SAMAJAM HIGHER SECONDARY SCHOOL Vs. STATE OF KERALA

JUDGEMENT

(1.) All these writ petitions relate to the various issues regarding the implementation of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as 'the 1995 Act') and the Right of Persons with Disabilities Act, 2016 (hereinafter referred to as 'the 2016 Act') in Aided Schools in the State of Kerala. The writ petitions are hence heard and disposed of by a common judgment.

(2.) The 1995 Act came into force on 7/2/1996. Sec. 33 of the 1995 Act mandates that "every appropriate Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons of which 1% each shall be reserved for persons suffering from (i) Blindness/low vision (ii) Hearing impairment (iii) Locomotor disability or cerebral palsy. Though the Sec. is not happily worded, the clear intention is that not less than 3% of the vacancies in every establishment shall be reserved for persons with disability. As is usual with every such legislation with a large social intent, the implementation of the provisions was decelerated. Twenty-one years later, the Parliament replaced the 1995 Act with the 2016 Act, which came into force on 19/4/2017. Sec. 34 of the 2016 Act, mandated that every appropriate Government shall 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 of which, one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one percent for persons with benchmark disabilities under clauses (d) and (e). Thus, the percentage of reservations was increased, and more categories of disabled persons were included for reservations. "Hearing impairment" was replaced with "deaf and hard of hearing", in the categories of "locomotor disability" the categories of leprosy cured, dwarfism, acid attack victims, and muscular dystrophy have been included and in addition, persons with autism, intellectual disability, specific learning disability, mental illness and persons with multiple disabilities under the abovementioned categories including deaf-blindness have been made eligible for reservation.

(3.) Ss. 33 and 34 of the 2016 Act also deal with the identification of posts for reservation and the reservation of posts. As per the 2016 Act, the appropriate Government is (i) to identify posts in the establishments which can be held by respective category of persons with benchmark disabilities in respect of the vacancies reserved under the provisions of Sec. 34, (ii) to constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts and (iii) to undertake periodic review of the identified posts at an interval not exceeding three years.