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2022 Supreme(Online)(KER) 26770
HIGH COURT OF KERALA
RAJA VIJAYARAGHAVAN, J
DELEESHA DORA J. – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/25001/2021
RAJESH O.N.N.KRISHNA PRASAD N.ANAND BIJITH S.KHAN, ADVOCATE GENERAL OFFICE KERALA V.A.MUHAMMED M.SAJJAD SMT. ANIMA M., GP
The court reinforced the statutory entitlement of persons with disabilities to employment under affirmative action provisions of relevant disability legislation.
Headnote:
Disability - Employment Rights - Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; Rights of Persons with Disabilities Act, 2016 - Sections 2(r), 3, 34 - The court emphasized the right to appointment for differently-abled individuals under the specified Acts, asserting entitlement based on benchmark disabilities and the need for affirmative action in employment.
Fact of the Case:
The petitioner, a differently-abled individual with a 45% disability, sought employment in schools managed by a corporate educational agency under disability provisions, claiming non-consideration for positions despite her qualifications.
Finding of the Court:
The court found that the petitioner was eligible for appointment under the Rights of Persons with Disabilities Act, supported by government directives ensuring reservations for persons with benchmark disabilities.
Issues: The main issue was whether the petitioner was entitled to be appointed to educational vacancies reserved for persons with disabilities under the applicable laws.
Ratio Decidendi: The ratio established that the provisions of the 2016 Act require affirmative action to appoint individuals with benchmark disabilities in specified roles, and the petitioner met the conditions for such appointment.
Final Decision: The writ petition was allowed, directing the educational agency to appoint the petitioner as a Sweeper in any suitable vacancies.
JUDGMENT “CR”
The petitioner is a differently-abled person and suffers from a mild intellectual disability. Her IQ is 64 and she is stated to be suffering from mental illness and her disability has been assessed as 45%. Despite the setbacks faced by her in her life she has passed Higher Secondary examination (Humanities) in March 2014 as is evident from Ext.P2 certificate. She has approached this Court seeking a declaration that she is entitled to be appointed to any of the suitable vacancies at the schools managed by the 7th respondent Corporate educational agency and for a further direction to appoint her in any of the suitable vacancies.
2. Brief facts are as under:
The petitioner contends that she is a differently-abled person and suffers 50% mental retardation and therefore a person suffering from benchmark disability. By Ext.P3 order dated 18.11.2018, the Government has directed all aided institutions to appoint differently-abled persons in tune with the provisions of the Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 and under the Rights of Persons with Disabilities Act, 2016 . Though the order was challenged before this Court, the challenge was repelled and this Court, by Ext.P4 judgment, held that the provisions of the Act would apply to aided institutions, and directions were issued to fill up the backlog vacancies as well. In tune with the directions issued by this Court, the Government has issued Ext.P5 order identifying 50 posts as suitable for differently-abled persons under the 1995 and the 2016 Act. The petitioner contends that the 7th respondent is managing various educational institutions and when she received information that they are planning to fill up non-teaching posts at the various aided schools, the petitioner submitted an application and she was issued with Ext.P7 call letter to appear for an interview. She contends that the 7th respondent has not appointed even a single differently-abled person since 2016 and no qualified disabled persons having applied for the non-teaching post, the petitioner was liable to be appointed. Though the petitioner had approached the 7th respondent seeking appointment under the Right of Persons with Disability quota, her request was not considered. It is in the afore circumstances that the petitioner is before this Court seeking the following reliefs:
i. Issue a Writ, Order or Direction declaring that Deleesha is entitled to be appointed to any of the suitable vacancies at the schools managed by the 7th respondent educational agency under The Rights of Persons with Disabilities Act.
ii. Issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing the 7th respondent to appoint the Petitioner to any of the suitable vacancies at the schools managed by it under The Right of Persons with Disabilities Act.
3. A counter affidavit has been filed by the additional 8th respondent wherein it is stated that the Government has issued Ext.P3 Government Order providing 4% reservation of the total number of vacancies in the cadre strength in appointments in aided colleges and schools to the posts which are identified for persons with disabilities with effect from 19.04.2017. To the aspect as to whether there is any restriction in employing mentally retarded persons as Full-time Menial and also the formalities to be complied with, it has been stated as follows in para 7 of the counter.
“It was stated in para 8 of the G.O.(P) No.19/2020/SJD, dated
25/08/2020, 4% PWD reservation has been granted in the common category posts identified for PWD category which are stated in para 7, by ensuring the functionality as specified in the Annexure to the said G.O. The common category post of Sweeper (Full time/Part-time)-full time/part-time menial- is identified by the Social Justice Department vide G.O.(P) No.19/2020/SJD dated 25/8/2020 for all differently-abled categories including mental illness and intellectual disability.
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