Kerala High Court
Secretary vs Secretary on 4 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
WA.No.1237 OF 2020
AGAINST THE JUDGMENT IN WP(C) 4753/2020(T) OF HIGH COURT OF
KERALA DATED 26/8/2020
APPELLANT/3DRD RESPONDENT:
SECRETARY, NSS COLLEGE CENTRAL COMMITTEE,
NSS HEAD OFFICE, PERUNNAL P.O., CHANGANACHERRY,
KOTTAYAM DISTRICT-686 102.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:
1 RENJITH J.V.
AGED 35 YEARS
S/O.VIJAYAKUMAR.G., NAMPUMADOM, VAYALA P.O.,
ARUKALIKKAL EAST, EZHAMKULAM, PARAKODE,
PATHANAMTHITTA DISTRICT-691 554.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY, SOCIAL WELFARE
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
WA No.1237/2020 & conn.cases
-:2:-
3 THE DIRECTOR, DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
OTHER PRESENT:
R2 & R3 SRI. A.J. VARGHESE-SR. G.P.
R1 BY SRI.K.S.HARIHARAPUTHRAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-
2021, ALONG WITH WA.1238/2020, WA.1239/2020, WA.1242/2020,
WA.131/2021, THE COURT ON 04-02-2021 DELIVERED THE
FOLLOWING:
WA No.1237/2020 & conn.cases
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
WA.No.1238 OF 2020
AGAINST THE JUDGMENT IN WP(C) 2800/2019(Y) OF HIGH COURT
OF KERALA DATED 26/8/2020
APPELLANTS/PETITIONERS:
1 THE SECRETARY
NSS COLLEGE CENTRAL COMMITTEE,
NSS HEAD OFFICE, CHANGANACHERRY,
KOTTAYAM DISTRICT-686 102
2 THE GENERAL MANAGER AND
INSPECTOR OF NSS SCHOOLS
PERUNNA P.O., CHAGANACHERRY,
KOTTAYAM DISTRICT-686 102
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS/RESPONDENTS:
1 THE STATE OF KERALA,
REP. BY CHIEF SECRETARY, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
WA No.1237/2020 & conn.cases
-:4:-
2 SPECIAL SECRETARY
SOCIAL JUSTICE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
BY SRI.A.J.VARGHESE, SR.GOVT.PLEADER
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-
2021, ALONG WITH WA.1237/2020, WA.1239/2020, WA.1242/2020,
WA.131/2021, THE COURT ON 04-02-2021 DELIVERED THE
FOLLOWING:
WA No.1237/2020 & conn.cases
-:5:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
WA.No.1239 OF 2020
AGAINST THE JUDGMENT IN WP(C) 224/2019(C) OF HIGH COURT OF
KERALA DATED 26/8/2020
APPELLANT/4TH RESPONDENT:
THE SECRETARY
NSS COLLEGE CENTRAL COMMITTEE,
NSS HEAD OFFICE,PERUNNAI.P.O,
CHENGANACHERRY,KOTTAYAM DISTRICT-686102.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
SMT.M.BINDUDAS
SRI.K.C.HARISH
RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3:
1 VISHNUPRASAD C.B.
AGED 26 YEARS
VYSHNAVAM,AROOR.P.O, CHERTHALA,
ALAPPUZHA,PIN-688538.
2 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
SOCIAL WELFARE DEPARTMENT,
SECRETARIAT,THIRUVANANTHAPURAM-695001.
WA No.1237/2020 & conn.cases
-:6:-
3 THE DIRECTOR,
DEPARTMENT OF EDUCATION,SECRETARIAT,
THIRUVANANTHAPURAM-695001.
4 GURUVAYUR DEVASWOM,
REPRESENTED BY ITS CHAIRMAN,
GURUVAYUR.P.O, THRISSUR-680101.
R1 BY ADV. SRI.R.K.MURALEEDHARAN
R1 BY ADV. SRI.E.NARAYANAN
SR.GOVT.PLEADER SRI.A.J.VARGHESE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-
2021, ALONG WITH WA.1237/2020, WA.1238/2020, WA.1242/2020,
WA.131/2021, THE COURT ON 04-02-2021 DELIVERED THE
FOLLOWING:
WA No.1237/2020 & conn.cases
-:7:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
WA.No.1242 OF 2020
AGAINST THE JUDGMENT IN WP(C) 1806/2019(A) OF HIGH COURT OF
KERALA DATED 26/8/2020
APPELLANTS/PETITIONERS:
1 THE CONSORTIUM OF CATHOLIC SCHOOL
MANAGEMENT IN KERALA,
REPRESENTED BY ITS CHAIR PERSON, FR.JACOB
GEORGE PALAKKAPPILLY, PASTORAL ORIENTATION
CENTRE (POC), COCHIN-682025.
