Delhi High Court
Bhavya Nain vs High Court Of Delhi on 8 May, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 21.10.2019
% Judgment delivered on: 08.05.2020
+ W.P. (C) 5948/2019
BHAVYA NAIN ..... Petitioner
Through: Mr. Arvind K. Nigam and Mr. Mohit
Mathur, Senior Advocates with
Mr.Kawal Nain, Mr. Rohit Dadwal,
Mr. Mehtaab Singh Sandhu and
Mr.Pratishth Kaushal, Advocates.
versus
HIGH COURT OF DELHI ..... Respondent
Through: Mr. Viraj R. Datar, Ms. Meenal
Duggal, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
VIPIN SANGHI, J.
1. The petitioner has preferred the present writ petition to assail the notice/
result dated 21.05.2019 published by the Registrar General, Delhi High Court,
whereby the candidature of the petitioner for Delhi Judicial Services-2018 (in
short, 'DJS 2018') under the category of Persons with Disabilities (PwD) was
rejected on account of his mental disability not being found to be permanent
in nature. For this, the Disability Certificate issued by the All India Institute
of Medical Sciences, Delhi (in short 'AIIMS') has been relied on by the
respondent.
2. Briefly stated that the facts of the present case are as follows:
3. The respondent Delhi High Court issued a public notice on 14.11.2018,
later amended vide Corrigendum dated 19.11.2018, inviting online
applications from eligible candidates for filling up 147 vacancies for DJS-
2018. Out of the said 147 vacancies, 6 seats were reserved for PwD. Out of
these 6 seats, 2 seats were reserved for Persons having autism, intellectual
disability, specific learning disability, mental illness and multiple disabilities
as mentioned under clauses (a) to (d) of Section 34(1) of the Rights of Persons
with Disabilities Act, 2016 (RPwD Act), including deaf-blindness. The
aforesaid Corrigendum reads as follows:
"HIGH COURT OF DELHI: NEW DELHI
DELHI JUDICIAL SERVICE EXAMINATION - 2018
CORRIGENDUM
In continuation of this Court's notice published in various
newspapers on 14.11.2018 whereby 50 vacancies have been
advertised for Delhi Judicial Service Examination-2018, it is
hereby notified that the number of vacancies for Delhi Judicial
Service Examination-2018 may now be read as 147 vacancies
instead of 50 vacancies. Accordingly, the category wise
bifurcation of 147 vacancies shall now be read as under:
Category No. of vacancies
Amendment 1: Out of aforesaid 147 vacancies, the reservation
for Persons with Disabilities shall be as follows:
Category Vacancies
PwD (Autism, intellectual 02
disability, specific learning
disability and mental illness
and Multiple disabilities
mentioned under clauses (a) to
(d) including deaf-blindness)
PwD (Locomotor Disability) 02
Amendment 2: The vacancies for PwD (Hearing Impaired) and
PwD (Autism, intellectual disability, specific learning disability
and mental illness and Multiple disabilities mentioned under
clauses (a) to (d) including deaf-blindness) are subject to
amendment of existing Rules, which is to be notified.
Amendment 3: The revised schedule for commencement of online
filling up of application forms, last date for creating new log in
for online registration and last date for filling online application
form and/or making payment through Debit Card/Internet
Banking would be as under:
Commencement of online filling up 22.11.2018
of Application Forms
Last date for creating New Log In 12.12.2018
for online registration (11:00PM)
Last date for filling Online 12.12.2018
Application Form and/or making (11:00PM)
payment through Debit
Card/Internet Banking
Amendment 4: The revised Date of Preliminary Examination
shall now be 13.01.2019.
Sd/-
(DINESH KUMAR SHARMA)
Registrar General
19.11.2018"
(emphasis supplied)
4. The Delhi High Court issued Instructions annexed with the Admit Card
for the Delhi Judicial Service Examination-2018, the relevant portion whereof
reads as under:
"As per O.M. dated 29.12.2005 issued by Ministry of Personnel,
Public Grievances & Pensions, Department of Personnel &
Training, Government of India, the upper age limit for persons
with disabilities shall be relaxable by 10 years.
