THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON 10.05.2022 DELIVERED THE FOLLOWING: W.P.(C) No.3622/2021 Kerala High Court Anu Jayapal vs State Of Kerala on 10 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 3622 OF 2021
PETITIONER:
ANU JAYAPAL
AGED 33 YEARS
D/O.K.JAYAPALAN,
RESIDING AT KALACHANAZHIKOM, VALIYAKADA,
CHIRAYINKEEZH P.O.,
THIRUVANANTHAPURAM-695 304.
BY ADVS.
ELVIN PETER P.J.
K.R.GANESH
NIHARIKA HEMA RAJ
SIDHARTH SUDHEER
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
COLLEGIATE EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
THIRUVANANTHAPURAM-695 001.
3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, THIRUVANANTHAPURAM-695 001.
4 UNIVERSITY OF KERALA,
REPRESENTED BY ITS REGISTRAR,
OFFICE OF THE UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM-695 001.
5 THE MANAGER, SREE NARAYANA COLLEGE,
KOLLAM-691 001.
W.P.(C) No.3622/2021 :2:
6 APARNA AJITH
ASSISTANT PROFESSOR IN ENGLISH
SREE NARAYANA COLLEGE FOR WOMEN,
KOLLAM-691001,
RESIDING AT KRISHNAVANDANA
NEW NAGAR-23, MANAKKAD,
VADAKKEVILA P.O., KOLLAM-691010
7 NARMA S.PRATHEEP
ASSISTANT PROFESSOR IN ENGLISH
SREE NARAYANA COLLEGE, PUNALUR
RESIDING AT ALUVILA VEEDU
YEROOR P,O. YEROOR, ANCHAL
KOLLAM-691312
8 ASWATHY ANILKUMAR
ASSISTANT PROFESSOR IN ENGLISH
SREE NARAYANA COLLEGE, PUNALUR
RESIDING AT KANJIRAM THUNDIL,
ASWATHY, MUKKADA, KUNDARA P.O
KOLLAM-691501
9 JYOTHSNA C.R
ASSISTANT PROFESSOR IN ENGLISH,
SREE NARAYANA COLLEGE, KOLLAM,
RESIDING AT KOOTTUNKAL HOUSE,
PERUMBODATH ROAD, KEDAMANGALAM,
NORTH PARAVUR, ERNAKULAM
10 REMYA V.R
ASSISTANT PROFESSOR IN ENGLISH
T.K.M.M COLLEGE, NANGIARKULANGARA
RESIDING AT SIJU VIHAR, PADA NORTH,
KARUNAGAPPALLY, KOLLAM-690518
11 ARUNA S.AJAYAN
ASSISTANT PROFESSOR IN ENGLISH,
SREE NARAYANA COLLEGE, SIVAGIRI, VARKALA,
RESIDING AT SAMANUAYA, STRA-33
THURUVIKKAL P.O.,
ULLOOR, THIRUVANANTHAPURAM-695011
W.P.(C) No.3622/2021 :3:
BY ADVS.
SHRI.THOMAS ABRAHAM
SRI.A.N.RAJAN BABU
B.G.HARINDRANATH
SMT. ANIMA M. GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.03.2022, THE COURT ON 10.05.2022 DELIVERED THE
FOLLOWING:
W.P.(C) No.3622/2021 :4:
"CR"
JUDGMENT
Through this petition filed under Article 226 of the Constitution of India, the petitioner challenges Exhibit P8 notification issued by the Manager, Sree Narayana Colleges, a Corporate Educational Agency running various aided colleges and schools in the State of Kerala, calling for applications for appointment to the post of Assistant Professor in English. The challenge is raised primarily on the contention that the notification issued is in violation of the constitutional mandate and the benevolent provisions of the Rights of Persons with Disabilities Act, 2016 (Act 49 of 2016).
2. Short facts are as under.
(a) The petitioner is a Postgraduate in English and has acquired NET qualification. This fact would be evident from Exhibits P2 to P5 produced before this Court. The Standing Disability Assessment Board attached to the Taluk HeadQuarters Hospital, Chirayinkeezhu has examined her disability and they have concluded that the petitioner is suffering from Congenital Hemiparesis (locomotor disability) to the extent of 50%. The above fact is evident from Exhibit P1 Certificate.
(b) It is contended that the Government of Kerala recognising the mandate under Section 33 of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act 1 of 1996) that every Appropriate Government is required to appoint in every establishment, such percentage of vacancies not less than 3% for persons or class of persons with disability had initially come out with G.O.(P) No. 119/2005/SWD dated 06/08/2005, identifying 20 posts in class I and class II categories as suitable for appointment of physically handicapped persons in Government departments.
(c) Later, as per G.O.(P) No.43/2009/SWD dated 13/10/2009, the Government has identified 48 posts in class I and II and 4 posts in class III categories as suitable for appointment of Persons with Disability (PwD) in Government Departments.
(d) Thereafter, Ext.P6 was issued on 17/10/2012, categorising the posts identified for the different divisions among the disabled for appointment in public service including the post of Assistant Professor in colleges. Serial No. 33 in the list pertains to the post of Lecturer in Arts and Commerce, which post has been identified to be allocated to the person suffering from locomotor disability/cerebral palsy/blindness, low vision, or hearing impairment. The petitioner contends that since she falls in the said category, she is entitled to be considered for appointment to the post of Assistant Professor in the Government as well as aided colleges.
(e) While so, the 5th respondent issued Exhibit P7 notification on 31/03/2018 calling for applications for appointment to the post of Assistant Professor in English to the aided institutions managed by the said corporate educational Agency. As per the said notification, applications were invited to fill up 58 posts of Assistant Professors in various subjects under the different aided colleges managed by the 5th respondent in Kerala University, Calicut University and Kannur University. Insofar as the colleges affiliated to Kerala University are concerned, 44 vacancies were notified in the aided colleges run by the 5th Respondent.
(f) The petitioner contends that Exhibit P8 notification is illegal and unsustainable under law as the same is issued to deprive persons falling in the disabled category from securing employment. The petitioner asserts that the 5th respondent, being a Corporate Educational Agency receiving aid from the Government, would come under the definition of establishment as defined under the Act and that they were bound to appoint not less than 4% of the total numbers of vacancies in the strength in each group of posts meant to be filled with persons with benchmark disabilities in view of Sections 33 and 34 of Act 49 of 2016. It is asserted that the omission to call for PwD candidates would be in egregious violation of the provisions of the Rights of Persons with Disabilities Act, 2016 and that it is violative of the fundamental rights of the petitioner as well as other PwD's guaranteed under Articles 14 and 15 read with Article 41 of the Constitution of India. Nowhere in Exhibit P7 did the 5th respondent mention that 4% of the vacancy will stand reserved as is statutorily mandated for disabled persons in adherence to the mandate of Act 49 of 2016.
(g) Immediately thereafter, the 5th respondent issued Exhibit P8 notification dated 01/01/2020 calling for applications for appointment to the post of Assistant Professor in different subjects at the Kerala University and the Calicut University. It is contended that Exhibit P8 notification was published by the 5th respondent without providing for 4% reservation to the physically disabled candidates for appointment to the post of Assistant Professor in various disciplines as mandated under Act 49 of 2016. As per the said notification, 60 posts of Assistant Professors have been notified for the appointment out of which 51 vacancies pertain to the aided colleges run by the 5th respondent which are affiliated to the University of Kerala. Furthermore, 6 vacancies, out of the aforesaid 51, have been earmarked for English.