2 THE CONSORTIUM OF CATHOLIC INSTITUTIONS OF
HIGHER EDUCATION IN KERALA,
REPRESENTED BY ITS CHAIR PERSON, FR.JACOB
GEORGE PALAKKAPPILLY, PASTORAL ORIENTATION
CENTRE (POC), COCHIN-682025.
3 THE MANAGER,
FR.JACOB GEORGE PALAKKAPPILLY, BHARATH MATHA
COLLEGE, THRIKKAKARA P.O., COCHIN-682021.
4 THE CORPORATE MANAGER,
SR. ROSE MARGARET CSST, TERESIAN CARMELITE
SISTERS OF ERNAKULAM, ST.TERESA'S CONVENT
C.G.H.S., COCHIN-682011.
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.THOMAS GEORGE
WA No.1237/2020 & conn.cases
-:8:-
SRI.ALEX GEORGE (CHAMAPPARAYIL)
SRI.TONY GEORGE KANNANTHANAM
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SPECIAL SECRETARY TO
GOVERNMENT, SOCIAL JUSTICE (D) DEPARTMENT,
GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.
2 K.J.VARGHESE,
S/O. K.L.JOSEPH, KOLLAMPARAMBIL HOUSE,
KANGARAPPADY P.O., THRIKKAKARA, PRESIDENT
KERALA FEDERATION OF THE BLIND, VANCHIYUR P.O.,
THIRUVANANTHAPURAM-695035.
3 ALL KERALA PARENTS ASSOCIATION OF HEARING
IMPAIRED (AKPAHI)
REPRESENTED BY GENERAL SECRETARY,
M.MAIDEENKANNU, REG.NO.168/1996, PRASANTH NAGAR
JN., ULLOOR, AKKULAM ROAD, MEDICAL COLLEGE
P.O., THIRUVANANTHAPURAM-695011.
R1 BY SRI.A.J.VARGHESE SR.GOVT.PLEADER
R2 BY ADV. SMT.P.K.NANDINI
R2 BY ADV. SRI.A.P.JAYARAJ (ANJILIKKAL)
R3 BY SRI.ABRAHAM VAKKANAL (SR)
R3 BY ADV.VINEETHA SUSAN THOMAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-
2021, ALONG WITH WA.1237/2020, WA.1238/2020, WA.1239/2020,
WA.131/2021, THE COURT ON 04-02-2021 DELIVERED THE
FOLLOWING:
WA No.1237/2020 & conn.cases
-:9:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942
WA.No.131 OF 2021
AGAINST THE JUDGMENT IN WP(C) 224/2019(C) OF HIGH COURT OF
KERALA DATED 26/8/2020
APPELLANT/3RD RESPONDENT:
GURUVAYUR DEVASWOM,
REPRESENTED BY ITS CHAIRMAN,
GURUVAYUR P.O, PIN- 680 101
BY ADV. SRI.T.K.VIPINDAS
RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 2 & 4:
1 VISHNUPRASAD C.B.
AGED 26 YEARS
VYSHNAVAM, AROOR P.O.,
CHERTHALA, PIN-688 538
2 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, SOCIAL WELFARE
DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
3 THE DIRECTOR
DEPARTMENT OF EDUCATION, SECRETARIAT,
TRIVANANTHAPURAM-695 001
WA No.1237/2020 & conn.cases
-:10:-
4 THE SECRETARY
NSS COLLEGE CENTRAL COMMITTEE,
NSS HEAD OFFICE, PERUNNAI P.O,
CHANGANACHERY, KOTTAYAM DISTRICT -686 102
5 *ADDL.R5 IMPLEADED
UNIVERSITY OF CALICUT,
REPRESENTED BY ITS REGISTRAR,
CALICUT UNIVERSITY P.O,
THENHIPALAM,
MALAPPURAM 673 635
*IS IMPLEADED AS ADDITIONAL 5TH RESPONDENT AS
PER ORDER DATED 28/1/2021 IN IA NO.1/2021 IN WA
NO.131/2021.
