Each Establishment, Each Govt, Each Authority Strive To Circumvent The Provisions of Individuals with Disabilities Act
“I’ve noticed since my high courts that every institution, government, agency is trying to circumvent the provisions of the Disabled Persons Act. There seems to be a social resistance to accommodate the PWD ”, observed Justice SK Kaul on Monday.
The judges’ bank SK Kaul and Hemant Gupta examined SLPs resulting from the judgment of a Division Bench of the Kerala High Court on February 2, in which they found that sponsored schools and colleges were under the definition of “settlement” under the PWD Act from 1995 and “government institution” according to the PWD law of 2016 and are therefore obliged to make reservations for the PWD in the bodies identified as suitable in accordance with the laws and the corresponding government ordinance.
The SLPs were submitted by the Consortium of Catholic School Management in Kerala and the Central Committee of NSS College.
“The words used in both statutes (in the definition of ‘body’ and ‘government body’) are ‘a body owned, controlled or supported by the government’. The term used is ‘or’! The intention of the legislature can be seen in both laws. If you’re looking at your independence that closely, then don’t take money from the government! ”Judge Kaul told Senior Advocate V. Giri, who was going to argue that the petitioner is not owned or controlled by the government.
The judge added:
“I’ve noticed since my time at the high courts that every institution, every government, every agency is trying to circumvent the provisions of the Disability Act. There seems to be a social resistance to the concessions of the PWD.”
“It is my agony how the institutions in the education system behave. You don’t want to implement the law ?! We will express this in the order! Are you an educational institution and still want state funds? The government should stop giving you money! What’s the difficulty in accommodating PWD? “The judge continued.
Mr Giri wanted to draw attention to the difficulties the petitioners had in retrospectively identifying posts from 1996 onwards.
[The Government of Kerala by GO 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 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]
“Then in due course you should have written a letter to the government setting out your problems. Even if it is difficult, you will either do it or expect the consequences to implement the reservation for the PWD, “said Judge Kaul.
When an application was made for the freedom to turn to the government with the difficulty of retrospectively identifying items, Judge Kaul remarked, “You are either withdrawing the SLP or our appointment will come with observations.”
Ultimately, in its decision, the bank noted its “fear” about the attempt by the institutions that are “supported” to “once again overcome the provisions of the 1995 and 2016 law”. The bank noted that it was “an ongoing saga”. On the grounds that the petitioners “could not convince us”, the bank stated that efforts were being made to seek freedom to apply to the state government in order to expel jobs retrospectively from 1996 onwards. The bank granted the petitioners freedom for the stated purpose and rejected the SLPs as withdrawn.
Proceedings in the High Court
The Kerala Consortium of Catholic School Managements filed a written petition with the Kerala High Court and the NSS Colleges Central Committee filed a written petition against the government order dated 11/18/2018. Two other written petitions were submitted: one person with a different handicap asked the Central Committee of the NSS Colleges for instructions on how to implement the Government Ordinance, and another person with different skills asked for instructions on how to implement the Government Ordinance in the institutions and NSS led by Guruvayoor Devaswom -College.
The single judge had rejected the written motions instructing the respective management to carry out the selection and appointment in accordance with the government ordinance by implementing the law of 1995 and 2016.
The Bench Division also dismissed the lawsuits resulting from the decision of the single judge. The Bank found that the complaining entities appeared to be supported by the government in that teachers’ salaries and other payments were made by the government under a direct payment system.
The Bench Division was of the opinion that schools and colleges with grants fall under the definition of “facility” under the PWD Act 1995 and “state facility” under the PWD Act 2016.
Section 2 (k) of the 1995 Act defines “establishment” as any agency or body owned, controlled, or assisted by the government. “Operation” is defined in accordance with Section 2 (i) of the 2016 Act and includes government and private entities. “Government entity” is defined as per Section 2 (k) of the 2016 Act which includes an agency or entity owned, controlled, or assisted by the government.
The Bank also noted S.39 of the 1995 Act, which provides that all state educational institutions and other educational institutions that receive government grants must reserve at least three percent of seats for people with disabilities, and S.32 of the Act of 2016, according to which all state colleges and other colleges receiving government grants have withheld at least five percent. Seats for people with disabilities.
The Bank noted that under the PWD Act, institutions are required to comply with Section 32 of the 1995 Act, which makes it incumbent on the competent government to designate posts in the facilities that can be reserved for people with disabilities; Section 33 of the 2016 Act, which in turn obliges the competent government to identify posts in the institutions that can be filled by the respective category of people with benchmark disabilities, and Section 34 of the 2016 Act, according to which the competent government in Each government agency to appoint has no less than 4% of the total number of vacancies in cadre strength in each job group to be filled by individuals with benchmark disabilities.