(h) Being qualified for appointment to the post of Assistant Professor in English, the petitioner submitted her application. She was issued with Ext.P9 memo calling her to appear before the selection committee on 25/08/2020. In tune with the directions in the memo, the petitioner appeared before the selection committee and placed all relevant records including Exts. P10 to P14 experience certificates and her credentials showing that she is eminently qualified for the post.
(i) The petitioner asserts that from Exts.P7 and P8, it is evident that the 5th respondent had not called for applications from disabled persons and she was the only person who fell into the category of disabled and who had occasion to appear for the interview. It is contended that the petitioner is legally entitled to be appointed to the post of Assistant Professor (English) in one of the Colleges under the 5th respondent in tune with Ext.P8 notification.
(j) According to the petitioner, as the 5th respondent has not reserved or appointed disabled persons to the post of Assistant Professor pursuant to Ext.P7 notification and as there are backlog vacancies in the 5th respondent Corporate Educational Agency in the category of Assistant Professor, they were bound to fill up all the backlog vacancies reserved for physically disabled persons and also legally bound to appoint persons with physical disability in relation to the appointments made as per Ext.P8 notification.
(k) Though the petitioner was the only aspirant to the post in the disabled category entitled for appointment, she was left out by the selection committee.
3. It is in the above backdrop that this writ petition is filed seeking issuance of directions to the 5th respondent to earmark 4% of the vacancies in the post of Assistant Professor notified in Ext.P8 notification and for further direction to the 5th respondent to appoint a physically disabled person to the post of Assistant Professor in the English Department; for a direction to the 5th respondent to appoint the petitioner to the post of Assistant Professor (English) in the 4% vacancies earmarked for physically disabled persons in the aided colleges affiliated to the 4th respondent Kerala University and managed by the 5th respondent; for a direction to the respondents 2 to 4 to compel the 5th respondent to appoint the petitioner to the post of Assistant Professor in English in one of its aided colleges affiliated to the 4th respondent University; and for a declaration that the petitioner is entitled to get appointment as Assistant Professor (English) under the 5th respondent Corporate Educational Agency in the light of Section 34 of Act 49 of 2016 read with Ext.P6 Government Order.
4. This Writ Petition was filed on 10.2.2021. In view of the contentions taken by the 5th respondent in the counter affidavit and the subsequent turn of events, the writ petition was caused to be amended by incorporating additional pleadings and prayers. Before delving into those aspects, the stand taken by the 5th respondent in the counter can be elucidated in brief.
5. In the counter affidavit filed by the 5th respondent, they have contended that the disability suffered by the petitioner is only moderate. It is stated that the petitioner had applied for the post in the General Category and hence her application could not have been reckoned as one in the reserved category. The petitioner scored low in the interview because she was not having higher qualifications which would have entitled her to better credit in the interview. The petitioner cannot rely on Ext. P6 Government Order as what is referred therein are posts categorized for appointment in Government Colleges under the Collegiate Education Department. It is stated that appointments to the post of Assistant Professors in aided colleges can be made only in accordance with the provisions contained in the relevant University Act and the UGC Regulations. As the petitioner had submitted her application in pursuance to Ext.P8 notification in the General category, and as the ranked list was prepared by the selection committee based on the guidelines prescribed under the University Act and the UGC Regulations, the 5th respondent could not have made appointments except in accordance with the relevant statutory Regulations and Rules. It is further stated that Act 1 of 1996 or for that matter Exhibit P6 cannot be made applicable for appointments in Aided Arts and Science Colleges which are covered by the agreement executed between the Management and Government for direct payment of salary to teachers. According to the 5th respondent, an aided college will not come within the definition of establishment under Section 2(k) of Act 1 of 1996 nor can they be categorized as an employer as defined under the Act. It is contended that even as of date, there is no provision either in the relevant statute or in academic regulation prescribing a method of appointment of physically disabled persons to any post in aided colleges. The 5th respondent would further contend that the management had considered applications of physically disabled persons in the General Category and two individuals were appointed as Assistant Professors. In view of the above, the question of backlog does not arise in the cases of the 5th respondent. It is stated that in pursuance to Exhibit P8 notification, the meeting of the selection committee was held on the 25th and 27th of August, 2020 at SN College, Cherthala and a rank list containing 18 names was finalized by the committee constituted as per the guidelines contained in the University Act and the UGC Regulations. It is further stated that 6 posts were notified for English and from the rank list, 6 candidates were appointed as Assistant Professors in English in colleges affiliated with the University of Kerala. All the candidates so appointed have joined duty in the respective colleges on 29/09/2020 as is evident from Ext.R5(a) list. The details of the Assistant Professors who have been selected and posted were also furnished along with the counter.
6. In the statement filed by the learned standing counsel appearing for the 4th respondent University, it is stated that Ext.P6 relied on by the petitioner is not applicable for filling up of posts of Lecturers in aided colleges. It is further stated that the status of an aided college is conferred by the Government on colleges run by private educational agencies on the basis of an agreement entered into by the respective agencies with the Government with specific terms and conditions and in view of the above, the reservation policy is not applied. The appointment of teaching staff to such colleges is guided by the regulations of the UGC with regard to eligibility conditions. As per the existing UGC Regulations, a 5% relaxation of marks from a minimum of 55% is allowed to the Bachelors and at the Masters level for the candidates belonging to Locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy.
7. By an interim order dated 15.3.2021, this Court had directed the respondents to keep one post of Assistant Professor in English to be kept unfilled to accommodate the petitioner, in case she succeeds in this writ petition.
8. During the pendency of the Writ petition, the 5th respondent issued Ext.P15 notification dated 15.9.2021, inviting fresh applications for appointment to the post of Assistant Professor in English. In the said notification also, the 5th respondent did not reserve vacancies for PwD in terms of the provisions of Act 49 of 2016.
9. The petitioner in the said circumstances, filed I.A.No.1/2021 seeking to direct the 5th respondent to permit the petitioner to participate in the selection process conducted by the 5th respondent in pursuance to Ext.P15 notification to the post of Assistant Professor (English) in the Aided Colleges managed by the 5th respondent, without prejudice to her right to prosecute the above writ petition and to get an appointment in terms of Ext.P8 notification. In the very same application, the petitioner also sought the prayer to direct the 5th respondent to keep one post of Assistant Professor (English) vacant without filling up from the ranked list to be published pursuant to Ext.P15 notification.
10. In view of the subsequent turn of events, the petitioner filed I.A.No.3/2021 in W.P.(C) No.3622/2021 seeking to amend the writ petition. In the application for amendment, it is contended that pursuant to the filing of the writ petition, based on a request made by the counsel for the petitioner under the Right to Information Act, it was revealed that the 5th respondent has conducted the selection proceedings and has appointed respondents 6 to 11 as Assistant Professors in English in various colleges run by the said respondent as is evident from Exts. P17 to P22 appointment orders. The appointees were impleaded as additional respondents 6 to 11 and an additional prayer was sought for quashing Exts.P17 to P22 and a declaration was sought that the additional respondents are not entitled to continue as Assistant Professors in English under the 5th respondent in view of the blatant violation of the provisions of Act 49 of 2016 and the law laid down by the Hon'ble Supreme Court as well as this Court.