R1 BY ADV. SRI.R.K.MURALEEDHARAN
R1 BY ADV. SRI.E.NARAYANAN
R2-3 BY SR GOVERNMENT PLEADER SRI.A.J.VARGHESE
R4 BY SRI.R.T.PRADEEP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-01-
2021, ALONG WITH WA.1237/2020, WA.1238/2020, WA.1239/2020,
WA.1242/2020, THE COURT ON 04-02-2021 DELIVERED THE
FOLLOWING:
WA No.1237/2020 & conn.cases
-:11:-
JUDGMENT
(WA Nos.1237, 1238, 1239, 1242/2020 & 131/2021)
Dated this the 4th day of February, 2021
Shaffique, J.
These appeals have been filed against the common
judgment dated 26/8/2020 in WP(C) Nos. 224, 1806, 2800/2019
and 4753/2020.
2. The Government of Kerala by GO(P)No.18/2018/SJD
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 (hereinafter referred to as the 1995 Act)
WA No.1237/2020 & conn.cases
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
(hereinafter referred to as the 2016 Act). The Consortium of
Catholic School Managements in Kerala filed WP(C) No.
1806/2019 and the NSS Colleges Central Committee filed WP(C)
No. 2800/2019 challenging the Government Order dated
18/11/2018 (hereinafter referred to as Ext.P8), (as referred in
WP(C) No. 1806/2019).
3. Two other writ petitions were filed. A differently abled
person has filed WP(C) No. 4753/2020 seeking for a direction to
the NSS Colleges Central Committee to implement Ext.P8
Government Order. WP(C) No. 224/2019 has been filed by yet
another differently abled person seeking for a direction to
implement Ext.P8 Government Order in the institutions run by
Guruvayoor Devaswom and NSS College.
4. The learned Single Judge after considering the
respective contentions dismissed WP(C) Nos. 1806/2019 and
2800/2019. WP(C) Nos. 224/2019 and 4753/2020 were disposed
of directing the respective managements to conduct the selection
and appointment in tune with Ext.P8 Government Order by
WA No.1237/2020 & conn.cases
implementing the 1995 and 2016 Act.
5. We heard learned Senior counsel Sri.Kurian George
Kannanthanam appearing on behalf of the appellants in WA No.
1242/2020, Sri.R.T.Pradeep, learned counsel appearing on behalf
of the appellants in WA Nos. 1237, 1238 and 1239/2020 and
Sri.T.K.Vipin Das, learned counsel appearing on behalf of the
appellant Guruvayoor Devaswom in WA No. 131/2021. We also
heard Sri.Abraham Vakkanal, Senior Counsel for All Kerala Parents
Association of Hearing Impaired, Sri.A.J.Varghese, Senior
Government Pleader and Smt.P.K.Nandini, learned counsel
appearing on behalf of the 2nd respondent in WA No.1242/2020.
6. The main contention urged on behalf of the
Consortium of Catholic School Managements in Kerala is that
Ext.P8 order cannot be enforced since no posts had been
identified to be filled up in terms of Sections 32 and 33 of the
1995 Act and Sections 33 and 34 of the 2016 Act. It is pointed
out that in Ext.P8 order, the Government while directing backlog
vacancies from 7/2/1996 to be filled up, the posts which are
identified are in terms of Government Orders GO(P)
No.61/2012/SWD dated 17/10/2012, GO(P) No.1/2013/SJD dated
WA No.1237/2020 & conn.cases
3/1/2013, GO(P) No.30/2013/SJD dated 4/4/2013, GO(P)
No.1/2015/SJD dated 5/1/2015 and GO(P) No.18/2017/SJD dated
14/9/2017. These Government Orders have been produced as
Exts.P3 to P7 in WP(C) No. 1806/2019. The contention urged by
the learned counsel is that the posts which had been notified are
relating to Government departments, Government schools and
colleges and do not have any relation to the creation of posts
with reference to aided schools and colleges. It is therefore
argued that unless the posts in such aided schools and colleges
are notified in terms of the statutory provision, incorporating
Exts.P3 to P7 Government Orders will not suffice. It is also argued
based on Section 102 of the 2016 Act that when the 1995 Act has
been repealed, sub-section (2) will not save the Government
Orders Exts.P3 to P7.
7. Sri.R.T.Pradeep, learned counsel appearing for the
appellants especially the NSS Colleges Central Committee argued
that Private Aided Educational Institutions will not come under
the purview of S.34 of the 2016 Act. It is also contended that
S.2(k) of the 1995 Act and 2016 Act cannot be extended by the
Government by an executive order especially when 1995 Act had
WA No.1237/2020 & conn.cases
been repealed. It is the further argument that non minority
educational agencies are protected under Art.19(g) of the
constitution of India. As per the law laid down in T.M.A. Pai
Foundation v. State of Karnataka (AIR 2003 SC 351), such
institutions can be regulated by the Government only with
reference to the terms and conditions of employment of the
teaching staff and non teaching staff and therefore the
Government is precluded from bringing reservation to the
appointment of teaching and non teaching staff. It is argued that
though Clause 5 was inserted in Art.15 of the Constitution of India
to implement reservation in private educational institutions,
Clauses 4 and 5 in Art.15 operates in different fields. Clause 4
permits reservation in the matter of admission in private
educational institutions other than aided or unaided. It is argued
that Art.15(4) is in pari materia with Art.16(4) and unless there is
an enabling provision under Art.16 to implement reservation in
appointment of teaching and non teaching staff in private
educational institutions in pari materia with Art.15(5),
Government cannot bring in reservation for teaching and non
teaching staff in private educational institutions.
WA No.1237/2020 & conn.cases
8. Almost similar arguments were made by the counsel
appearing in WA No. 131/2021. On the other hand, Sri.Abraham
Vakkanal, learned senior counsel submitted that these writ
petitions itself are not maintainable especially in the light of the
judgment of the Apex Court in Justice
Sunanda Bhandare Foundation v. Union of India and
Another [(2017) 14 SCC 1] wherein the Apex Court had occasion
to consider the purport of the 1995 and 2016 Act and had issued
appropriate directions to the respective State Governments to
ensure compliance of the provisions of the 2016 Act within a
specified time. It is submitted that when the Apex Court had
come to notice that most of the State Governments have not
identified the posts or made arrangements to provide reservation
to disabled persons, the Apex Court had while deprecating such
practice in not complying with the statutory provisions issued
necessary directions. Therefore, the contention is that none of the
managements can shirk out of the statutory obligation created
under the Act and the learned Single Judge was justified in
arriving at the impugned finding.
9. Smt.P.K.Nandini, learned counsel while supporting the
WA No.1237/2020 & conn.cases
judgment of the learned Single Judge placed reliance on the
judgment of the Apex Court in Government of India through
Secretary and Another v.Ravi Prakash Gupta [(2010) 7 SCC
626] wherein direction had been given by the Apex Court to
ensure filling up of backlog vacancies which had accumulated
due to delay in identification of posts under S.32 of the 1995 Act.
Counsel argued that the Apex Court is keen to ensure that the
aforesaid Act is implemented in letter and spirit and therefore
several such directions had been issued. It is pointed out that
even if the posts which had been stated by the State Government
initially was made applicable only to Government institutions,
that did not preclude the aided institutions in applying the very
same principle. Once the provisions of the Statute had come into
force, every institution which comes within the parameters of
Government establishment under the Act is bound to comply with
the same. Ext.P8 order came to be passed only when it was
noticed that the aided institutions were not complying with the
statutory provisions. Learned counsel therefore supports the view
taken by the learned Single Judge. Learned Government Pleader
Sri.A.J.Varghese appearing on behalf of the State also supported
WA No.1237/2020 & conn.cases
Ext.P8 order. He also submitted that the Apex Court had issued
several directions in the aforesaid matter. He made reference to
two judgments of the Apex Court in Dalco Engineering Private
Ltd and Others [(2010) 4 SCC 378] and Union of India v.
National Federation of the Blind and Others [(2013) 10 SCC
772]. Another judgment relied upon is that of this Court in which
one of us (myself) had rendered a judgment in Manager L.M.S.
Special Schools, Trivandrum v. State of Kerala (2012 (3)
KHC 163). The said judgment was confirmed by the Division
Bench in Manager LMS Special Schools v. V.M.Omana and
Others (2012 (3) KLT 507).
10. The primary argument which requires to be considered
is whether the provisions of the 1995 Act and 2016 Act will apply
to aided colleges. Under Section 32 of the 1995 Act, it is
incumbent on the part of the appropriate Government to identify
posts in the establishments, which can be reserved for persons
with disability. Definition of S.2(k) "establishment" includes, an
authority or a body owned or controlled or aided by the
Government. Now coming to S.33 of the 2016 Act, here again the
appropriate Government has to identify posts in the
WA No.1237/2020 & conn.cases
establishments which can be held by respective category of
persons with benchmark disabilities in respect of the vacancies
reserved in accordance with the provisions of S.34. As per S.34,
the appropriate Government shall appoint in every Government
establishment, not less than 4% of the total number of vacancies
in the cadre strength. '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)
which includes an authority or a body owned or controlled or
aided by the Government. 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 and therefore they come within the definition of
'establishment' under the 1995 Act and 'Government
establishment' under the 2016 Act. Once the Act applies, they
are bound to comply with the relevant provisions.
11. The contention urged by learned counsel
Sri.R.T.Pradeep is that unless there is an enabling provision under
Art.16 to implement reservation in appointment of teaching and
non teaching staff in private educational institutions, Government
WA No.1237/2020 & conn.cases
lacks power to bring in reservation for teaching and non teaching
staff in private educational institutions, either aided or unaided.
12. In Rajeev Kumar Gupta v. Union of India and
Others [(2016) 13 SCC 153], the Apex Court was considering a
claim made by differently abled person challenging office
memorandum issued by the Department of Personnel and
Training, Government of India, insofar as it deprived the
differently abled persons of the statutory benefit of reservation
under the 1995 Act. One of the contentions urged by the State is
that in the light of the judgment of the Apex Court in Indra
Sawhney v. Union of India [1992Suppl (3) SCC 217], it is
constitutionally impermissible to grant reservation in promotions
for differently abled persons. After a detailed analysis of the law
laid down in Indra Sawhney (supra) and the policy of the State
for providing reservation to persons belonging to any
constitutionally disabled class of persons, it was held at
paragraphs 17 to 22 as under:-
"17. Backward classes contemplated under Article 16(4) are
the socially and educationally backward classes of citizens.
In Devadasan [T. Devadasan v. Union of India, AIR 1964 SC
179] , it was held by this Court that Article 16(4) is an
WA No.1237/2020 & conn.cases
exception to the principle contained in Article 16(1). However,
Subba Rao, J., in his dissent opined that Article 16(4) is not an
exception to Article 16(1) but an emphatic way of expressing
the principle inherent in Article 16(1). This dissenting opinion
later found approval in the majority decision in State of
Kerala v. N.M. Thomas [State of Kerala v. N.M. Thomas, (1976)
2 SCC 310 : 1976 SCC (L&S) 227] . Finally, in Indra
Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC
217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] , a nine-
Judge Bench by majority (speaking through Jeevan Reddy, J.)
confirmed that Article 16(4) is not an exception to the Rule in
Article 16(1) but it is an "instance of (such) classification"
18. The principle is that the State shall not discriminate (which
normally includes preference) on the basis of any one of the
factors mentioned in Article 16(1). Though under the doctrine
of "reasonable classification", it has always been held that the
State can identify classes of people who have distinct
characteristics or disadvantages and treat them separately
under law. Having regard to the history, the social and
demographic context of our nation, the Constitution Framers
thought it appropriate to enable the State under Article 16(4)
to identify citizens for preferential treatment for the purpose of
employment under the State.
19. This Court in Indra Sawhney [Indra Sawhney v. Union of
India, 1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 :
(1992) 22 ATC 385] was dealing with the action of the State in
providing reservation in employment under the State to
various classes of citizens, identified by the State to be
backward classes. The process of such identification and the
nature and extent of reservations that could be provided under
Article 16(4) were the main issues before this Court. It is in this
WA No.1237/2020 & conn.cases
context, this Court held that reservation in the context of
promotions to higher posts under the State are constitutionally
impermissible.
20. To remove the basis of the rule propounded in Indra
Sawhney case [Indra Sawhney v. Union of India, 1992 Supp (3)
SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC 385] ,
Parliament enacted the Constitution (Seventy-seventh
Amendment) Act, 1995. By inserting Article 16(4-A), an
exception is created in favour of citizens belonging to the
Scheduled Castes and the Scheduled Tribes, from the rule laid
down in Indra Sawhney [Indra Sawhney v. Union of India, 1992
Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22 ATC
385]
21. The principle laid down in Indra Sawhney [Indra
Sawhney v. Union of India, 1992 Supp (3) SCC 217 : 1992 SCC
(L&S) Supp 1 : (1992) 22 ATC 385] is applicable only when the
State seeks to give preferential treatment in the matter of
employment under the State to certain classes of citizens
identified to be a backward class. Article 16(4) does not
disable the State from providing differential treatment
(reservations) to other classes of citizens under Article 16(1)
[ As per Indra Sawhney case, 1992 Supp (3) SCC 217, Article
16(4) is a subset of Article 16(1).] if they otherwise deserve
such treatment. However, for creating such preferential
treatment under law, consistent with the mandate of Article
16(1), the State cannot choose any one of the factors such as
caste, religion, etc. mentioned in Article 16(1) as the basis.
The basis for providing reservation for PWD is physical
disability and not any of the criteria forbidden under Article
16(1). Therefore, the rule of no reservation in promotions as
laid down in Indra Sawhney [Indra Sawhney v. Union of India,
WA No.1237/2020 & conn.cases
1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992) 22
ATC 385] has clearly and normatively no application to PWD.
(emphasis supplied)
22. The 1995 Act was enacted to fulfil India's obligations
under the "Proclamation on the Full Participation and Equality
of the People with Disabilities in the Asia and Pacific Region".
The objective behind the 1995 Act is to integrate PWD into the
society and to ensure their economic progress. [See Paras 3, 4
and 5 of the Proclamation of the Full Participation and Equality
of the People with Disabilities in the Asia and Pacific Region.]
The intent is to turn PWD into "agents of their own destiny".
[Id, para 2.] PWD are not and cannot be equated with
backward classes contemplated under Article 16(4). May be,
certain factors are common to both backward classes and PWD
such as social attitudes and historical neglect, etc."
Further on the facts of the case, it was held at paragraphs 23 to
25 as under:-
23. It is disheartening to note that (admittedly) low numbers
of PWD (much below three per cent) are in government
employment long years after the 1995 Act. Barriers to their
entry must, therefore, be scrutinised by rigorous standards
within the legal framework of the 1995 Act.
24. A combined reading of Sections 32 and 33 of the 1995
Act explicates a fine and designed balance between
requirements of administration and the imperative to provide
greater opportunities to PWD. Therefore, as detailed in the
first part of our analysis, the identification exercise under
Section 32 is crucial. Once a post is identified, it means that a
PWD is fully capable of discharging the functions associated
with the identified post. Once found to be so capable,
WA No.1237/2020 & conn.cases
reservation under Section 33 to an extent of not less than
three per cent must follow. Once the post is identified, it must
be reserved for PWD irrespective of the mode of recruitment
adopted by the State for filling up of the said post.
25. In the light of the preceding analysis, we declare the
impugned memoranda as illegal and inconsistent with the
1995 Act. We further direct the Government to extend three
per cent reservation to PWD in all identified posts in Group A
and Group B, irrespective of the mode of filling up of such
posts. This writ petition is accordingly allowed."
An analysis of the aforesaid judgment indicates that the very
purpose of the enactment is authorizing the appropriate
Government to identify the post suitable to be filled up by
differently abled persons which apparently is the policy of the
State. It is the State policy that is reflected under the 1995 Act
and the 2016 Act. Once the posts are identified, there is
obligation cast on all the employers coming within the scheme of
the Act to comply with the same. Though the learned counsel
Sri.R.T.Pradeep had placed reliance on several judgments of the
Apex Court, we do not think it necessary to place much emphasis
on the earlier judgments especially in the light of the law laid
down in Rajeev Kumar Gupta (supra) when it is clearly held
that the basis for providing reservation for differently abled is
WA No.1237/2020 & conn.cases
physical disability and not any criteria forbidden under Art.16(1)
of the Constitution of India and the rule of 'no reservation' in
Indra Sawhney (supra) has no application to differently abled
persons. That apart, no challenge is made to the provisions of the
Act, but to the order of the Government in creating the posts in
schools and other establishments. Such a contention cannot be
justified at all.
13. The only factor to be considered is whether the
provisions of the Act could be made applicable to educational
institutions. As already stated, the meaning of the word
'establishment' or 'government establishment' under both the
enactments takes care of all institutions aided by the
Government. This is further clear from S.39 of the 1995 Act and
S.32 of the 2016 Act, which reads as under:
"39. All educational institutions to reserve seats for persons
with disabilities - 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."
