IMPORTANT POINT
• Any appointment in aided educational institutions becomes effective only on approval by the Government and therefore, the petitioner institution cannot be left out from the purview of the provisions contained in either of the Acts.
• The right accrued to persons with disabilities under the old Act for appointment under the 1995 Act as well as the liability of the aided Colleges/schools would continue.

JUDGMENT :

The issue arising in these Writ Petitions is whether 3%/4% vacancies in the aided educational institutions in the State of Kerala should be filled up by appointing differently abled persons in accordance with the provisions contained in Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ('the 1995 Act' for short)/Right of Persons with Disability Act, 2016 ('the 2016 Act' for short). Government issued an order on 18.11.2018 extending the provisions of Section 2(k) of the 1995 Act and 2016 Act to all aided educational institutions getting Government aid such as staff salary and other allowances, maintenance grant, etc, with effect from 07.02.1996 and directed that the concerned administrative departments shall instruct all the appointing authorities of such aided institutions to ensure 3% reservation on appointments in aided schools and aided colleges for the period from 7.2.1996 and to provide 4% reservation on appointments in such schools and colleges for the period from 19.4.2017 for the differently abled. The corporate managements have challenged the order. The aspirants for employment eligible for appointment availing the said reservation have sought implementation of that order. Brief facts and contentions in each of the cases are the following.

W.P.(C) No.1806 of 2019

2. According to them the State Government has no authority to extend the provisions contained in the 1995 Act or in the 2016 Act which are central enactments and at any rate to extent the same to the educational institutions run by minorities, as it will be in violation of their right for free choice of qualified teachers guaranteed under Article 30(1) of the Constitution of India. It is their contention that under Section 32 of the 1995 Act, the Government is to identify posts in the establishments, which can be reserved for persons with Disabilities and under Section 33 it is for the Government to appoint physically challenged persons in the establishments and those provisions did not contemplate a private institution or an aided institution to make such appointments; Section 33 cannot be pressed into service except where the appointing authority is the Government. Pointing out that in Exts.P3 to P6 orders issued on 17.10.2012, 04.01.2013 and 04.04.2013, Government has identified the posts in Government schools or Government colleges/Government institutions alone it is stated that applicability of the provisions in the Act to private/aided educational institutions was never in contemplation. It is their further contention that once the 1995 Act stood repealed by Section 102 of the 2016 Act, there is no basis for the direction to fill up 3% vacancies from 07.02.1996. It is stated that Government cannot revive an Act which is superseded by the new Act. It is also pointed out that the provisions in both the Acts are different. According to them, a private aided educational institution is not an authority or a body coming under the definition of 'establishment' as per Section 2(k). Similarly, aided school or college is not included in the definition of 'institution'. At the same time, Section 32 of the 2016 Act contemplates reservation of seats in educational institutions, both Government and aided. Similarly, regarding the reservation and identification of posts also, the expressions used in 1995 Act and 2016 Act are different. When the 1995 Act provides for reservation for persons with disability, the 2016 Act provides for identification and reservation of persons with benchmark disability. Under 2016 Act also it is for the Government to appoint in every Government establishment at least 4% of the vacancies in the cadre strength in each of the posts meant to be filled up with persons of benchmark disability. According to them, even the provisions under Section 34 of the 2016 Act can be implemented and invoked only after the Government identified the posts which can be held by respective categories o