11. By order dated 27.10.2021, this Court had allowed the application for amendment filed as I.A.No. 3/2021.
12. Later, by order dated 25.11.2021, this Court passed an interim order of stay with regard to the continuation of the selection process pursuant to the notification dated 15.9.2021.
13. The 5th respondent thereafter came up with I.A.No.5/2021 seeking to permit the 5th respondent to proceed with the selection process pursuant to Ext.P15 notification dated 15.9.2021 and also to consider the 17 applications received from physically disabled persons under the 4% eligible disability quota or in the alternative, to permit the 5th respondent to issue an erratum notification or addendum to Ext.P15 notification with a view to additionally notify that 4% of the vacancy is reserved for the physically disabled persons and to proceed with the selection process. In the said application, it was mentioned that the 5th respondent, in pursuance of Ext.P15 notification, had received 2274 applications in all the subjects and out of the said applications, 17 applicants including the petitioner fell into the PwD category. A list of disabled candidates who had filed applications was also produced as Ext.R5(b). The 5th respondent has also produced Ext.R5(c) to (f) corrigendum notification on 29.12.2021, as per which, an additional clause was added to Ext.P15 notification to the following effect.
"4% vacancies are reserved for physically challenged candidates" It was also mentioned in Ext.R5(c) to (f) that PwD can submit their applications within a period of one month from the date of issuance of the corrigendum notification.
14. Thereafter, I.A.No.3/2022 was filed by the petitioner incorporating additional pleadings and also a prayer to quash Ext.P8 notification.
15. Though notice was served on the party respondents, and some of them have appeared through their counsel, they have not chosen to file any counter-affidavit.
16. I have heard Sri. Elvin Peter, the learned counsel appearing for the petitioner, Sri. A.N.Rajan Babu, the learned standing counsel appearing for the 5th respondent, Sri.Thomas Abraham, the learned standing counsel appearing for the Kerala University, Sri. B.G.Harindranath, the learned counsel appearing for the party respondents and the learned Government Pleader.
17. Sri. Elvin Peter, the learned counsel, argued that the Hon'ble Supreme Court had time and again reiterated that the beneficial provisions of Act 1 of 1996 cannot be allowed to remain only on paper for years with a view to defeat the very purpose of such law and legislative policy. Directions have been issued to the Union, the State and all those upon whom obligation has been cast to effectively implement it and they were asked to be proactive. Reliance was placed on Justice Sunanda Bhandare Foundation v. Union of India [(2017) 14 SCC 1], and it was argued that the Apex Court, after noting that the 2016 Act has been enacted with many salient features conferring more rights on the disabled persons by including more categories, had exhorted all the States and Union Territories to file compliance report keeping in view the provisions of the 2016 Act and in compliance with the wide ranging directions issued earlier in Union of India v. National Federation of the Blind [(2013) 10 SCC 772] and Justice Sunanda Bhandare Foundation v Union of India (2014) 13 SCC 383]. In tune with the directions so issued by the Apex Court, the Government of Kerala issued G.O.(P) No.18/2018/SJD dated 18.11.2018 providing for 4% reservation as per the provisions of Act 49 of 2016 and ensuring 3% reservation as per the provisions of Persons with Disabilities Act, 1995, in aided schools and aided colleges. It is further submitted that the Government has later come up with G.O.(MS) No.96/2021/HEDN dated 15.2.2021 ordering that the Government Order dated 18.11.2018 would be applicable to all appointments made in Private, Aided, Arts and Science Colleges in the State. According to the learned counsel, in view of the Government Order dated 18/11/2018, the 5th respondent would be bound to comply with the provisions of Act 49 of 2016. According to the learned counsel, a learned Single Judge of this Court in Renjith v. State of Kerala [2020 (5) KLT 324] had occasion to hold that neither minority rights guaranteed under Article 30(1) of the Constitution nor the direct payment agreement entered into between the Government would stand in the way of implementation of the provisions of Act 49 of 2016. It was further held that it was the duty of the management of aided educational institutions to see that differently-abled persons are also given appointments against the 3%, 4% vacancies. The conclusion so made by the learned Single Judge was challenged in W.A.No.1237/2020 and the same was upheld by the Division Bench and confirmed by the Apex Court. The learned counsel would further contend that a Division Bench of this Court in Balakrishnan v. State of Kerala [2021 (4) KLT 375], had occasion to hold that aided educational institutions are bound to comply with the mandate of Act 1 of 1996 read along with the provisions of Act 49 of 2016. The learned counsel would then rely on the judgment of the learned Single Judge of this Court in Dinesan E. v. State of Kerala and Ors. [2015 (1) KLT 540] and it is argued that this Court had held that filling up of vacancies in the 3% quota only for the period from the date of identification of the posts was in violation of the mandate under Section 33 of the 1995 Act and directions were issued to fill up all the backlog vacancies for the period from 1996, the date of the commencement of the 1995 Act, irrespective of the date on which the Government identified the post or the date on which the selection was entrusted with the Public Service Commission. The judgment of the learned Single Judge was affirmed in Kerala Public Service Commission v. E. Dinesen and Ors. [2016 (2) KHC 910]. Relying on the judgment of this Court in Radhakrishnan P. V Cochin Devaswom Board, Thrissur and Others [2015 (4) KLT 523] and Madhu v. Travancore Devaswom Board [2017 (1) KLT 653], it is submitted that both the Cochin Devaswom Board as well as the Travancore Devaswom Board were held to come within the ambit of "Establishment" as defined under the 1995 Act and the principles laid therein can be profitably be applied to the case of the 5th respondent as well. The learned counsel would also rely on a judgment of this Court in Jomy Joseph v. State of Kerala [2022 (2) KLT 833] and it is argued that the position above has been cemented further in the above judgment. According to the learned counsel, Ext.P7, P8 and P15 notifications issued by the 5th respondent ignoring the statutory mandate, the law laid down by the Hon'ble Supreme Court and this Court in the judgments referred above are in blatant violation of the rights of the disabled guaranteed under Article 14 and 15 of the Constitution of India. According to the learned counsel, the beneficial provisions of the benevolent legislation cannot be permitted to be defeated by those persons upon whom obligation has been cast to effectively implement the statutory provisions. The learned counsel would vehemently contend that Ext.P8 notification and subsequent appointments of respondents 6 to 11 and the grant of approval by the University are all illegal and liable to be quashed.
18. Sri. A.N. Rajan Babu, the learned standing counsel appearing for the 5th respondent, submitted that neither Ext.P6 Government Order nor the Government Order dated 18.11.2018 would bind the 5th respondent. According to the learned counsel, the 5th respondent can make appointments only in accordance with the provisions of the University Act, Statutes and the Regulations and under no circumstances, will an aided college come within the definition of 'establishment' as defined under Section 2(k) of Act 1 of 1996. According to the learned counsel, the 5th respondent would not come within the ambit of the term 'employer' as defined under Section 2(j) and hence, they are not bound to appoint PwDs as contended by the petitioner. It is further submitted that having participated in the selection process in pursuance of Ext.P8, knowing fully well that no reservation has been provided for physically disabled candidates, she cannot now turn around and challenge the appointment orders. According to the learned counsel, Ext.P8 notification was published on 1.1.2020 and the ranked list of the candidates was published as early as August 2020. The selected candidates joined the respective colleges on 29.9.2020. The writ petition was however filed only in February, 2021 and this Court had ordered to keep one post unfilled only on 5.3.2021.