x x x x x x x x
12. A candidate, if declared successful in the Main Examination
(Written) must send copies of the following documents duly
attested by a Gazetted Officer to the Joint Registrar (Exams),
High Court of Delhi within 10 days of the declaration of the
result indicating his/her Roll. No. and Application number:-
x x x x x x x x
(6) In case of a candidate claiming reservation/relaxation on
account of being Persons with Disability (Blind/Lower
vision)/(Hearing Impaired)/(Locomotor disability), (Autism,
intellectual disability, specific learning disability and mental
illness and Multiple disabilities mentioned under clauses (a) to
(d) including deaf-blindness), certificate issued by a
Government Hospital/Medical Board in support of his/her
claim. ... ... ..." (emphasis supplied)
5. Accordingly, the petitioner approached the All India Institute of
Medical Sciences (AIIMS), New Delhi where he was examined and the
Disability Certificate for Mental Illness - Bipolar Affective Disorder i.e.
BPAD was issued to him in the prescribed form. The Disability Certificate in
question which was issued on 12.12.2018 is valid for a period of 5 years, i.e.
till 12.12.2023.
6. The petitioner - a law graduate applied for the DJS 2018 under the PwD
category (Autism, intellectual disability, specific learning disability and
mental illness and Multiple disabilities mentioned under clauses (a) to (d) of
Section 34(1) of the RPwD Act, including deaf-blindness) for which two seats
were reserved, as aforesaid.
7. The petitioner cleared the Preliminary Examination under the PwD
category, as per the revised result dated 02.02.2019, wherein he scored 132.50
marks. Thereafter, he appeared for the Main Examinations held on 09.02.2019
and 10.02.2019. Vide Notice/Result dated 30.04.2019, the petitioner cleared
the Main Examination with 420 marks out of 850 marks.
8. As per the Note appended to the Notice dated 30.04.2019, the
candidates who qualified the Delhi Judicial Service Mains Examination were
asked to submit certain documents. The said Note reads as under:
"NOTE:
The qualified candidates are directed to send/submit attested
copies of the following testimonials and original caste/disability
certificate to the Joint Registrar (Exams - DHJS and DJS), Room
No. 602) 6th Floor, Administrative Block, Delhi High Court
within 10 days i.e. by 10.05.2019 during working hours i.e. from
10.00 a.m. to 5.00 p.m.;-
(1) Proof of age (Certificate of Matriculation or other equivalent
examination).
(2) LL.B. Degree or other equivalent law degree.
(3)Certificates, Marksheets and degrees of all courses passed or
attended commencing from Matriculation Examination onwards.
(4) Advocate's license if practising / Proof of enrolment, if
enrolled with Bar.
(5) In case of a candidate who claims to belong to one of the
Scheduled Castes or Scheduled Tribes, certificate from a Sub-
Divisional Officer, Additional District Magistrate, Revenue
Assistant or any other officer, who has been designated by the
State Government concerned as competent to issue such a
certificate.
(6) In case of a candidate claiming reservation/relaxation on
account of being Person with Disability (Blind/Low Vision)/
(Hearing Impaired)/ (Locomotor Disability)/ (Autism,
Intellectual Disability, Specific Learning Disability and Mental
Illness and Multiple Disabilities mentioned under Clauses (a)
to (d)including deaf-blindness). Certificate, issued by a
Government Hospital/Medical Board in support of his/her
claim.
(7) In case of a candidate claiming relaxation in age on account
of his/her being Ex-Serviceman, Emergency Commissioned
Officer or Short Service Commissioned Officer, documentary
evidence in this regard.
(8) A candidate, who claims to belong to Scheduled
Castes/Scheduled Tribes or Person with Disabilities categories,
if declared successful in the Main Examination (Written), must
submit the original caste/ disability certificate to the Joint
Registrar (Exams - DHJS and DJS), Delhi High Court."
(emphasis supplied)
9. The petitioner duly submitted all the documents as well as the Original
Disability Certificate dated 12.12.2018.
10. Vide letter dated 04.05.2019, the petitioner was called upon to appear
for an Interview/Viva-Voce test to be held on 13.05.2019. The petitioner was
interviewed by the Interview Board, comprising of Hon'ble Judges of this
Court and other members.
11. The final results were published vide impugned notice dated
21.05.2019, whereby the candidature of the petitioner was rejected on the
ground that his disability was not found to be permanent as per the Disability
Certificate submitted by him. Accordingly, the petitioner has preferred the
present petition challenging the said notice dated 21.05.2019.
12. The Disability Certificate issued by the Department of Psychiatry,
AIIMS, certified the petitioner of having the disability i.e. Mental Illness -
Bipolar Affective Disorder, i.e., BPAD, to the extent of 45%, and stated that
his condition is "currently in remission". Further, the said certificate states
that the condition of the petitioner is "likely to improve". The relevant extract
of the said Disability Certificate reads as follows:
"Department of Psychiatry
All India Institute of Medical Sciences, Ansari Nagar, New Delhi-110029
Form-IV PHOTO
DISABILITY CERTIFICATE
Certificate No. 133/2018
Date: 12/12/2018
This is to certify that I have carefully examined
Shri/Smt/Kum BHAVYA NAIN son/wife/daughter of Shri KAWAL NAIN Date of Birth
(DD/MM/YY) 16-11-1985 Age 33 years, male/ female MALE Registration No. 104162703,
C-2664/18 Permanent Resident of House No. F-48, GROUND FLOOR Ward/ Village/
Street LAJPAT NAGAR Post Office L. NAGAR, PART-2 District SOUTH DELHI State
DELHI-24 whose photograph is affixed above, and I am satisfied that he/ she is a case of
MENTAL disability.
His/ her extent of percentage disability has been evaluated as per guidelines
(IDEAS - Indian disability Evaluation Assessment Scale and is shown below:
Mental Illness- Diagnosis F31.7(BPAD, currently in Remission)
Mental disability (in%) 45%
The above condition is progressive/ non-progressive/ likely to improve/ non-likely to
improve.
Reassessment of disability is:
Not necessary Or
Is recommended/ after 5 years months, and therefore this certificate shall be valid
till (DD/MM/YY) 12-12-2023
The applicant has submitted the following documents as proof of residence:
Nature of document Date of Issue Details of authority issuing
certificate
NUMBER
AADHAAR CARD 728680040910 GOVT. OF INDIA
Sd/-
(Authorised Signatory of notified Medical Authority)
(Name and Seal)
Sd/-
Signature/ thumb impression
Of person in whose favour
Disability Certificate is issued
Sd/-
Counter Signature Medical Superintendent"
13. The impugned notice/ result dated 21.05.2019 issued by the respondent
rejecting the petitioner's candidature, in so far as it is relevant, is extracted
hereunder:
"Note 1- The candidature of Mr. Bhavya Nain as a Person with
Disability Category has been rejected for the reason that his
disability was not found to be permanent as per the Disability
Certificate."
14. The issue that arises for our consideration is whether the petitioner -
who is certified to have been suffering from the mental illness i.e. BPAD -
which is in remission and is likely to improve, is entitled to the benefit of
Reservation provided to PwD under the RPwD Act.
15. Mr. Arvind Nigam, learned senior counsel appearing on behalf of the
petitioner submits that the stand of the respondent is based on a complete
misreading of the petitioner's Disability Certificate and the provisions of the
RPwD Act and the Rules framed thereunder. The gravamen of Mr. Nigam's
submission is that, while the Disability Certificate states that the petitioner's
mental illness is currently in remission, and that the said condition of the
petitioner is likely to improve, the same does not lead to the conclusion that
the mental illness is a "temporary" one i.e. the illness will get permanently
cured at some point of time in the future. He submits that the mental illness
of the petitioner is permanent i.e. it is lifelong and with treatment and
medication it can be kept under control. He submits that the fact that the
petitioner is currently in remission, would not cause the petitioner 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.
16. Mr. Nigam has referred to the provisions of the RPwD Act. The
definition of a "person with disability" is defined in section 2(s) of the RPwD
Act, which reads as follows:
"2(s). "person with disability" means a person with long term
physical, mental, intellectual or sensory impairment which, in
interaction with barriers, hinders his full and effective
participation in society equally with others;" (Emphasis
supplied)
17. A "person with benchmark disability" is defined in section 2(r) of the
RPwD Act, which reads as follows:
"2.(r). "Person with benchmark disability" means a person with
not less than forty percent of a specified disability where
specified disability has not been defined in measurable terms and
includes a person with disability where specified disability has
been defined in measurable terms, as certified by the certifying
authority;"
18. "Specified disabilities" is defined in section 2(zc) of the RPwD Act as
follows:
"2.(zc)"specified disability" means the disabilities as specified
in the Schedule;"
19. Mr. Nigam draws our attention to the Schedule to the RPwD Act which
covers mental illness as a specified disability. The relevant extract of the same
is reproduced below:
"3. Mental Behaviour.-
"mental illness" means a substantial disorder of thinking,
mood, perception, orientation or memory that grossly impairs
judgment, behaviour, capacity to recognise reality or ability to
meet the ordinary demands of life, but does not include
retardation which is a condition of arrested or incomplete
development of mind of a person, specially characterised by sub
normality of intelligence."
(emphasis supplied)
20. Reservation is provided by Section 34 of the RPwD Act to persons with
benchmark disabilities. The said section reads as follows:
"34. Reservation.- (1) Every appropriate Government shall
appoint in every Government establishment, not less than four
per cent 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 per cent each shall be
reserved for persons with benchmark disabilities under clause
(a), (b) and (c) and one per cent for persons with benchmark
disabilities under clause (d) and (e), namely:-
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including cerebral palsy, leprosy cured,
dwarfism, acid attack victims and muscular dystrophy;
(d) autism, intellectual disability, specific learning disability
and mental illness;
(e) multiple disabilities from amongst persons under clauses (a)
to (d) including deaf-blindness in the posts identified for each
disabilities:
Provided that the reservation in promotion shall be in
accordance with such instructions as are issued by the
appropriate Government from time to time:
Provided further that the appropriate Government, in
consultation with the Chief Commissioner or the State
Commissioner, as the case may be, may, having regard to the
type of work carried out in any Government establishment, by
notification and subject to such conditions, if any, as may be
specified in such notifications exempt any Government
establishment from the provisions of this section.
(2) Where in any recruitment year any vacancy cannot be filled
up due to non-availability of a suitable person with benchmark
disability or for any other sufficient reasons, such vacancy shall
be carried forward in the succeeding recruitment year and if in
the succeeding recruitment year also suitable person with
benchmark disability is not available, it may first be filled by
interchange among the five categories and only when there is no
person with disability available for the post in that year, the
employer shall fill up the vacancy by appointment of a person,
other than a person with disability:
Provided that if the nature of vacancies in an establishment is
such that a given category of person cannot be employed, the
vacancies may be interchanged among the five categories with
the prior approval of the appropriate Government.
(3) The appropriate Government may, by notification, provide
for such relaxation of upper age limit for employment of persons
with benchmark disability, as it thinks fit." (emphasis supplied)
21. Mr. Nigam submits that the petitioner is a person with benchmark
disability, suffering from Bipolar Affective Disorder, which is a long term
mental illness, and in terms of the RPwD Act, the petitioner was issued a
certificate of disability. He refers to Rules 18 and 19 of The Rights of Persons
with Disabilities Rules, 2017 (hereinafter referred to as the "RPwD Rules"),
which deal with the procedure for issue of certificate of disability and reads
as follows:
"18. Issue of certificate of disability.- (1) On receipt of an
application under rule 17, the medical authority or any other
notified competent authority shall, verify the information as
provided by the applicant and shall assess the disability in terms
of the relevant guidelines issued by the Central Government and
after satisfying himself that the applicant is a person with
disability, issue a certificate of disability in his favour in Form
V, VI and VII, as the case may be.
(2) The medical authority shall issue the certificate of disability
within a month from the date of receipt of the application.
(3) The medical authority shall, after due examination -
(i) issue a permanent certificate of disability in cases where
there are no chances of variation of disability over time in the
degree of disability; or
(ii) issue a certificate of disability indicating the period of
validity, in cases where there is any chance of variation over
time in the degree of disability.
(4) If an applicant is found ineligible for issue of certificate of
disability, the medical authority shall convey the reasons to him
in writing under Form VIII within a period of one month from
the date of receipt of the application.
(5) The State Government and Union territory Administration
shall ensure that the certificate of disability is granted on online
platform from such date as may be notified by the Central
Government." (emphasis supplied)
22. Rule 19 reads as follows:
"19. Certificate issued under rule 18 to be generally valid for
all purposes.-A person to whom the certificate issued under rule
18 shall be entitled to apply for facilities, concessions and
benefits admissible for persons with disabilities under schemes
of the Government and of non-Governmental organizations
funded by the Government."
23. Mr. Nigam submits that under Rule 18(3), 2 kinds of certificates are
issued to PwD. Under Rule 18(3)(i), a permanent certificate is issued to
persons where there are no chances of variation of disability over time, i.e.
where there is no scope of improvement in the disability. Under Rule 18(3)(ii),
the certificate is issued in cases where there is a chance of variation in the
disability over time, i.e. the disability of the person may improve, or
deteriorate, over time. The petitioner was issued a disability certificate under
Rule 18(3)(ii), the validity of which is 5 years, and as per Rule 19, his
Disability Certificate is actionable.
24. Mr. Nigam also places reliance on Rule 26 & 27 of the Delhi Rights of
Persons with Disabilities Rules, 2018 (hereinafter referred to as the 'Delhi
RPwD Rules'), which are extracted hereunder:
"26. Issue of certificate of Disability.- (1) On receipt of an
application under rule 24, the medical authority or any other
notified competent authority shall, verify the information as
provided by the applicant and shall assess the disability in terms
of the relevant guidelines issued by the Central Government and
after satisfying itself that the applicant is a person with
disability, issue a certificate of disability in favour of the
applicant in Form V, VI, and VII, as the case may be.
(2) The medical authority shall issue the certificate of disability
within a month from the date of receipt of the application.
(3) The medical authority shall, after due examination,-
(i) issue a permanent certificate of disability in cases
where there are no chances of variation of disability over time
in the degree of disability; or
(ii) issue a certificate of disability indicating the
period of validity, in cases where there is any chance of
variation over time in the degree of disability.
(4) If an applicant is found ineligible for issue of certificate of
disability, the medical authority shall convey the reasons to the
applicant in writing under Form VII within a period of one
month from the date of receipt of the application.
27. Validity of Certificate issued under rule 26,- A person to
whom the certificate is issued under rule 26 shall be entitled to
apply for all facilities, concessions and benefits admissible for
persons with disabilities under schemes of the Government and
of non-Governmental organizations funded by the
Government." (emphasis supplied)
25. It is Mr. Nigam's submission that the petitioner's Disability Certificate
is valid under Rule 18 and 19 of the RPwD Rules read with Rule 26 and 27 of
the Delhi RPwD Rules and despite having a valid Disability Certificate issued
as per the guidelines under the RPwD Act, he has been denied the benefit of
reservation though he is rightfully entitled to it as a person with benchmark
disability (since the disability has been certified as not less than 40%, as it has
been found to be 45%) provided under section 34 of the RPwD Act.
26. Mr. Nigam submits that there is no requirement under section 34 of the
RPwD Act that the Disability Certificate must specify that the mental illness
is permanent in nature, as envisaged under Rule 18(3)(i). The mental illness
of the petitioner cannot be considered to be temporary, or not permanent,
merely because the certificate does not, in terms, say that the mental illness is
permanent. The certificate certifies the Mental Illness of the petitioner at 45%
and is valid for 5 years. There is no reason to assume that the petitioner's
disability will fall below 40% merely because he is in remission. If that were
so, the certificate would not have been valid for 5 years from its issue.
Disability Certificate issued under Rule 18(3)(ii) is also a valid Disability
Certificate for the purpose of grant of reservation provided under section 34
of the RPwD Act. He submits that the Disability Certificate, which was issued
to the petitioner by AIIMS under Rule 18(3)(ii) of the RPwD Rules, does not
specifically mention that the petitioner's disability would completely
disappear at any point in time, or that the mental illness of the patient is
temporary in nature. It does not state that the mental illness will fall below
40% in future. Merely because the Disability Certificate states that the
petitioner's disability is currently in remission and is likely to improve, is not
a ground to deny reservation to the petitioner, since there is no such limitation
prescribed in law.
27. Mr. Nigam submits that no objection was raised regarding the
Disability Certificate when the petitioner submitted the documents with the
respondent as per the notice dated 30.04.2019, and the same were duly
scrutinized by the respondent, on the basis of which the respondent issued him
a letter dated 04.05.2019 inviting the petitioner for an interview on
13.05.2019. He submits that no objection was raised regarding the Disability
Certificate prior to the issuance of the final notice dated 21.05.2019. The same
was raised for the very first time only when the final notice was issued on
21.05.2019. Thus, the objection has been raised as an afterthought.
28. Mr. Nigam has placed reliance on Para 25 of the decision by the
Division Bench of this Court in Ex. Gnr. Naresh Kumar v. Union of India,
W.P.(C) 3828/2010 dated 19.09.2011, wherein the Court observed:
"25.Now, it is extremely difficult to detect a mental disorder
which is not permanent. A bipolar mood disorder or
Schizophrenia does not render a person insane or mad. The
moods fluctuate from time to time and it may happen that at the
time of enrolment the person is in the positive state of mind and
thus the negative phase is not detected."
