Point of law : whether reservation is permissible in promotions, explained the difference between reservation under Article 16(4) and reservation under Article 16(1) and held that Article 16(1) does not prevent any preferential/differential treatment to the physically challenged and that what is forbidden is such differential treatment on factors such as caste, religion, etc. and the class of physically disabled is not forbidden.

JUDGMENT :

S.MANIKUMAR, J.

This public interest litigation is filed with a prayer to declare that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is applicable to all the educational institutions aided by the Government in the State of Kerala.

2. Learned counsel for the petitioner submitted that the petitioner's son Vishnuprasad C.V, aged 25 years, is hundred percent blind by birth. He is a holder of M.A(Malayalam) and has UGC with NET & JRM. The Government have passed Exhibit P1 order dated 17.10.2012 granting 3% reservation for physically handicapped persons for getting employment as per their respective qualifications. As per Exhibit P2 decision in W.P.(C)No.3403/2015, reported in 2015 (4) KIT 523, this court held that the benefit of Ext.P1 Government Order is applicable to the institutions coming under the Cochin Devaswom Board. While passing the said Judgment, this court was pleased to observe that the Cochin Devaswom Board cannot at all be said that it is not an "establishment" and is a body corporate controlled by the Government and hence it is an establishment coming under the purview of The Persons with disabilities (Equal Opportunities, protection of Rights and Full Participation) Act, 1995. According to the petitioner, the above said observation of this court made in the above referred decision is equally applicable to all the aided colleges and schools in the State.

Necessary orders have to be passed by the Government for the proper implementation of the above referred Government Order in the said institutions also. The petitioner has preferred Ext.P3 representation requesting for immediate action. Hence this Writ Petition is filed seeking the following reliefs:

“1. To declare that the Exhibit P2 Judgment of this Hon'ble Court is applicable to the various Government aided private educational institutions in Kerala.

1A. To declare that The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 is applicable to all the educational institutions aided by the Government in the State of Kerala,

2. Issue a writ of Mandamus or other appropriate writ, order or direction directing the 1st respondent to dispose of Ext.P3 representation in the light of Ext.P2 Judgment within a time limit prescribed by this Hon'ble Court by affording an opportunity of hearing to the petitioner;

3. To direct the respondent to give cost of this litigation to the petitioner.”

3. Mr. E. Narayanan, learned counsel for the petitioner contended that the Disability Act 1995 provides for a 3% reservation in "identified posts" for people with disabilities in all categories of jobs. The posts were meant to have been identified soon after the Act coming into force and updated every 3 years. The initial identification of posts at the Central Government level was not completed until 2001 and no formal expansion of identified posts has been completed subsequently. In a Public Interest Litigation (PIL) filed in Delhi High Court by a visually impaired lawyer, S.K.Rngta in 2006, against the Government's negligence in implementing the Disability Act, 1995, Delhi High Court held that 3% of the "Total strength" of employees in any Government establishment should be disabled persons. According to learned counsel for the petitioner, the said judgment provides clear clarification to Section 33 of the Disability Act that reservation is against total jobs and not just identified jobs.

4. In support of the prayers sought for in this writ petition, petitioner has, inter alia, raised the following grounds:

“1. There is hardly any information or research on employment of disabled people available in the country. None of the strategy papers/working committees reports on employment address disability employment. Employment is also correlated with many other factors — education