"32. Reservation in higher educational institutions - (1) All
Government institutions of higher education and other higher
education institutions receiving aid from the Government shall
WA No.1237/2020 & conn.cases
reserve not less than five per cent. seats for persons with
benchmark disabilities.
(2) The persons with benchmark disabilities shall be given an
upper age relaxation of five years for admission in institutions of
higher education."
When specific provision is made for reserving seats for differently
abled persons in educational institutions, the same analogy
applies in respect of the teachers or staff to be employed in
educational institutions.
14. A reading of Exts.P3 to P7 would indicate that at all
stages, the Government had considered teachers of educational
institutions for the purpose of providing reservation. Further, on a
bare perusal of judgment in Justice Sunanda Bhandare
Foundation (supra), it is rather clear that the provisions of the
Act had been made applicable to educational institutions. In the
said case, an interlocutory application was filed to issue
directions to the Central Government to comply with the
judgment in Justice Sunanda Bhandare Foundation v. Union
of India [(2014) 14 SCC 383)]. The prayer was to implement the
provisions of the 1995 Act and for a declaration that denial of
employment to visually disabled persons in the faculties and
WA No.1237/2020 & conn.cases
colleges of various Universities in the identified posts is violative
of fundamental rights guaranteed under Articles 14 and 15 r/w
Art.41 of the Constitution of India. After referring to various other
judgments on the point and having found that most of the State
Governments were lagging behind in complying with the
provisions of the Act, the following directions are issued at
paragraphs 24, 25 and 26:-
"24. We have referred to certain provisions only to highlight
that the 2016 Act has been enacted and it has many salient
features. As we find, more rights have been conferred on the
disabled persons and more categories have been added. That
apart, access to justice, free education, role of local authorities,
National fund and the State fund for persons with disabilities
have been created. The 2016 Act is noticeably a sea change in
the perception and requires a march forward look with regard
to the persons with disabilities and the role of the States, local
authorities, educational institutions and the companies. The
statute operates in a broad spectrum and the stress is laid to
protect the rights and provide punishment for their violation.
25. Regard being had to the change in core aspects, we think
it apposite to direct all the States and the Union Territories to
file compliance report keeping in view the provisions of the
2016 Act within twelve weeks hence. The States and the Union
Territories must realise that under the 2016 Act their
responsibilities have grown and they are required to actualise
the purpose of the Act, for there is an accent on many a sphere
with regard to the rights of those with disabilities. When the
WA No.1237/2020 & conn.cases
law is so concerned for the disabled persons and makes
provision, it is the obligation of the law executing authorities to
give effect to the same in quite promptitude. The steps taken
in this regard shall be concretely stated in the compliance
report within the time stipulated. When we are directing the
States, a duty is cast also on the States and its authorities to
see that the statutory provisions that are enshrined and
applicable to the cooperative societies, companies, firms,
associations and establishments, institutions, are scrupulously
followed. The State Governments shall take immediate steps to
comply with the requirements of the 2016 Act and file the
compliance report so that this Court can appreciate the
progress made.
26. The compliance report to be filed by the States shall be
supplied to the learned counsel for the petitioner, the learned
counsel for the Union of India as well as to the learned counsel
for the applicant/intervenor so that they can assist the Court."
Probably it is pursuant to the aforesaid directions that the State
Government had come forward with Ext.P8 order dated
18/11/2018 in order to fill up the backlog vacancies in aided
educational institutions.
15. The next contention urged is that when the posts were
not identified, the posts had already been identified in different
establishments including educational institutions run by the
Government. But the Government did not chose to direct the
aided institutions to comply with the provisions of the Act. In fact,
WA No.1237/2020 & conn.cases
when posts in schools and colleges were notified, it equally
applies to aided institutions as well. But they did not comply with
the provisions of the Act. Ext.P8 is only intended to ensure that
the identification of posts which has already been done under the
provisions of the 1995 Act, would apply to aided educational
institutions as well, and they have been directed to fill up the
backlog vacancies.
We have also perused the judgment of the learned Single
Judge. The entire matter had been considered in detail and for
the reasons stated by us, we do not find any ground to interfere
with the judgment of the learned Single Judge. Appeals are
therefore dismissed.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
GOPINATH P.
Rp JUDGE