19. I have also heard Sri. B.G. Harindranath, the learned counsel appearing for the party respondents. The learned counsel supported the contentions of Sri. A.N.Rajan Babu, however, without choosing to place on record a counter-affidavit.
20. I have carefully considered the submissions and have anxiously gone through the records. As the issues raised in this case is covered by precedents, it would only be appropriate at this juncture to narrate the development of Law in its sequence.
21. It was during the launch of the Asian and Pacific Decade of Disabled Persons in 1993-2002, that an urgent need was felt among the member states for a comprehensive legislation to protect the rights of persons with disabilities. Being one among the member States of the Economic and Social Commission for Asia and the Pacific held in Beijing in December 1992, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted which came into force on 7-2-1996. The Act, in addition to its other prospects, also seeks for better employment opportunities to persons with disabilities by way of reservation of posts and establishment of a special employment exchange for them. Section 32 of the Act stipulates for identification of posts which can be reserved for persons with disabilities. Section 33 provides for reservation of posts and Section 36 thereof provides that in case a vacancy is not filled up due to non-availability of a suitable person with disability, in any recruitment year such vacancy is to be carried forward in the succeeding recruitment year.
22. The Apex Court in Union of India v. National Federation of the Blind [(2013) 10 SCC 772] lamented about the ways in which Disabled persons are kept out by constructing social and practical barriers in attaining their potential. It was observed that Employment is a key factor in the empowerment and inclusion of people with disabilities. The nation was reminded that it is an alarming reality that the disabled people are out of job not because their disability comes in the way of their functioning rather it is social and practical barriers that prevent them from joining the workforce. As a result, many disabled people live in poverty and in deplorable conditions. They were being denied the right to make a useful contribution to their own lives and to the lives of their families and community.
23. The provisions of Act 1 of 1996 and particularly Section 32 and 33 of the Act was interpreted by the Hon'ble Supreme Court in Union of India v. National Federation of the Blind, [(2013) 10 SCC 772]. The question for determination raised in that case was whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32. The said question was answered in the following manner in paragraph No.30 of the judgment.
30. The question for determination raised in that case was whether the reservation provided for the disabled persons under Section 33 of the Act is dependent upon the identification of posts as stipulated by Section 32.In Ravi Prakash case [(2010) 7 SCC 626 , the Government of India sought to contend that since they have conducted the exercise of identification of posts in civil services in terms of Section 32 only in the year 2005, the reservation has to be computed and applied only with reference to the vacancies filled up from 2005 onwards and not from 1996 when the Act came into force. This Court, after examining the interdependence of Sections 32 and 33 viz. identification of posts and the scheme of reservation, rejected this contention and held as follows : (SCC pp. 633-34, paras 25-27, 29 & 31) "25. ... 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. Such a stand taken by the petitioners before the High Court was rightly rejected. Accordingly, the submission made on behalf of the Union of India that identification of Groups A and B posts in the IAS was undertaken after the year 2005 is not of much substance.
26. As has been pointed out by the High Court, neither Section 32 nor Section 33 of the aforesaid Act makes any distinction with regard to Groups A, B, C and D posts. They only speak of identification and reservation of posts for people with disabilities, though the proviso to Section 33 does empower the appropriate Government to exempt any establishment from the provisions of the said section, having regard to the type of work carried on in any department or establishment. No such exemption has been pleaded or brought to our notice on behalf of the petitioners.
27. It is only logical that, as provided in Section 32 of the aforesaid Act, posts have to be identified for reservation for the purposes of Section 33, but such identification was meant to be simultaneously undertaken with the coming into operation of the Act, to give effect to the provisions of Section 33. The legislature never intended the provisions of Section 32 of the Act to be used as a tool to deny the benefits of Section 33 to these categories of disabled persons indicated therein. Such a submission strikes at the foundation of the provisions relating to the duty cast upon the appropriate Government to make appointments in every establishment.
xxxx xxxxx xxxxx
29. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise.
24. It was held that computation of 3% reservation is based on the total number of vacancies in cadre strength and not on the basis of vacancies available in identified posts. It was also held that computation of posts are not dependant upon identification of posts as stipulated in 32. The scope of identification comes into the picture only at the time of appointment in post identified for disabled persons and is not relevant at the time of computing 3% reservation under Section 33 of Act 1 of 1996.
25. Another impediment which was placed to deter PwD from achieving their potential was the contention that computation of reservation against the total vacancies in the cadre strength will violate the rule of 50% ceiling of reservation in favour of SC, ST and OBC as laid down by this Court in Indra Sawhney v. Union of India [1992 Supp (3) SCC 217]. The said contention was rejected by holding thus in paragraph 42 to 49 in Union of India v. National Federation of the Blind [(2013) 10 SCC 772].
42. A perusal of Indra Sawhney [1992 Supp (3) SCC 217] would reveal that the ceiling of 50% reservation applies only to reservation in favour of Other Backward Classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution. In fact, this Court in the said pronouncement has used the example of 3% reservation in favour of persons with disabilities while dealing with the rule of 50% ceiling. Para 812 of the judgment clearly brings out that after selection and appointment of candidates under reservation for persons with disabilities they will be placed in the respective rosters of reserved category or open category respectively on the basis of the category to which they belong and, thus, the reservation for persons with disabilities per se has nothing to do with the ceiling of 50%. Para 812 is reproduced as follows : (SCC pp. 735-36) "812. ....... all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations--what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains--and should remain--the same."
43. Yet another contention raised by the appellants is that the reservation for persons with disabilities must be vacancy-based reservation whereas Respondent 1 herein contended that it must be post-based reservation as laid down by the High Court in the impugned judgment [(2009) 156 DLT 446] . Respondent 1 herein relied upon the heading of Section 33 of the Act viz. "Reservation of posts", to propose the view that the reservation policy contemplated under Section 33 is post-based reservation.
44. It is settled law that while interpreting any provision of a statute the plain meaning has to be given effect and if the language therein is simple and unambiguous, there is no need to traverse beyond the same. Likewise, if the language of the relevant section gives a simple meaning and message, it should be interpreted in such a way and there is no need to give any weightage to headings of those paragraphs. This aspect has been clarified in Prakash Nath Khanna v. CIT [(2004) 9 SCC 686]. Para 13 of the said judgment is relevant which reads as under : (SCC p. 695) "13. It is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. 'Statutes should be construed, not as theorems of Euclid', Judge Learned Hand said, 'but words must be construed with some imagination of the purposes which lie behind them'. (See Lehigh Valley Coal Co. v. Yensavage [218 Fed 547 (2nd Cir 1914)] .) The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [(1990) 1 SCC 277] and Padma Sundara Rao v. State of T.N. [(2002) 3 SCC 533] "
45. It is clear that when the provision is plainly worded and unambiguous, it has to be interpreted in such a way that the court must avoid the danger of a prior determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow fitted. While interpreting the provisions, the court only interprets the law and cannot legislate it. It is the function of the legislature to amend, modify or repeal it, if deemed necessary.
