The Delhi High Court set aside the rejection of candidature of a successful Delhi Judicial Service candidate who suffered from Bipolar Affective Disorder holding that persons with disability cannot be discriminated against in matter relating to employment.
Division Bench of Justices Vipin Sanghi and Sanjeev Narula has passed the judgment.
Senior Advocates Arvind K. Nigam, Mohit Mathur with Advocates Kawal Nain, Rohit Dadwal, Mehtaab Singh Sandhu, Pratishth Kaushal represented the petitioner.
Advocates Viraj R Datar and Meenal Dugga represented the respondent.
Case Background (Bhavya Nain vs High Court of Delhi)
The Petitioner had Bipolar Affective Disorder (BPAD) to the extent of 45%, and his condition was “currently in remission”. The certificate of AIIMS stated that the condition of the Petitioner was “likely to improve”.
The Petitioner appeared for the Delhi Judicial Service Examination, 2018 which had 2 seats reserved for Persons having autism, intellectual disability, specific learning disability, mental illness etc as mentioned under clauses (a) to (d) of Section 34(1) of the Rights of Persons with Disabilities Act, 2016 (RPwD Act).
After qualifying the Main Examination with 420 marks out of 850 marks, the Petitioner appeared for the interview.
However, when the final results were published, his candidature was rejected on the ground that his disability was not found to be permanent as per the Disability Certificate.
The Petitioner preferred a petition challenging the rejection of his candidature.
The petitioner argued the following,
The authorities concerned/Respondent completely misread the Petitioner’s Disability Certificate and the provisions of the RPwD Act and the Rules framed thereunder.
It was submitted that merely because the Petitioner was in remission, it would not cause him to lose his status as a mentally disabled person as defined under the RPwD Act thereby, disentitling him to his right to claim reservation under the RPwD Act.
The Petitioner claimed that his mental illness was not a “temporary” one i.e. the illness will not get permanently cured at some point of time in the future.
It was further argued that the Disability Certificate issued by AIIMS under Rule 18(3)(ii) was valid for 5 years, and as per Rule 19 of The Rights of Persons with Disabilities Rules, 2017, was actionable in nature.
The Court examined the legal, as well as the medical literature, on Bipolar Affective Disorder to understand the nature of this mental illness and concluded that Bipolar Affective Disorder was a serious lifelong and permanent incurable mental illness that could, at best, be suppressed with medications and treatment, but could not be cured.
“To say that the mental illness that afflicts the petitioner is not permanent in nature would be contrary to the medical literature above referred to. The respondent has not produced any authoritative medical view to the contrary on the nature of the mental illness of BPAD being “temporary”, i.e. of it getting fully and permanently cured during the lifetime of the patient.”, the Court said.
Further observing that the authorities had no basis to assume that the disability would ever fall below 40% simply because it was in remission, the Court remarked,
“The point is that while suffering from the benchmark disability of more than the specified limit, the petitioner has successfully competed with other PwD candidates. He is permanently disabled. He cannot be denied reservation on an assumed basis, as done by the respondent.”
The Court opined that once the posts were advertised – and seats were reserved for, inter alia, persons with mental illness, it was not open to the Respondent to deny reservation to the Petitioner under the RPwD Act, merely on the basis of an opinion that he would not be able to discharge his duties as a Judicial Officer due to his mental illness.
“This is a call that the Parliament has taken. The Law provides reservation, inter alia, to person with the enlisted benchmark disabilities which includes “autism, intellectual disability, specific learning disability and mental illness”. “Mental illness” is explained in paragraph 3 of the Schedule to the RPwD Act .. It appears that the Parliament granted reservation, inter alia, to PwD – who suffer from mental illness (which does not include retardation, as taken note of hereinabove), so that such persons get an opportunity to lead a normal life with encouragement and dignity. Merely because they may need medication and treatment throughout their lives, or may suffer setbacks from time to time, cannot be a reason to deny them equal opportunity to assimilate in the society, make their contribution and have a life of dignity.”
In view of the fact that no exemption was granted by the appropriate Government referable to the proviso to Section 20(1) of the RPwD Act with respect to BPAD, the Court added,
“The respondent, firstly, cannot discriminate against any person with disability in any matter relating to employment. Secondly, it has no competence to take a decision on the issue whether the post of a Judicial Officer should be exempted from the rigor of Section 20(1), having regard to the type of work carried out in the establishment of the judicial service. This decision rests with the appropriate Government.”
The Court thus directed the Respondent to declare the Petitioner as selected to the Delhi Judicial Service without any further delay, since he was the only qualified candidate in the ‘mental illness’ category.
The Petitioner would retain his notional seniority along with his other batchmates and would be deemed to have joined his post along with his other batchmates, though he would not be entitled to any back wages.
Read Judgment here:
