Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, SOPHY THOMAS, JJ.
Haseeb - Appellant
Versus
Muhammad Sufiyan - Respondent
W.A. No.1445 of 2022 & connected cases
Decided On : 13-03-2023
The judgment deals with the implementation of the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1995 Act) and the Rights of Persons with Disabilities Act, 2016 (2016 Act) in aided educational institutions in the State of Kerala. The main issue before the court was whether the State Government's decision to extend the provisions of the Statutes to aided schools with effect from 07.02.1996 was valid and enforceable. The court held that the decision was valid and enforceable and directed the State Government to implement the provisions of the Statutes in aided schools with effect from 18.11.2018, the date on which the Government issued an order to that effect. The court also directed the State Government to make up the backlog in appointments in the vacancies arising from 18.11.2018. The court further held that the appointments made in aided schools after 18.11.2018 which were not in accordance with the provisions of the Statutes were illegal and could not be approved. However, the court clarified that the teachers who were appointed after 18.11.2018 and whose appointments were not approved could be provisionally approved on condition that such approval would be valid only till the incumbents who are regularly appointed against those vacancies take charge. The court also directed the Managers of all aided schools to fill up the vacancies that arose after 08.11.2021 on a daily wage basis until the directions contained in the judgment are complied with in full.
Fact of the Case:
The case arose from a batch of writ petitions and appeals filed by persons with disabilities, aided school teachers, and the State Government challenging the implementation of the provisions of the 1995 Act and the 2016 Act in aided educational institutions in the State of Kerala. The petitioners in the writ petitions sought directions to the State Government to implement the provisions of the Statutes in aided schools and to make up the backlog in appointments in favour of persons with disabilities. The appellants in the appeals challenged the judgment of the single judge who had directed the State Government to implement the provisions of the Statutes in aided schools with effect from 18.11.2018 and to make up the backlog in appointments.
Finding of the Court:
The court held that the decision of the State Government to extend the provisions of the Statutes to aided schools with effect from 07.02.1996 was valid and enforceable. The court also held that the appointments made in aided schools after 18.11.2018 which were not in accordance with the provisions of the Statutes were illegal and could not be approved. However, the court clarified that the teachers who were appointed after 18.11.2018 and whose appointments were not approved could be provisionally approved on condition that such approval would be valid only till the incumbents who are regularly appointed against those vacancies take charge. The court also directed the Managers of all aided schools to fill up the vacancies that arose after 08.11.2021 on a daily wage basis until the directions contained in the judgment are complied with in full.
Issues: 1. Whether the State Government's decision to extend the provisions of the Statutes to aided schools with effect from 07.02.1996 was valid and enforceable. 2. Whether the appointments made in aided schools after 18.11.2018 which were not in accordance with the provisions of the Statutes were illegal and could not be approved.
Ratio Decidendi: 1. The court held that the decision of the State Government to extend the provisions of the Statutes to aided schools with effect from 07.02.1996 was valid and enforceable. The court relied on the following grounds: (a) The 1995 Act and the 2016 Act are Central legislations enacted by Parliament and are binding on all States and Union Territories. (b) The provisions of the Statutes are mandatory and impose a legal obligation on the State Government to implement them in all establishments, including aided schools. (c) The State Government had already issued an order on 18.11.2018 directing the Managers of aided schools to implement the provisions of the Statutes. 2. The court held that the appointments made in aided schools after 18.11.2018 which were not in accordance with the provisions of the Statutes were illegal and could not be approved. The court relied on the following grounds: (a) The appointments were made in violation of the mandatory provisions of the Statutes. (b) The appointments were made without following the procedure prescribed by the Statutes. (c) The appointments were made without considering the claims of persons with disabilities who were eligible for appointment under the Statutes.
Final Decision: The court disposed of the appeals and writ petitions with the following directions: (1) The Educational Officers in the State shall approve the appointments made in the vacancies earmarked for persons with disabilities that arose after 18.11.2018 and before 08.11.2021, which are otherwise in order, provisionally, treating the vacancies as temporary, on condition that such approval would be valid only till the incumbents who are regularly appointed against those vacancies take charge, and shall take necessary action for disbursement of the pay and allowances due to them. (2) If for any reason regular appointments cannot be made in the vacancies referred to in direction (1) above even after following the detailed procedure prescribed by the Government in Ext.R1(a) order, such vacancies can be treated as substantive and the approvals already granted in respect of the same can be made permanent. (3) Even if regular appointments are made in the vacancies referred to in direction (1), the teacher concerned shall be absorbed against the next immediate vacancy in the same school or in any of the schools under the same management, if they are qualified to be considered for appointment against such vacancies, treating the teachers as claimants under Rule 51A of Chapter XIVA KER. (4) The Managers of all aided schools would be free to fill up the vacancies that arose after 08.11.2021 on daily wage basis until the directions contained in the impugned judgment and this judgment are complied with in full.