29. Mr. Nigam lastly submits that the RPwD Act being a beneficial/welfare
legislation enacted to benefit the PwD ought to be given a liberal, purposive
and constructive interpretation in favour of the PwD.
30. When the writ petition was taken up for preliminary hearing on
29.05.2019, this Court passed the following order:
"Issue notice. Mr. Datar accepts notice on behalf of the
respondent.
We have heard Mr. Nigam, learned senior counsel for the
petitioner and Mr. Datar on behalf of the respondent.
Our attention has been drawn to the disability certificate issued
by the All India Institute of Medical Sciences in respect of the
petitioner which certifies the mental disability of the petitioner
as 45%. The mental illness diagnosed in respect of the petitioner
is stated to be BPAD. However, it is noted that the petitioner is
currently in remission. The certificate also recommends that the
above condition is likely to improve. Reassessment of the
disability is recommended after five years. The certificate is valid
till 12.12.2023. The petitioner was declared successful in the
final result of the examination held by the respondent for
recruitment to the Delhi Judicial Services. Though the
petitioner's name is included in the final result of candidates in
order of merit, his candidature has been rejected on the ground
that his disability was not found to be permanent as per the
disability certificate.
Prima facie, we do not consider the said reason to be correct.
Since there is nothing in the certificate to indicate that the
petitioner's disability is not of a permanent nature, merely
because the petitioner is in remission, it does not follow that the
disability would completely disappear at any given point of
time.
Our attention is drawn to Section 2(r) of the Rights of Persons
with Disabilities Act, 2016, which defines persons with bench
mark disability as also to Section 34 and Rules 18 and 19 of the
Rules framed under the said act, namely, the Right of Persons
with Disabilities Act, 2016.
Since we, prima facie, find merit in the case, we direct the
respondent to keep the vacancy against which the petitioner was
initially selected reserved till further orders.
In view of the urgency let the respondent file their counter-
affidavit within 10 days with advance copy to the petitioner.
Rejoinder be filed within 10 days thereafter. The counter-
affidavit and the rejoinder be exchanged between counsels but
the same be filed immediately upon opening of the Registry after
summer vacations. (emphasis supplied)
List for hearing on 15.07.2019."
31. The respondent High Court of Delhi has, accordingly, filed its counter-
affidavit.
32. Mr. Viraj Datar, learned counsel appearing on behalf of the respondent
submits that the benefit of reservation under the RPwD Act cannot be
extended to the petitioner, because his mental illness - as per the Disability
Certificate, is not permanent or long-term in nature. The same has been
assessed at 45%, but he is under remission and his condition is likely to
improve. If it falls under 40%, the petitioner would not be entitled to the
benefit of reservation under Section 34 of the RPwD Act.
33. Mr. Datar submits that the petitioner's mental disability is currently in
remission and is likely to improve, which implies that his mental illness is not
permanent or long-term in nature. In the meeting held on 13.05.2019, the
petitioner's candidature was considered by the Selection Committee of DJS-
2018 which observed as follows:
"Considering that the disability of Mr. Nain is not permanent,
the Committee is of the view that he cannot be granted the benefit
of relaxed standards admissible to candidates belonging to
Persons with Disability category. The Committee, therefore,
recommends that the candidature of Mr. Bhavya Nain, as a
candidate belonging to Persons with Disability category, may be
rejected."
34. Mr. Datar submits that the petitioner is not a "person with disability",
as defined in Section 2(s), since the mental impairment with which the
petitioner suffers cannot be categorised as "long term". Since the petitioner
cannot be categorised as "a person with disability", he is not "a person with
benchmark disability", as defined in Section 2(r), which is a sub-species of a
person with disability.
35. Mr. Datar urges that in case the petitioner is allowed to avail of the
reservation under Section 34 of the RPwD Act, sometime after his
appointment, he would cease to be covered by the provisions of the RPwD
Act since his mental disability/ impairment is only temporary in nature, or
will fall below 40%. He also submits that in case the petitioner is allowed to
avail of the reservation granted to candidates suffering from benchmark
disability, it would deprive a deserving person, genuinely suffering with
benchmark disability under the provisions of the RPwD Act, of getting
appointed. Such appointment will defeat the purpose of the RPwD Act.