46. The heading of a section or marginal note may be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent. However, when the section is clear and unambiguous, there is no need to traverse beyond those words, hence, the headings or marginal notes cannot control the meaning of the body of the section. Therefore, the contention of Respondent 1 herein that the heading of Section 33 of the Act is "Reservation of posts" will not play a crucial role, when the section is clear and unambiguous.
47. Further, the respondents heavily relied on a decision of the Constitution Bench in R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745] to substantiate their contention. Para 6 reads as under : (SCC pp. 751-52) "6. The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts, which form the cadre strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."
48. Adhering to the decision laid by the Constitution Bench in R.K. Sabharwal [(1995) 2 SCC 745] , the High Court held as follows : (National Federation of the Blind case [(2009) 156 DLT 446] , SCC p. 458, para 16) "16. The Disabilities Act was enacted for protection of the rights of the disabled in various spheres like education, training, employment and to remove any discrimination against them in the sharing of development benefits vis-à-vis non-disabled persons. In the light of the legislative aim it is necessary to give purposive interpretation to Section 33 with a view to achieve the legislative intendment of attaining equalisation of opportunities for persons with disabilities. The fact that the vacancy-based roster is to be maintained does not mean that 3% reservation has to be computed only on the basis of vacancy. The difference between the posts and vacancies has been succinctly pointed out in the Supreme Court decision in R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745], wherein it was held that the word 'post' means an appointment, job, office or employment, a position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation. Therefore, in our opinion, 3% reservation for disabled has to be computed on the basis of total strength of the cadre i.e. both identified as well as unidentified posts."
49. However, the decision in R.K. Sabharwal [(1995) 2 SCC 745] is not applicable to the reservation for the persons with disabilities because in the abovesaid case, the point for consideration was with regard to the implementation of the scheme of reservation for SC, ST and OBC, which is vertical reservation whereas reservation in favour of persons with disabilities is horizontal. We harmonise with the stand taken by the Union of India, the appellant herein in this regard. Besides, the judgment in R.K. Sabharwal [(1995) 2 SCC 745] was pronounced before the date on which the Act came into force, as a consequence, the intent of the Act must be given priority over the decision in the abovesaid judgment. Thus, in unequivocal terms, the reservation policy stipulated in the Act is vacancy-based reservation.
26. It was held that the ceiling of 50% reservation applies only to reservation in favour of Other Backward Classes under Article 16(4) of the Constitution of India whereas the reservation in favour of persons with disabilities is horizontal, which is under Article 16(1) of the Constitution. It was declared that 3% reservation for disabled in terms of the 1996 Act has to be computed on the basis of total strength of the cadre i.e. both identified as well as unidentified posts.
27. Later, in Justice Sunanda Bhandare Foundation v Union of India and Another [(2014) 14 SCC 383], the Foundation had to approach the Apex Court yet again for implementation of the provisions of Act 1 of 1996, for the reservation of 1% of the identified teaching posts in the faculties and college of various universities in terms of Section 33 of the 1995 Act and for declaration that denial of appointment to the visually disabled persons in the faculties and college of various universities in the identified posts is violative of their fundamental rights guaranteed under Articles 14 and 15 read with Article 41 of the Constitution of India. While disposing of the matter, it was ordered as follows in paragraph Nos.9, 10 and 12 of the judgment :
9. Be that as it may, the beneficial provisions of the 1995 Act cannot be allowed to remain only on paper for years and thereby defeating the very purpose of such law and legislative policy. The Union, States, Union Territories and all those upon whom obligation has been cast under the 1995 Act have to effectively implement it. As a matter of fact, the role of the governments in the matter such as this has to be proactive. 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.
10. More than 18 years have passed since the 1995 Act came to be passed and yet we are confronted with the problem of implementation of the 1995 Act in its letter and spirit by the Union, States, Union Territories and other establishments to which it is made applicable.
xxxxxx xxxxx xxxx
12. In our view, the 1995 Act has to be implemented in letter and spirit by the Central Government, State Governments and Union Territories without any delay, if not implemented so far. We, accordingly, direct the Central Government, State Governments and Union Territories to implement the provisions of the 1995 Act immediately and positively by the end of 2014.
28. In Dineshan v. State of Kerala [2015 (1) KLT 540], a physically challenged person with locomotor disability had approached this Court seeking to quash the order which was impugned therein to the extent that it restricts the benefits of 3% reservation to PwD under Act 1 of 1996 with effect from 1.2.2010 and also for a further declaration that PwD are entitled to get the backlog vacancies from 1996 in various posts from 1996 while making appointments to the public undertakings and Government Companies. While allowing the Writ Petition it was held as follows in paragraph 25 to 27 of the judgment.
25. The Act which is passed by the Parliament will prevail over the State Acts or Regulations as envisaged by Art.254 of the Constitution of India. Hence any repugnance in the State Acts or Regulations shall not stand in the way of implementing the mandate in the Act and the State is duty bound to implement Sections 33 and 36 of the Act and no contentions would lie against its implementation. As per Ext.P6 judgment, reservation has to take effect from 1996 which is the year of enactment of the legislation.
26. In the instant case, the backlog vacancies from 1.1.2004 to 31.12.2007 or at least the backlog vacancies numbering 42 which was left unfilled in the previous recruitment has to be filled up in order to comply with Ext.P6 judgment.
27. On a consideration of the entire materials now placed on board, this Court is of the view that the petitioner is entitled to succeed.
Therefore, this Writ Petition is allowed. Ext.P4 is quashed to the extent it restricts the benefit of 3% reservation of handicapped persons mandated under Section 33 of the Act from the date of Ext.P5 order i.e., 1.2.2010.
It is hereby declared that the handicapped persons defined under the Act are entitled to get the backlog vacancies from 1996 in the post of Assistant Grade II/Clerk/Junior Clerk/LDC/Cashier while making appointments to the public sector undertakings and Government companies under the first respondent by reserving 3% to the handicapped persons.
29. The above judgment was confirmed by the Division Bench in Kerala Public Service Commission v. E. Dinesan and Ors. [2016 (2) KHC 910].
30. In Rajeev Kumar Gupta and Others v Union of India and Others [(2016) 13 SCC 153], some employees of the Prasar Bharati Corporation approached the Apex Court challenging the Memorandum issued by the DoPT, GOI, depriving them of the statutory benefit of reservation under the 1995 Act with regard to Group A and Group B posts in the Prasar Bharati. While allowing the writ petition after quashing the impugned Memorandum, it was held as follows in paragraph Nos.22 to 25 of the judgment.
22. The 1995 Act was enacted to fulfill India's obligations under the "Proclamation on the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region". The objective behind the 1995 Act is to integrate PWD into the society and to ensure their economic progress. [See Paras 3, 4 and 5 of the Proclamation of the Full Participation and Equality of the People with Disabilities in the Asia and Pacific Region.] The intent is to turn PWD into "agents of their own destiny". [Id, para 2.] PWD are not and cannot be equated with backward classes contemplated under Article 16(4). May be, certain factors are common to both backward classes and PWD such as social attitudes and historical neglect, etc.
23. It is disheartening to note that (admittedly) low numbers of PWD (much below three per cent) are in government employment long years after the 1995 Act. Barriers to their entry must, therefore, be scrutinised by rigorous standards within the legal framework of the 1995 Act.
24. A combined reading of Sections 32 and 33 of the 1995 Act explicates a fine and designed balance between requirements of administration and the imperative to provide greater opportunities to PWD. Therefore, as detailed in the first part of our analysis, the identification exercise under Section 32 is crucial. Once a post is identified, it means that a PWD is fully capable of discharging the functions associated with the identified post. Once found to be so capable, reservation under Section 33 to an extent of not less than three per cent must follow. Once the post is identified, it must be reserved for PWD irrespective of the mode of recruitment adopted by the State for filling up of the said post.
25. In the light of the preceding analysis, we declare the impugned memoranda as illegal and inconsistent with the 1995 Act. We further direct the Government to extend three per cent reservation to PWD in all identified posts in Group A and Group B, irrespective of the mode of filling up of such posts. This writ petition is accordingly allowed.
31. Despite all these pronouncements to further the cause of PwD, and the beneficial provisions of the Act 1 of 1996, everything remained only on paper. It was clear that no proactive efforts were being taken to effectively implement the provisions of the Act. The Parliament, realising the national need for the rights of the persons with disability and commitment to the Convention of the United Nations General Assembly, repealed the 1995 Act and brought in the Rights of Persons with Disabilities Act, 2016 (for short "the 2016 Act"). The 2016 Act was brought into existence to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto. The Parliament noted that principles taken note of the United Nations General Assembly in its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006 for empowerment of persons with disabilities are :
(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities
32. The fundamental postulate upon which the 2016 RPwD Act is based is the principle of equality and non-discrimination. Section 3 casts an affirmative obligation on the Government to ensure that persons with disabilities enjoy : (i) the right to equality; (ii) a life with dignity; and (iii) respect for their integrity equally with others. Section 3 is an affirmative declaration of the intent of the legislature that the fundamental postulate of equality and non-discrimination is made available to persons with disabilities without constraining it with the notion of a benchmark disability. Section 3 is a statutory recognition of the constitutional rights embodied in Articles 14, 19 and 21 among other provisions of Part III of the Constitution. By recognising a statutory right and entitlement on the part of persons who are disabled, Section 3 seeks to implement and facilitate the fulfillment of the constitutional rights of persons with disabilities. The 2016 RPwD Act recognises that disability results in inequality of access to a range of public and private entitlements. The handicaps which the disabled encounter emerge out of disability's engagement with the barriers created by prejudice, discrimination and societal indifference. Operating as restraining factors, these barriers have origins which can be traced to physical, social, economic and psychological conditions in society. Operating on the pre-existing restraints posed by disability, these barriers to development produce outcomes in which the disabled bear an unequal share of societal burdens. The legislation has recognised that remedies for the barriers encountered by the disabled are to be found in the social environment in which they live, work and cohabit with others. The barriers encountered by every disabled person can be remedied by recognising comprehensive rights as inherent in them; rights which impose duties and obligations on others. (See Vikash Kumar v. UPSC [(2021) 5 SCC 370]. The 2016 Act which is more benefit oriented to the PwD conceives of actualisation of the benefits engrafted under the said Act. Commenting on the vast changes brought about by the New Act, the Apex Court in Justice Sunanda Bhandare Foundation v. Union of India [(2017) 14 SCC 1] had observed as follows :
10. The 2016 Act visualises a sea change and conceives of actualisation of the benefits engrafted under the said Act. The whole grammar of benefit has been changed for the better, and responsibilities of many have been encompassed. In such a situation, it becomes obligatory to scan the anatomy of significant provisions of the Act and see that the same are implemented. The laudable policy inherent within the framework of the legislation should be implemented and not become a distant dream. Immediacy of action is the warrant.
33. It would be appropriate to refer to para 25 of the judgment wherein directions were issued to the State Governments and Union Territories to implement the provisions of the Act in a time bound manner and to file status report. Paragraph No. 25 of the judgment reads thus.
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 realise that under the 2016 Act their responsibilities have grown and they are required to actualise 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 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.
34. In tune with the directions issued by the Apex Court, the Government of Kerala issued G.O.(P) No.18/2018/SJD dated 18.11.2018 and further issued the following directions for immediate implementation.
i) To ensure 3% reservation of the total number of vacancies in the cadre strength in appointments in aided schools and aided colleges including professional colleges to the posts which are identified as suitable for persons with disabilities and issued vide earlier Government Orders with effect from 7.2.1996 and to fill the backlog from 7.2.1996 to 18.4.2017 as per the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 with immediate effect.
ii) To provide 4% reservation of the total number of vacancies in the cadre strength in appointments in aided schools and aided colleges including professional colleges to the 839 posts which are identified / to be identified as suitable for persons with disabilities with effect from 19.04.2017 as per the provisions of Rights of Persons with Disabilities Act 2016.( emphasis supplied) By the above order, the Government has extended the provisions of Section 2(k) of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and Right of Persons with Disabilities Act, 2016 to all educational institutions getting Government aid such as staff salary and other allowances, maintenance grant etc. with effect from 7.2.1996. Directions were also issued to all Authorities of such Aided Institutions to provide 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools and Aided Colleges including Professional Colleges.
35. Following the above order, the Government has issued G.O. (M.S) No.96/2021/HEDN dated 15.2.2021, ordering that the Government order dated 18.11.2018 extracted would be applicable to all appointments made in Private Aided Arts & Science Colleges in the State.
36. The above order was challenged by Corporate Managements before this Court. The issue raised by the Corporate Managements including Minority Educational Institutions was 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. Yet another issue was whether the backlog vacancies envisaged under the 1995 Act should be filled up after 2016 Act came into force.
37. The learned Single Judge (P.V. Asha,J as she then was), after considering the entire conspectus of the statutory provisions and the law laid down by the Apex Court as well as this Court in the judgments rendered till then, held in Renjith v. State of Kerala [(2020 (5) KLT 324] that aided educational institutions 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 was observed that almost all the conditions of service of Government colleges mutatis mutandis would apply to the teachers of aided colleges and schools. It was further held that 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 which are social welfare legislations with intent to integrate the differently abled with the mainstream. This Court went on to hold that minority right or direct payment agreement entered into between the Government also would not stand in the way of implementation of the provisions contained in the Act. Though the appointment under the Act is to be done by the educational agencies, while undertaking such selection the requisite percentage shall be from among the persons with disability. It was held that it is the duty of the managements of aided educational institutions, to see that the differently abled persons are also given appointment under them against the 3%/4% of the vacancies. The contention of the Management that identification under 2016 is yet to be made and reservation or appointments need be made only thereafter was held to be unsustainable. The petitions were disposed of directing the management to conduct the selection and appointment in tune with the Government Order dated 18.11.2018 in implementation of the 1995 Act and Right to Persons with Disability Act, 2016 and to fill up the vacancies as directed in the Government Order. The said judgment was confirmed in Appeal and the same was later confirmed by the Hon'ble Supreme Court.
