Every Institution, Every Govt, Every Authority Try To Circumvent The Provisions of Persons with Disabilities Act

The bench of Justices SK Kaul and Hemant Gupta was considering SLPs arising out of the February 2 judgment of a Division Bench of the Kerala High Court, holding that aided schools and colleges come within the definition of 'establishment' under the 1995 PWD Act and 'Government establishment' under the 2016 PWD Act, and hence, are bound to make reservations for the PWD in the posts identified as suitable, in accordance with the Acts and the pursuant Government Order.

The SLPs were filed by The Consortium of Catholic School Management in Kerala and NSS College Central Committee.

"The words used in both the Acts (in the definition of 'establishment' and 'government establishment') are 'a body owned or controlled or aided by the government'. The term used is 'or'! The intent of the Legislature is seen in both the Acts. If you are so particular about your independence, then don't take money from the government!", said Justice Kaul to Senior Advocate V. Giri, who sought to argue that the petitioner is not owned or controlled by the government.

The Judge added,

"I have been noticing this right from my time at the High Courts that every institution, every government, every authority tries to circumvent the provisions of the Persons with Disabilities Act. There seems to be a social resistance to accommodating the PWD."

"It is my anguish how the institutions in the education system conduct themselves. They don't want to implement the Act?! We will express this in the order! You are educational institutions and you still want government money? The government should stop giving you money! What is the difficulty in accommodating PWD?", continued the judge.

Mr. Giri sought to indicate the difficulty of the petitioners as regards the identification of posts retrospectively from 1996.

[The Government of Kerala by GO dated 18/11/2018 issued instructions to all appointing authorities of aided institutions to ensure 3% and 4% reservation with reference to the total number of vacancies in the cadre strength by making appointments in aided schools and aided colleges including professional colleges to the posts which are identified as suitable for persons with disabilities. By virtue of the aforesaid order, backlog vacancies were directed to be filled up from 7/2/1996 to 18/4/2017 as per the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and 4% of the vacancies in such institutions w.e.f. 19/4/2017 as per the provisions of Rights of Persons with Disabilities Act, 2016]

"Then you should have written a letter to the government, making a representation of your problems, at the relevant time. Even if it is difficult, you will either do it or face consequences. Unless it is thrust down your throat, you will never implement the reservation for the PWD", said Justice Kaul.

When the liberty to approach the government with the difficulty of identifying posts retrospectively was sought, Justice Kaul remarked, "You either withdraw the SLP or our order will be coming with observations"

Ultimately, the bench recorded in its order its "anguish" at the attempt by the institutions which are "aided" to "defeat the provisions of the 1995 and the 2016 Act once again". The bench recorded that it is "an ongoing saga". Stating that the petitioners "have not been able to persuade us", the bench recorded that liberty was sought to approach the state government on the issue of identifying posts retrospectively from 1996. The bench allowed the petitioners the liberty for the said purpose, and dismissed the SLPs as withdrawn.

Proceedings before the High Court

The Consortium of Catholic School Managements in Kerala filed a writ petition before the Kerala High Court and the NSS Colleges Central Committee filed a writ petition challenging the Government Order dated 18/11/2018. Two other writ petitions were filed- A differently abled person sought for a direction to the NSS Colleges Central Committee to implement the Government Order, and yet another differently abled person sought for a direction to implement the Government Order in the institutions run by Guruvayoor Devaswom and NSS College.

The Single Judge had disposed off the writ petitions directing the respective managements to conduct the selection and appointment in tune with Government Order by implementing the 1995 and 2016 Act.

The Division Bench also dismissed the writ appeals arising out of the Single Judge's decision. The bench found that apparently the appellant institutions are aided by the Government insofar as the salary of the teachers and other payments are made by the Government under a direct payment system.

The Division Bench held that aided schools and colleges come within the definition of 'establishment' under the 1995 PWD Act and 'Government establishment' under the 2016 PWD Act.

Section 2(k) of the 1995 Act defines "establishment" as including, an authority or a body owned or controlled or aided by the Government. 'Establishment' is defined u/s 2(i) of the 2016 Act, as including Government establishment and private establishment. 'Government establishment' is defined u/s 2(k) of the 2016 Act which includes an authority or a body owned or controlled or aided by the Government.

The bench further noted S.39 of the 1995 Act, providing that all Government educational institutions and other educational institutions receiving aid from the Government, shall reserve not less than three per cent seats for persons with disabilities, and S.32 of the 2016 Act, stating that all Government institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than five per cent. seats for persons with benchmark disabilities.

The bench found that once the PWD Act applies, the institutions are bound to comply with Section 32 of the 1995 Act, making it incumbent on the appropriate Government to identify posts in the establishments, which can be reserved for persons with disability; Section 33 of the 2016 Act, again requiring the appropriate Government to identify posts in the establishments which can be held by respective category of persons with benchmark disabilities, and Section 34 of the 2016 Act by which the appropriate Government is to appoint in every Government establishment not less than 4% of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities.