Kerala High Court Issues Additional Directions For Efficient Implementation Of Reservation For Differently Abled In Aided School Appointments

The Kerala High Court on Monday modified the order of a single bench that directed the State to give effect to its 2018 decision regarding reservation for employment in favour of persons with disabilities in aided educational institutions and also to take immediate steps to address the backlog in the appointments in the arising vacancies.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas said:

1. The State's Educational Officers must provisionally approve appointments made for vacancies set aside for individuals with disabilities that arose between18.11.2018 and 08.11.2023, as long as the appointments are in order. These vacancies should be treated as temporary, and the approval will only be valid until the incumbents who are regularly appointed take charge. The officers should also ensure that the pay and allowances due to these individuals are disbursed.

2. If, despite following the detailed procedure prescribed by the government, regular appointments cannot be made for the vacancies mentioned in direction (1), the vacancies can be treated as substantive, and the approvals already granted can be made permanent.

3. Even if regular appointments are made for the vacancies mentioned in direction (1), the concerned teacher should be absorbed into the next immediate vacancy in the same school or any school under the same management, provided they are qualified for such appointment. The teachers should be treated as claimants under Rule 51A of Chapter XIVA of the Kerala Education Rules.

4. The Managers of all aided schools can hire individuals on a daily wage basis to fill vacancies that arose after November 8th, 2021, until they fully comply with the directions contained in the judgment of the single bench and the judgment in appeal.

While passing the order the court referred to the decision of the Supreme Court in Union of India v. National Federation of the Blind, (2013) 10 SCC 772 which said that “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”,

The court in this case was dealing with a batch of appeals arising from the decision of the State Government to extend 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 (‘2006 Act’), to aided schools. Referring to the observations in the Union of India v. National Federation of the Blind, (2013) 10 SCC 772, the court said:

“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.”

Single Judge Decision

Even though the State Government had issued an order on 18.11.2018 (Ext. P1) extending the application of the 1995 Act the 2006 Act (‘Statutes’) to all aided educational institutions in the State with effect from 07.02.1996 and directed the respective administrative departments to instruct the appointing authorities to ensure compliance of the provisions of the Statutes and remedy the backlog in the appointments in the vacancies arising from 18.11.2018 onwards, the order was not implemented.

The Single Judge, considering a challenge to Ext.P1 order held that it was obligatory for the State to Government to ensure compliance of Ext.P1 order.

It was accordingly directed that the Managers of Aided Schools would be bound by the Ext P1 Order, and that they ought to provide 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from February 7, 1996, and to fill the backlog from February 7, 1996 to April 18, 2017. It was further directed that 4% reservation shall be provided of the total number of vacancies in the cadre strength in appointments in Aided schools with effect from April 19, 2017.

Subsequently, due to a large number of proposals pending before the Department of General Education for approval of appointments in aided schools after 15.07.2021 which were yet to be given effect to, the Director of General Education issued a communication to educational officers in the State to approve the pending appointments on or before 24.09.2021 (Ext. P4).

On 23.09.2021, the Court stayed Ext.P4 communication, as it was of the view that appointments made after 18.11.2018 were not liable to be approved without implementing the directions contained in Ext.P1 order. However, the Court clarified that the interim order of 23.09.2021 would not preclude the approval of appointments made in posts other than those identified as suitable for appointment of persons with disabilities.

On 08.11.2021, the Government issued an order directing that steps to be taken to make up for the backlog in the appointments in aided schools in terms of the Statues in vacancies that had arisen. As per the said order, the Director of General Education was also directed to ensure compliance of this direction (Ext. P5).

The challenge before the single judge was also against Ext.P4 communication of the Director of General Education and Ext.P5 order of the Government to the extent that it permitted the implementation of the provisions of the Statues in the vacancies that arose after 08.11.2021.

Court in the writ appeal was considering the grievance of teachers and non-teaching staff appointed in aided schools after 18.11.2018 in the vacancies that arose before 8.11.2021.

Division Bench Ruling

In the appeal before the division bench, the counsel for the appellants contended that as the teachers appointed in aided schools in the State after 18.11.2018 were not arrayed as parties to the writ petitions neither personally nor in a representative capacity, the judgment of the single bench had to be set aside.

It was also contented by the Appellants that as per the provisions contained in the Kerala Education Act and the Kerala Education Rules would show that once the appointment is approved it applies back to the date of appointment.

The court observed that the Government had not taken any action to implement its decision to extend the provisions of the Statutes to aided institutions in the State with effect from 07.02.1996 (Ext. P1 order). In fact, the officials in the Department of General Education, contravened Ext.P1 order by approving the appointments made from 18.11.2018, violating the provisions of the Statutes. “It could be seen that there was a conscious decision at the appropriate level of the Government that the provisions of the Statutes need not be implemented”, the court observed.

The court observed that the Government took the decision to implement Ext.P1 order on 18.11.2018, but they failed to ensure compliance of the same.

The court concluded that the contentions of the appellants were not sustainable in law. However, due to the specific facts of the cases, the court issued some additional directions in the interests of justice.

The court observed that since the single bench had directed Ext. P1 order of the State, since the Court had stayed Ext.P4 order, the matters relating to appointment in aided schools had been in chaos.

The court observed that even though after staying Ext. P4 and holding that appointments made after 18.11.2018 were not liable to be approved without implementing the directions contained in Ext.P1 order, it was clarified that it will not prevent approval of the appointments to posts not identified as suitable for persons with disabilities, as most cadres in aided schools are identified as suitable for appointment of persons with disabilities, this did not have the desired effect. It had been decided that the first among the 33 vacancies that arose during the currency of the 1995 Act and the first among the 25 vacancies that arose during the currency of the 2016 Act, would be set aside for persons with disabilities. As at least one vacancy in all cadres must have arisen in every aided school in the State, the clarification of Ext. P4 by the court did not improve the situation.

The court observed from the data presented before it that thousands of teachers appointed after 18.11.2018 had not been paid salary. The court also observed that there were many instances where appointments that could have otherwise been approved, were not approved due to the interim order staying Ext. P4.

The court decided to issue additional directions to the order of the single judge for the following reason

“The academic year 2022- 2023 is going to be over soon. If there are sufficient number of eligible and qualified persons with disabilities in the State to cover the backlog appointments as also the future appointments, there would be no issues while complying with the directions contained in the impugned judgement, but if sufficient number of eligible and qualified persons with disabilities are not available, naturally the vacancies are to be carried forward to the next year and if only eligible and qualified hands are not available in the next year also, the vacancies could be filled up by other candidates. In other words, those vacancies cannot be filled up at least for almost two years. That means, the fate of the teachers who are appointed after 18.11.2018 and whose appointments are not approved till date can be decided only after about two years and till then, they will have to work without salary and the schools will have to be run with them. That apart, there would not be any teachers in the vacancies that arose in the academic year 2022-2023 and in the subsequent academic years, as before deciding the fate of teachers already appointed, cannot be made to the said vacancies. In short, we feel that if we leave these matters without any additional directions, the academic interests of the students would be adversely affected."

Hence, the division bench modified the order to hold that State's Educational Officers must provisionally approve appointments made for vacancies reserved for persons with disabilities that arose between 18.11.2018 and 08.11.2021, as long as the appointments are in order. If regular appointments cannot be made, the vacancies can be treated as substantive, and the approvals already granted can be made permanent. If regular appointments can be made, the teachers appointed should be absorbed into the next immediate vacancy in the same school or any school under the same management as long as they are qualified. Managers of aided schools can also hire individuals on a daily wage basis to fill vacancies that arose after 8.11.2021, until they comply with Ext. P1 order and the directions in the appeal.

Case Title: Haseeb O.P. v. Muhammas Sufiyan & Ors. and other connected matters. 

Citation: 2023 LiveLaw (Ker) 132 

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