36. Mr. Datar vehemently argues that in case the benefits of relaxed
standards and reservation under the RPwD Act are granted to persons with
temporary disability, it is likely to lead to an anomalous situation, where
persons who might have suffered locomotor injuries in accidents - resulting
in temporary disability for a year or two, and whose condition improves
subsequently, would also be entitled to the benefit of relaxation and
reservation, thus depriving genuine candidates suffering from permanent/
long-term benchmark disabilities of the intended reservation. He also submits
that such an interpretation would be in contradiction to the letter and spirit of
the RPwD Act, and it is neither the intent, nor the purpose of the RPwD Act
to grant benefits on the basis of a temporary disability, which is likely to
improve.
37. Mr. Datar submits that the petitioner's documents were not scrutinized
before he was called for an interview. The documents of all the candidates
were checked, only to ensure that all the requisite documents as mentioned in
the Advertisement Notice were submitted. The documents of all the
candidates were scrutinized and verified only on the day of the interview,
when the petitioner's Disability Certificate was scrutinized and it was found
by the Selection Committee that the petitioner's disability was not permanent
in nature. Thus, there is no merit in his submission that the rejection of his
candidature is an afterthought.
38. Mr. Datar places reliance on a Division Bench decision of Punjab &
Haryana Court in Harneet Kaur v. Baba Farid University of Health Science,
BFUHS, Faridkot, CWP No. 19074/2017 decided on 13.9.2018, wherein the
Court held that the RPwD Act cannot be extended to persons afflicted with
temporary disabilities and has to be restricted to persons with permanent
disabilities only. In this case, the petitioner was suffering from 40% disability
which was temporary in nature. The relevant extract of the judgment relied
upon by Mr. Datar is as under:
"Rule 18 talks of issuance of a certificate of disability. The
relevant portion of this rule is extracted here below :-
"18. Issue of certificate of disability.- ... ... ... ... ... ...
(3) The medical authority shall, after due examination - -
(i) issue a permanent certificate of disability in cases where there
are no chances of variation of disability over time in the degree
of disability ; or
(ii) issue a certificate of disability indicating the period of
validity, in cases where there is any chance of variation over time
in the degree of disability."
This is the limited argument raised before us in this regard.
When we examine the provisions of the 2016 Act and Rule 18 of
2017 Rules rules defining a person with disability, it categorises
persons afflicted with disability under three separate headings.
(1) Clause (i) talks of a person with benchmark disability to
mean a person with not less than forty percent of a specified
disability if the specified disability has not been defined in
measurable terms and also includes a person with disability
where specified disability has been defined in measurable terms,
as certified by the certifying authority.
(2) Clause (ii) talks of persons with disability to mean a person
with long term physical, mental, intellectual or sensory
impairment which, in interaction with barriers, hinders his full
and effective participation in society equally with others.
(3) Lastly, Clause (iii) talks of a person with disability having
high support needs means a person with benchmark disability
certified under clause (a) of sub-section (2) of section 58 who
needs high support.
Similarly, Section 58 of the 1995 Act talks of a specified
disability. Evidently, the object of both the Acts is to enable
effective participation of a person with disability in society
equally with others not only by providing him a preference in
matters of admission, employment, but also to enable him to
more avenues in employment so that he can lead a dignified life
independent of societal support driven by sympathy.
The classification as noticed above, clearly centers around a
permanent disability, the weight of which an individual has to
carry through his entire life. It does not talk of disability which
is a temporary affliction and liable to dissipate or be reduced
either with the passage of time or with appropriate treatment.
The reason is too apparent as such a person with temporary
disability carries neither weight, nor stigma which a person
with permanent disability carries. When the provision of the
Act is read with the afore-extracted Rule 18(3)(i) & (ii), it
becomes abundantly clear that certificate of disability means a
certificate of permanent disability. For the very same reason
1995 Act also has to be held to be referring to a permanent
disability.
Learned counsel for the petitioner has made much about the
aforeextracted Rule 18(3)(i), (ii) to contend that the word
'permanent disability' does not find mention therein.
We are of the opinion that in view of the categoric provision of
the Act, three categories of persons with disability have been set
out which suggest a long term disability. There is no escape from
such a conclusion of the Act with the Rules too prescribing a
preferential opening for those with permanent disability alone.