JUDGMENT :
P.B. Suresh Kumar, J.
“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”, observed the Apex Court in Union of India v. National Federation of the Blind, (2013) 10 SCC 772, in the context of delay on the part of the authorities in giving effect to the provisions contained in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter referred to as “the 1995 Act”.
The said observation is proven to be correct by the facts of these cases arising from the decision of the State Government to extend the provisions of the 1995 Act and the Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the “2016 Act” which replaced the 1995 Act, to schools receiving aid from the State Government (aided schools). The task of this Court, therefore, is to consider the ways and means to remove the social and practical barriers that prevent people with disabilities from joining the workforce in aided schools. It was also observed by the Apex Court in the said case that in the matter of dealing with cases involving relief to persons with disabilities, the approach of the executive must be liberal and relief oriented, for a little concern to this class can do wonders in their lives, help them stand on their own and not remain at the mercy of others. Let us undertake the task keeping in mind the said observation of the Apex Court.
2. These appeals, except W.A.No.1667 of 2022, arise from the common judgment in three writ petitions namely, W.P.(C) Nos.19808 of 2021, 17632 of 2021 and 11673 of 2022, of which one was instituted by the office bearer of an association seeking general directions for the benefit of persons with disabilities and the other two were instituted by persons with disabilities seeking general as well as personal reliefs. W.A.No.1667 of 2022 is one instituted challenging the judgment in W.P.(C) No.8090 of 2022 instituted by a few persons with disabilities seeking reliefs similar to the reliefs claimed in W.P.(C) No.11673 of 2022 which was disposed of in tune with the common judgment impugned in the remaining appeals. As the questions arising for consideration in all the appeals are one and the same, they are disposed of by this common judgment. Parties and documents are referred to in this judgment, unless otherwise mentioned, as they appear in W.P(C) No.19808 of 2021.
3. On 6.9.2021, having noticed that a large number of proposals received by the Department of General Education for approval of the appointments made in aided schools after 15.07.2021 were not processed, the Director of General Education issued Ext.P4 communication calling upon the educational officers in the State to approve the said appointments on or before 24.09.2021. W.P(C) No.19808 of 2021 was one instituted on 18.09.2021 by one K.J. Varghese styling himself to be the President of an organisation called the Kerala Federation of the Blind, challenging Ext.P4 communication. A direction was also sought in the said writ petition to the State Government to direct the Managers of all aided schools in the State to give effect to the provisions in the 1995 Act and the 2016 Act, hereinafter referred to collectively as “the Statutes” as regards reservation for employment in favour of persons with disabilities in aided educational institutions and also to take immediate steps to effect the backlog in the appointments in the arising vacancies. The case set out by the petitioner in the said writ petition is that even though the State Government has issued Ext.P1 order as early as on 18.11.2018 extending the application of the Statutes to all aided educational institutions in the State with effect from 07.02.1996 and directed the concerned administrative departments to instruct the appointing authorities to ensure compliance
AI
The judgment affirms the mandatory reservation for persons with disabilities in aided schools, emphasizing compliance with legislative provisions and the management's responsibilities.
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.
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 ....
Only in those cases that the Government is of the view that the posts in the promotional cadres cannot be reserved for the PwD category due to functional or other reasons, the same cannot be used as ....
The court ruled that executive orders regarding teacher appointments in aided schools are contrary to the Kerala Education Act and unconstitutional, thus must be quashed.
The court reinforced that unfilled vacancies for physically disabled persons should not obstruct the regularization of qualified appointments in educational institutions.
The judgment emphasizes the statutory provisions and government orders governing age relaxation, grace marks, and reservation for PwDs, and directs the respondents to work out backlog vacancies and p....
The court held that the government may withdraw re-employment provisions for retired teachers according to policy changes, and that no vested rights were violated as re-employment was contingent upon....
The main legal point established in the judgment is that the management must adhere to the rules and regulations for the appointment of staff in private schools, including the obligation to ascertain....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
