In this case, the petitioners, who suffered from 100% disability approached the Court and pleaded that the government and the educational managers were not implementing the statutory reservation provided in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter ‘1995 Act’) and the Rights of Persons with Disabilities Act, 2016, (hereinafter ‘Disabilities Act')
- The petitioners were five young men who contended that they were qualified to be appointed as Upper Primary School and High School Teachers and also for non-teaching posts of schools aided by the government.
- They had the requisite certificate issued by the Medical board disclosing they were 100% blind.
- The government had issued a notification to educational managers requiring them to fill up the vacancies while applying the provisions of reservation in the 1995 Act and the Disabilities Act.
- However, they set a cut off date of 8.11.2021 for determining the vacancies in which reservation was to be provided.
- Aggrieved by this decision, the petitioners approached the Kerala High Court.
Rights of Persons with Disabilities Act, 2016
- Section 32: Reservation in higher educational institutions.
- Section 33: Identification of posts for reservation.
- Section 34: Reservation
Arguments by the petitioners
- The petitioners contended that the state government as well as the edit schools have shown apathy and indifference in implementing the provisions of the Persons with Disability Act, 2016.
- The petition of contented that by denying them the statutory reservation the education authorities have in infringed Article 14, 15 and 41 of the constitution.
- The petitioners contended that the respondents were obliged to provide 3% reservation to the disabled persons from the period 7.2.1996 to 18.4.2017 and 4% reservation from 19.4.2017 onwards.
- The respondent had fixed a cut off date off 8.11.2021 for providing reservation in the backlog vacancies. The petitioners contended that such a cut off date was arbitrary. They contended that vacancies should determined from 7.2.1996 and not from 8.11.2021.
- Whether statutory reservation can be denied on the basis of limitation clauses?
Arguments by the respondents
- The responsends pleaded that the reservation could not be timely implemented due to the legal hurdles and the pandemic.
- However, the respondent had issued an order to fill the backlog vacancies and provide the statutory reservation.
- They argued that the cut off date has been set at 8.11.2021 and setting a cut off date retrospectively would mean that the teachers who had secured prior appointment would have to be terminated.
- This will affect the academic interest of students and hamper the future of several teachers.
- Furthermore, it was on 8.11.202 that government directed the educational managers to fill vacancies as per the provisions of the Disabilities Act.
- The respondent further contended that the PwD could not be granted reservation because the government had not identified the posts on which they could be accommodated.
- The court observed that the limitation process cannot be used to deny statutory reservation to the disabled persons.
- The Court referred to the case of Union of India v. National Federation of the Blind and pointed that India was a welfare state and was obliged to promote the overall development of its citizens and provide measures to enable the disable persons to live with dignity, equality and freedom.
- The Court then dealt with the issue of the adverse effect on the existing teachers if reservation was provided retrospectively. The Court referred to the case of B. Premanand v. Mohan Koikal and pointed that in the event of a conflict between equity and law, it is the law that would prevail.
- The Court then referred to the various government orders where the posts for PwDs was notified and pointed that the aided schools reviewing salary disbursal from the government had no reason to delay the appointments.
- The Court referred to the case of State of Kerala and Ors. v. Leesamma Joseph where it was held that reservation to disabled persons cannot be denied by not identifying the posts for them.
- The managers of aided schools were directed to provide 3% reservation and fill backlog vacancies 07.02.1996 to 18.04.2017 and 4% reservation from 19.04.2017.
- The appointments made by management after 18.11.2018 where the approval has not been issued could be approved only after filling the vacancies in accordance with the provisions of the 1995 Act and 2016 Act.
The disabled persons suffer largely due to social disability and not due to medical or physical limitations. This case is an example of such social disability where the disabled persons were denied opportunity due to the hurdles created by the society. We must encourage inclusive growth and provide a conducive environment where everyone enjoys equal opportunity.
However, the Court did not consider the interests of the persons already appointed who might be terminated due to the retrospective application of law. Justice to some should not be injustice to others. Those persons were not at fault either and will suffer due to the lackadaisical attitude of the government. It was the government which failed to implement the reservation scheme.
The Court should have balanced the interests of the persons who have already been appointed with the interests of the disabled persons. The Court refused to consider the group of equity pleaded by respondents. However, High Courts are courts of equity and must give due concern to the interests of the affected persons.
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