38. In Balakrishnan v. State of Kerala [2021 (4) KLT 375], the petitioner therein had approached this Court with a Public Interest Litigation to declare that Act 1 of 1996 was applicable to all the educational institutions aided by the Government in the State of Kerala. The Division Bench, after extensively quoting Renjith (supra), held that the judgment covers the entire aspects and issues raised in the Writ Petition. Directions were issued 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.
39. In the light of the principles laid down in the decisions above, it would be obvious that Exhibit P7, P8 or Exhibit P15 notifications issued by the 5th respondent calling for appointment to the posts of Assistant Professor in various subjects in the aided colleges run by them without providing for 3%/4% reservation as mandated by the 1996/2016 Acts and in terms of the repeated declaration issued by the Apex Court as well as this Court can only be termed as an intentional act to frustrate the rights of the PwD's in the matter of their employment to which they were entitled to. The 5th respondent, as a matter of fact, was duty bound to carry out computation of 3%/4% reservation, as the case may be, on the total number of vacancies in cadre strength and not on the basis of vacancies available in identified posts with effect from the coming into force of Act 1 of 1996. It is obvious that scores of disabled persons were prevented from responding to the notification issued by the 5th respondent.
40. The contention of Sri A.N. Rajan Babu that Act 1 of 1996 or Act 49 of 2016 nor Exhibit P6 or subsequent orders passed by the Government is applicable to appointments made in Arts and Science Colleges covered by the agreement executed by the management and Government for direct payment of salary to teachers cannot be sustained under law in view of the law laid down by this Court in Renjith v. State of Kerala [2020 (5) KLT 324], which judgment has been confirmed by the Apex Court. This Court in unequivocal terms had held that minority right or direct payment agreement entered into between the Government would not stand in the way of implementation of the provisions contained in the Act which has been enacted to provide true equality and effective conferment of equal opportunity to PwD. On the other hand, during the pendency of this Writ Petition, in an obvious attempt to save Exhibit P8, the respondent No.5 have produced on record Ext.R5(c) to (f) corrigendum notifications which are said to have been published on 29.12.2021, with a view to add an additional clause to Ext.P15 notification to the effect that 4% vacancies would be reserved for physically challenged candidates. It fails comprehension as to what prompted the 5th respondent to come up with a corrigendum when their assertion in this writ petition is that aided colleges are not obliged to appoint PwD's. The late realisation of the 5th respondent of their obligation to appoint PwD's clearly would reveal that they were always aware of their statutory obligations and were only frustrating the rights of the disabled.
41. Exhibit P8 is dated 1.1.2020 and Exhibit P15 is dated 15.9.2021 and these notifications have been issued much after 18.11.2018 on which date the Government had come out with G.O.(P) No.18/2018/SJD dated 18.11.2018 pursuant to the directions issued by the Apex Court in Justice Sunanda Bhandare Foundation v. Union of India [(2017) 14 SCC 1]. Inspite of the above, the 5th respondent has for reasons best known to them refused to provide for reservation to PwD. Even in the counter affidavit filed on 18.6.2021, the 5th respondent has been raising contentions that they are not bound to provide for reservation to PwD in terms of the provisions of the enabling Acts and the Government orders. All that is mentioned is that the Management had considered the applications of physically disabled persons in the General Category and had granted appointments to two individuals. I also find that pursuant to Exhibit P8 notification, the 5th respondent has proceeded with the selection process and certain candidates were selected in clear violation of the provisions of the Act and the law settled by the decisions above.
42. I find no merit in the contention raised by the learned counsel appearing for the 5th respondent that the petitioner is not entitled to impugn Exhibit P8 notification after having participated in the proceedings as a general candidate. There is no dispute with respect to the fact that the petitioner is a disabled person entitled to reservation under the Act. It is also not admitted that neither in Exhibit P8 nor in Exhibit P15 have the 5th respondent conformed to the statutory mandate or the Government Orders and have earmarked 4% for PwD. Exhibits P8 and P9 being in clear violation of all tenets of law, the act of the 5th respondent in inviting applications can only be regarded as an illegal act perpetrated to deprive PwD of the valuable rights conferred upon them guaranteed by the Statutory provisions and under Article 14 and 15 of the Constitution of India read with Article 41 of the Constitution of India. I am of the considered view that it is high time that strenuous action is taken to ensure that such blatant acts of deprivation of rights of the PwD are not perpetrated by establishments, both Government and Aided. Exhibits P8 and P15 and subsequent notifications issued pursuant to the same cannot, therefore, be sustained and they are liable to be quashed. Furthermore, I have no doubt in my mind that the University of Kerala would not be justified in granting approval to the appointments granted by the 5th respondent when those appointments were clearly in violation to the provisions of law. The University was duty bound to abide by the provisions of the Statute and the directions issued by the Apex Court as well as this Court.
43. In view of the discussion above, this Writ Petition is ordered by issuing the following directions:
(a) Exhibit P8 and P15 notifications issued by the 5th respondent will stand quashed. As Exhibit P8 stands quashed, the prayer sought by the petitioner to appoint her to the vacancy earmarked for PwD candidates in pursuance to Exhibit P8 cannot be granted.
(b) The 5th respondent shall issue fresh notification after earmarking 3%/4% of the vacancies in the post of Assistant Professor in Aided Colleges run by the 5th respondent and affiliated to various Universities in the State of Kerala in terms of the mandate under Act 1 of 1996 and Act 49 of 2016 and strictly in tune with law laid down by the Apex Court as well as this Court and in adherence to the guidelines in G.O.(P) No.18/2018/SJD dated 18.11.2018.
(c) The 5th respondent, while calling for fresh applications as directed above, shall not insist upon the petitioner or the party respondents whose appointments have been quashed to file fresh applications. The applications filed by them in pursuance to Exhibit P8 shall be reckoned as sufficient.
(d) The 5th respondent shall strictly take steps to fill the backlog from 7.2.1996 to 18.4.2017 as per the provisions of Act 1 of 1996 and earmark 4% vacancies for the period thereafter in terms of Act 49 of 2016.
(e) As I have held that the 5th respondent has attempted to intentionally frustrate the rights of disabled persons such as the petitioner by blatantly ignoring the provisions of the relevant statutory enactments, there will be a direction to the 5th respondent to pay a sum of Rs.10,000/- by way of costs to the petitioner, to be paid within a period of three weeks from the date of receipt of a copy of this Judgment.
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RAJA VIJAYARAGHAVAN V, JUDGE PS APPENDIX OF WP(C) 3622/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF THE STANDING DISABILITY ASSESSMENT BOARD CERTIFICATE NO.67/2017 DATED NIL ISSUED BY THE TALUK HEADQUARTERS HOSPITAL, CHIRAYINKEEZHU, THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE PHOTOCOPY OF THE MA DEGREE CERTIFICATE NO.0334709 DATED 12.08.2014 ISSUED BY THE UNIVERSITY OF KERALA TO THE PETITIONER.
EXHIBIT P3 TRUE PHOTOCOPY OF THE MARK LIST OF THE FIRST YEAR M.A. DEGREE EXAMINATION DATED 01.11.2012 HELD IN AUGUST/SEPTEMBER, 2011 OF THE PETITIONER.
EXHIBIT P4 TRUE PHOTOCOPY OF THE MARK LIST DATED 11.03.2014 OF THE PETITIONER AT THE M.A.DEGREE (FINAL) EXAMINATION HELD IN JULY/AUGUST, 2012.
