354 schools, with cluster-model plans due to shortfall.
• Directorate of Education: No sanctioned posts at primary level, though 2048 SET posts exist at higher levels. SETs often deployed for cross-disability roles without RCI-sanctioned training.
• RCI: Objected to DoE's practice of deploying unqualified teachers across disability types, citing violation of Section 13 of the RCI Act.
• NCTE: Failed to respond to key questions regarding qualification and eligibility frameworks.

Expert Opinions and Key Observations

Recognizing the complexity and lack of a standard formula for teacher deployment, the Commissioner convened consultations with education and disability experts. Highlights include:

• No clear norm exists on the required number of SETs per school.
• Disability-specific teacher-pupil ratios were recommended:
• 1:8 for VI, HI, Cerebral Palsy
• 1:5 for ID, ASD, SLD
• 1:2 for Deafblind and multiple disabilities
• While the cluster model was viewed as a temporary fix, it was unanimously emphasized that RCI-approved qualifications (D.Ed. for primary, B.Ed. for higher levels) must be maintained.
• The system must treat SETs at par with general teachers, with the ability to teach all students.

Directions & Recommendations by the Court

The Commissioner, invoking powers under Section 75 of the RPwD Act, issued wide-ranging, time-bound directives:

1. Creation of two SET posts per school, with specialization across all RCI-recognized disabilities.
2. Deployment strategy based on disability-wise student data and appropriate teacher-student ratios.
3. Conversion of general teaching posts into SET posts where feasible.
4. Establishment of resource centers in schools or clusters (within 2–3 km radius).
5. Reform of recruitment rules and service conditions to enable SETs to teach children with and without disabilities.
6. Curriculum reform:

• NCTE to integrate compulsory modules on sign language, Braille, and inclusive pedagogy in B.Ed./D.Ed.
• NCERT to provide online training on the Swayam platform.

7. Mandatory training for in-service teachers on disability inclusion.
8. Ministry of Education to issue model guidelines on inclusive education for replication nationwide.

On RCI’s concern, the Commissioner clarified that RCI registration is not required for every teacher, but orientation and training in inclusive practices is essential for all.

Reference in Supreme Court Judgment

The Supreme Court of India, while deciding Rajneesh Kumar Pandey & Others v. Union of India & Others (W.P. (C) No. 876 of 2017), explicitly referred to this 2019 order of the State Commissioner. The Apex Court recognized its evidentiary and policy value in demonstrating the gaps and practical measures needed to ensure educational rights of children with disabilities under Article 21A of the Constitution and the RPwD Act. The reference in a constitutional bench decision highlights the legal relevance and persuasive authority of orders passed by State Commissioners under Section 75 of the Act.

Conclusion and Impact

This comprehensive and well-reasoned order is a landmark in administrative jurisprudence on inclusive education. It not only addresses the staffing gaps in schools but also provides a blueprint for systemic reform in teacher training, resource allocation, and policy coordination across departments.

The State Commissioner’s reliance on multi-stakeholder consultation—from experts to implementing agencies—and the insistence on a rights-based, data-driven, and disability-specific strategy reflects the spirit of the RPwD Act and India's commitment under the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

As the order awaits compliance reports from authorities, it becomes an essential resource for disability rights advocates, policy makers, and educators seeking to ensure every child with a disability in Delhi—and across India—gets the education they are entitled to.

Read the Order