Employers cannot use limiting clauses to deny statutory reservation to persons with disabilities: Kerala High Court

The Kerala High Court recently observed that the benefit of reservation as envisaged under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act of1995 and the Rights of Persons with Disabilities Act of 2016 cannot be taken away by placing limiting clauses [KJ Varghese v State of Kerala and others].Justice Raja Vijayaraghavan V referred to various precedents set by the Supreme Court and reiterated that employment is a key factor in the empowerment and inclusion of people with disabilities."As held by the Apex Court in National Federation of the Blind, employment is a key factor in the empowerment and inclusion of people with disabilities. Disabled people are kept out of jobs because of social and practical barriers that prevent them from joining the workforce....Having considered the issues raised in all perspectives, I am of the considered opinion that the benefit of reservation as envisaged under the 1995 Act/2016 Act has to be extended to persons with disabilities and no stumbling blocks or limiting clauses can be placed by the respondents so as to infringe their statutory and constitutional rights for reservation to posts in aided schools," the Court said in its judgment..The court was considering a batch of petitions which highlighted the "continuous apathy, indifference and passivity" shown by the State government and aided school managers in implementing the provisions of the 1995 and 2016 Acts.The issue related to various government orders with regard to reservations for persons with disabilities in aided institutions, particularly the ones which fixed cut-off dates so that reservations would be provided in vacancies that arise only after such dates.The petitioners contended that fixation of such cut-off dates violated the provisions of the two statutes.It was further contended that the action being taken by the educational authorities under the State government to grant approval to appointments without providing for reservation in the appointment of teachers in the schools, is violative of the fundamental rights guaranteed to them under Articles 14 and 15 read with Article 41 of the Constitution of India.Therefore, the petitioners sought to quash the orders fixing cut-off dates and sought directions to the State government to issue fresh orders to aided schools..The Court, after considering the issues raised, opined that the benefit of reservation as envisaged under the 1995 Act/2016 Act has to be extended to persons with disabilities without placing any stumbling blocks.On going through the various government orders issued over the years in this matter, the Court held that aided schools should provide reservation up to 4 percent of the total number of vacancies in the cadre strength in appointments with effect from April 19, 2017."It is declared that the Managers of Aided Schools are bound by G.O.(P) No.18/2018/SJD dated 18.11.2018, and they shall provide 3% reservation of the total number of vacancies in the cadre strength in appointments in Aided Schools to the posts with effect from 07.02.1996 and to fill the backlog from 07.02.1996 to 18.04.2017; and 4% reservation of the total number of vacancies in the cadre strength in appointments in Aided schools with effect from 19.04.2017 in tune with G.O.(P) No. 5/19/SJD dated 7/05/2019 and the orders referred to therein," the judgment stated..The petitioners were represented by advocates PK Nandini, AP Jayaraj, Jubyraj A , Jishamol Cleetus and Jayashree KP. The respondents were represented by advocates George Abraham, Jiji Thomas, K Mohanakannan, Shameena Salahudeen, TR Jagadeesh, Siji Antony, H Praveen, Smitha Mathew, PS Sajeev, PM Joseph, Manoj George, TB Hood, Augustine Joseph, Muhammed Shafi M, V A Muhammed, KS Rockey, Tony Augustine, George Renoy, M Sajjad and T Rasini..[Read Judgement]