EXHIBIT P5 TRUE PHOTOCOPY OF THE CERTIFICATE OF NATIONAL ELIGIBILITY TEST FOR ASSISTANT PROFESSOR DATED 03.07.2014 ISSUED BY THE UNIVERSITY GRANTS COMMISSION TO THE PETITIONER.
EXHIBIT P6 TRUE PHOTOCOPY OF THE GOVERNMENT ORDER GO(P) NO.61/2012/SWD DATED 17.10.2012.
EXHIBIT P7 TRUE PHOTOCOPY OF THE NOTIFICATION DATED 31.03.2018 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P8 TRUE PHOTOCOPY OF THE NOTIFICATION DATED 01.01.2020 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P9 TRUE PHOTOCOPY OF THE MEMO DATED 10.08.2020 ISSUED BY THE SECRETARY, SREE NARAYANA TRUSTS/MANAGER SREE NARAYANA COLLEGES, KOLLAM TO THE PETITIONER.
EXHIBIT P10 TRUE PHOTOCOPY OF THE EXPERIENCE CERTIFICATE DATED 31.03.2015 ISSUED BY THE PRINCIPAL, SREE NARAYANA COLLEGE, CHEMPAZHANTHY TO THE PETITIONER TO SHOW THAT SHE WAS WORKING AS GUEST LECTURER IN THE DEPARTMENT OF ENGLISH FROM 03.07.2014 TO 31.03.2015.
EXHIBIT P11 TRUE PHOTOCOPY OF THE EXPERIENCE CERTIFICATE DATED 23.07.2018 ISSUED BY THE PRINCIPAL, SREE NARAYANA COLLEGE, CHEMPAZHANTHY CERTIFYING THAT THE PETITIONER HAD WORKED AS GOVERNMENT GUEST LECTURER IN THE DEPARTMENT OF ENGLISH FROM 07.07.2015 TO 31.03.2016.
EXHIBIT P12 TRUE PHOTOCOPY OF THE EXPERIENCE CERTIFICATE DATED 23.07.2018 ISSUED BY THE PRINCIPAL, SREE NARAYANA COLLEGE, CHEMPAZHANTHY TO THE PETITIONER CERTIFYING THAT SHE HAD WORKED AS GOVERNMENT GUEST LECTURER FROM 20.07.2016 TO 31.03.2017.
EXHIBIT P13 TRUE PHOTOCOPY OF THE EXPERIENCE CERTIFICATE DATED 03.04.2019 ISSUED BY THE PRINCIPAL, GOVERNMENT COLLEGE, ATTINGAL CERTIFYING THAT THE PETITIONER HAS WORKED AS GUEST LECTURER IN ENGLISH DEPARTMENT OF THE SAID COLLEGE FOR THE PERIOD FROM 22.10.2018 TO 27.03.2019.
EXHIBIT P14 TRUE PHOTOCOPY OF THE EXPERIENCE CERTIFICATE DATED 23.07.2020 ISSUED BY THE PRINCIPAL (IN CHARGE) OF THE GOVERNMENT COLLEGE, ATTINGAL TO THE PETITIONER CERTIFYING THAT SHE HAD WORKED AS GUEST LECTURER IN ENGLISH DEPARTMENT FOR THE PERIOD FROM 26.06.2019 TO 10.03.2020.
Exhibit P15 TRUE PHOTOCOPY OF THE NOTIFICATION DATED 15.09.2021 NOTIFIED BY THE 5TH RESPONDENT AND PUBLISHED IN KERALA KAUMUDI DAILY Exhibit P16 TRUE COPY OF THE REPLY NO. 0348/RT1-2/2021-22 DATED 03/09/2021 ISSUED BY UNIVERSITY OF KERALA TO ADV. NIHARIKA HEMA RAJ Exhibit P17 TRUE COPY OF THE APPOINTMENT ORDER NO.
2/SNT/850(1) DATED 24/09/2020 ISSUED BY THE SREE NARAYANA TRUSTS TO SMT. APARNA AJTH, ADDITIONAL 6TH RESPONDENT Exhibit P18 TRUE PHOTOCOPY OF THE APPOINTMENT ORDER NO.2/SNT/850(2) DATED 24/09/2020 ISSUED BY THE SREE NARAYANA TRUST TO SMT. NARMA S. PRATHEEP, ADDL. 7TH RESPONDENT HEREIN Exhibit P19 TRUE COPY OF THE APPOINTMENT ORDER NO.
2/SNT/850(3) DATED 24/09/2020 ISSUED BY THE SREE NARAYANA TRUST TO SMT. ASWATHY ANILKUMAR, ADDL.8TH RESPONDENT HEREIN Exhibit P20 TRUE COPY OF THE APPOINTMENT ORDER NO.
2/SNT/850(4) DATED 24/09/2020 ISSUED BY SREE NARAYANA TRUST TO SMT. JYOTHSNA C.R, ADDL. 9TH RESPONDENT HEREIN Exhibit P21 TRUE COPY OF THE APPOINTMENT ORDER NO.
2/SNT/850(5) DATED 24/09/2020 ISSUED BY SREE NARAYANA TRUST TO SMT. REMYA V.R., ADDL. 10TH RESPONDENT HEREIN Exhibit P22 TRUE COPY OF THE APPOINTMENT ORDER NO.
2/SNT/850(6) DATED 24/09/2020 ISSUED BY THE SREE NARAYANA TRUST TO SMT. ARUNA S. AJAYA, ADDL. 10TH RESPONDENT HEREIN RESPONDENT EXHIBITS EXHIBIT R5(a) TRUE COPY OF THE LIST SHOWING THE DETAILS OF ASST. PROFESSORS IN ENGLISH SELECTED AND POSTED IN DIFFERENT COLLEGES UNDER THE 5TH RESPONDENT EXHIBIT R5(b) TRUE COPY OF THE 1 LIST OF NAME OF 17 PHYSICALLY DISABLED APPLICANTS FOR THE APPOINTMENT IN COLLEGES IN DIFFERENT SUBJECTS IN KERALA UNIVERSITY, CALICUT UNIVERSITY AND KANNUR UNIVERSITY EXHIBIT R5(c) TRUE PHOTOCOPY OF THE CORRIGENDUM PUBLISHED IN THE NATIONAL DAILY THE HINDU DATED 29.12.2021 IS PLACED BEFORE THIS HON'BLE COURT EXHIBIT R5(d) TRUE PHOTOCOPY OF THE CORRIGENDUM PUBLISHED IN THE NATIONAL DAILY THE NEW INDIAN EXPRESS DATED 29.12.2021 IS PLACED BEFORE THIS HON'BLE COURT EXHIBIT R5(e) TRUE PHOTOCOPY OF THE CORRIGENDUM PUBLISHED IN THE MALAYALAM DAILY THE MATHRUBHOOMI DATED 29.12.2021 IS PLACED BEFORE THIS HON'BLE COURT EXHIBIT R5(f) TRUE PHOTOCOPY OF THE CORRIGENDUM PUBLISHED IN THE MALAYALAM DAILY THE KERALA KAUMUDI DATED 29.12.2021 IS PLACED BEFORE THIS HON'BLE COURT
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