The petitioner is a physically disabled person, claiming that the extent of her permanent disability is 50% on the basis of assessment under Ext.P1 disability certificate. She made an application for appointment as 'full time contingent menial' in the 6th respondent's school, against a vacancy which arose on 30/11/2013. She submitted Ext.P3 representation before the 5th respondent seeking to issue direction to the 6th respondent to appoint her against the said vacancy. However, ignoring request made by the petitioner, the 6th respondent had appointed another person in the said vacancy. The petitioner had objected approval of the said appointment, before the 5th respondent. Claim of the petitioner is that the respondents 1 to 3 are bound to issue directions to the management of all aided Schools within the State to reserve 3% vacancies in the employments for disabled persons, in view of the specific directions contained in the judgment of the Honourable Supreme Court in Union of India and Another V. National Federation of the Blind and Others. [2013 (10) SCC 772]. In this writ petition the petitioner seeks relief by way of direction to the respondents 1 and 2 to implement the above said judgment of the apex Court in all State Public Sector undertakings /autonomous institutions/Universities/Co-operative Institutions /aided schools and such other bodies with immediate effect. Inter alia, direction is sought for against approval of appointment if any made by the 5th respondent with respect to the vacancy of 'full time contingent menial' arose on 30/11/2013 in 6th respondent's school. 2. In the judgment in National Federation of the Blinds' case (cited supra), among other things, the Hon'ble Supreme Court had issued direction to the “appropriate government” under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation)Act, 1995 (for short the 'Disabilities Act') to compute the number of vacancies available in all the 'establishments' and further to identify the posts for disabled persons, within a period of 3 months and to implement the same without default. The union Government was directed to issue instructions to all the departments/Public sector undertakings/Government Companies declaring that non-observants of the scheme of reservation for persons with disabilities should be considered as an act of non-obedience and the Nodal Officer in the department/Public sector undertakings/ Government companies are responsible for proper and strict implementation of reservation for persons with disabilities.
3. Complaint of the petitioner is basically that the respondents 1 and 2 are not complying with the directions contained in the judgment and is not issuing any appropriate directions to the management of aided schools within the State to reserve postings for physically disabled persons and to compute vacancies available on the basis of such reservation.
4. In a statement filed on behalf of the 3rd respondent it is mentioned that the appointment in aided schools is the prerogative of the Manager in accordance with provisions contained in the Kerala Education Act and Rules and as such the Government cannot issue any direction with respect to the appointments. Further it is contended that 6th respondent's school will not come under the definition of 'establishment' under Section 2(k) of the Disabilities Act, merely because the management is provided with aid from the Government.
5. This court is of the opinion that the view taken by the 3rd respondent cannot be accepted. Aided schools are coming under the direct payment scheme of the Government and the salary of teachers and non teaching staff is paid from the public exchequer. Further, provisions contained in the Kerala Education Act and the Kerala Education Rules provides authority on the Government to put restrictions with respect to functioning of the aided schools. The managements are bound to comply with such directions issued by the Government from time to time, including directions if any with respect to reservation of any posts of teaching or non-teaching staff for any particular category. Hence the contention that appointment in aided school is the absolute prerogative of the management cannot be accepted.
6. Further question to be decided is as to whether the management will come within the definition of 'establishment' defined under Section 2(k) of the Disabilities Act. The Act provides that 'establishment' means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government. The establishment of an aided school is on the basis of provisions contained in the KE Act and KER. Such establishment is totally controlled in its functioning by the Government. Further it is aided by the Government with respect to payment of salary to the teaching and non teaching staff. Hence this court is of the opinion that aided schools within the State will come perfectly within the definition of 'establishment' contained under Section 2(k) of the Disabilities Act.
7. Going by directions contained in the judgment in National Federation of the Blinds' case (supra) it is for the State Government to take necessary steps in compliance with the directions. The State Government has to formulate its policy with respect to issuing necessary directions to the management of aided schools within the State, in this regard.
8. Learned counsel for the petitioner had produced for perusal of this court, a reply received from the Government in this regard obtained under the right to Information Act. It is indicated that Government have issued directions to the heads of all departments, District Collectors, Departments in the Government Secretariat, Public Service Commission, Chief Executives of all Public Sector undertakings and the Advocate General to report vacancies earmarked for disabled persons. But it does not indicate anything to the effect that the Government have taken any decision with respect to appointments in the aided educational institutions.
9. Under the above mentioned circumstances this court is of the opinion that interest of justice will be achieved by issuing direction to respondents 1 and 2 to take appropriate decision in the matter and to take necessary steps for implementation of the directions contained in the decision of the Honourable apex Court, cited above, with respect to all aided educational institutions within the State. Needful steps in this regard shall be taken at the earliest possible, at any rate within a period of three months from the date of receipt of copy of this judgment.
With respect to the challenge against appointment made by the 6th respondent in the vacancy of 'full time contingent menial', which arose on 30/11/2013, it is made clear that the petitioner will be at liberty to pursue remedies if any available under law before the appropriate educational authorities.
Sd/-C.K. ABDUL REHIM JUDGE MJL