1. The petitioner is an Assistant teacher in a blind school. She has 26 years of service and is the senior most fully qualified teacher for promotion as Headmaster.

2. By Ext.P1 applications were invited for appointment to the post of Headmaster. The petitioner did not get appointment and the 6th respondent was appointed to the said post. Though the petitioner challenged the matter before the competent authorities, her claim had been rejected finally by Ext.P11 which is under challenge and she also seeks for a direction to promote and appoint her as the Headmistress.

3. The respondent however contended that the petitioner was not eligible to be appointed as the Headmaster as per the qualification criteria prescribed under Note (3) of Clause 1 (A) of Ext.P1, wherein it is indicated that handicapped persons shall not be recruited or promoted as Headmaster of special schools. It is further contended that the respondent institution is a minority institution coming under Article 30(1) of the Constitution and thereby entitled to make appointments overlooking seniority.

4. It is the contention of the petitioner that as per Section 47(2) of 'The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995' (hereinafter referred to as the Act), no person shall be denied promotion on the ground of disability. According to the petitioner, the statutory provision aforementioned would override Note (3) of Clause 1 of Ext.P1 and therefore her promotion as Headmistress has to be considered ignoring Note No.3.

5. The respondents 1 to 4, on the other hand, supported the stand taken by the Management and according to them, in view of Note (3) of Clause 1 of Ext.P1, the petitioner, being a blind person, suffers a handicap and therefore as a Headmaster of the School, it is for the Government/Management to decide regarding the qualification which cannot be dictated by the petitioner. It is further contended that the Act has no application for appointments to be made in pursuance to Ext.P1.

6. Therefore the point to be decided in the case is whether Note (3) of Clause 1 of Ext.P1 can be ignored for the purpose of prescribing qualification criteria of a Headmaster in the light of Section 47(2) of the Act, and or whether Ext.P11 is liable to be interfered for any other reasons.

Section 47 of the Act reads as follows:

47. Non-discrimination in Government employments-

(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerarypost until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability.

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section."

7. On the basis of the above provisions, learned senior counsel Sri.Babu Varghese appearing on behalf of the petitioner contends that since a criteria for promotion as envisaged under Ext.P1 contemplates that incapable persons shall not be recruited or promoted as Headmaster of special schools, the said criteria is totally against Section 47(2) of the Act and it amounts to denial of promotion to the petitioner.

8. On the other hand, it is argued by the learned counsel for the 5th respondent Smt.Molly Jacob that for the Act to be made applicable, certain criteria is to be followed and the Government has not chosen to prescribe the provisions of the Act as applicable t