The language of Rule 18(3)(i) is defective and we would read it
to mean that the medical authority shall after due examination,
issue a certificate of permanent disability. The word permanent
disability occurring in clause (i) is to qualify the disability and
not the certificate. It is for this reason that in continuation it
notes that "where there are no chances of variation or disability
over time in the degree of disability". Similarly, clause (ii) states
issuance of a certificate of disability indicating the period of
validity where there is any chance of variation over time in
degree of the disability. Clause (ii), therefore, also talks of a
permanent disability, but with chances of variation and
reduction in degree.
The certificate issued by the PGIMER authorities indicates
percentage of disability as forty percent of the body with nature
of disability as temporary.
In this view of the matter, the respondent's stand cannot be
faulted with. The petition in this regard has, therefore, to be
rejected." (emphasis supplied)
39. Mr. Datar has also placed reliance on a Division Bench decision of this
Court in 'Jadhav Vishwas Haridas v. Union Public Service Commission &
Ors., LPA 222/2013 decided on 27.10.2016, relevant extract whereof is as
follows:
"21. By Section 2(q) "Mental illness" is defined as "any mental
disorder other than mental retardation". Though not
illuminating, the clear demarcation between mental retardation
on the one hand and mental disorder (not amounting to
retardation) is to a certain extent helpful. Oxford English
dictionary defines mental disorder as "A condition which causes
serious disorder in a person's behaviour or thinking"
(https://en.oxforddictionaries.com/definition/mental_illness
accessed at 17:50 hrs, 14 October, 2016). The Mental Health Act
defines a "mentally ill" person as one "who is in need of
treatment by person of any mental disorder other than mental
retardation". Now, there are two paradoxes at work here - the
first is that those with mental illness are altogether excluded
from consideration for any employment under the Section 33
reservation; two, and importantly, that mental disorders are of
varied severity and extent. Even mental illness can differ
significantly as to use of a person's skills acquired during one's
life time. For instance, severe depression or disorders such as
schizophrenia could seem as complete barriers to jobs.
However, the severity of those conditions may vary, as well as
their extent: they may be temporary and entirely brought under
control. To club all these with the severest form of mental illness
or disorder may be unjustified. The irony here is that someone
with a fairly low degree of illness (say to the extent of 25% or
35%) would not fall within the definition of "person with
disability" whereas one with a greater degree of disability (say
90% and total) may not be able to work at all, given the nature
of illness. This is where the appellant's grievance has to be
addressed. The "one size fits all" assumption that one with
disability should have at least 40% of that condition may be
justified and work well for person with vision or hearing
impairment or locomotor disability. However, applying that
matrix to person with mental disability could eliminate him or
her altogether from consideration (whereas one who may
technically be a person with disability, may be excluded
altogether because of its very nature and its hindrance to normal
discharge of public employment functions). Yet again, there is
the legislative mandate of carrying post identification exercise
once in three years, having regard to advancement in
technology. Now this mandate is useful not only in relation to
availability of devices and tools such as hearing aids, etc (to
enable hitherto unemployable persons with hearing disability for
jobs which might now be conveniently performed by them) but
also in relation to the kinds of medication and medical
breakthrough resulting in ailments and conditions becoming
amenable to treatment and control. If this mandate were to be
given its logical effect, yet, the threshold of 40% disability might
prove to be an additional barrier for those with mental illness or
disorder.
x x x x x x x x
27. It is the opinion of this Court that a blanket 40% disability
test to provide reservations in employment may be
impracticable. A particular disability suffered by an individual
might require specific aid and comes with specific restrictions.
An individual suffering from a visual disability could avail
specific benefits in terms of reservations in employment, as his
mental condition is normal. Such an individual might be
suffering from a disability of over 40% on the IDEA scale but his
employability may not be affected. On the other hand, a different
individual suffering from another disability of above 40% on the
IDEA scale might not be employable for certain positions as his
mental condition could be adversely affected. Hence it is the
opinion of this Court that in a country where 26,810,557
individuals suffer from different disabilities, a one size fit all
model might not be the most efficient. That 40% on the IDEA
scale makes individuals more or less employable cannot be held
ideal. The legislature may consider to create a model where
individuals suffering from different disabilities may be
recognized and given benefits in terms of education,
employment, health etc. which are suitable to their individual
condition. The benchmarking through the IDEA scale may have
to vary depending on different disabilities. However, this
remains within the legislative domain and since there is a move
to amend the Act, the court - in accordance with well settled
principles on this subject cannot direct the enactment of
legislation.
28. This court, therefore, concludes that there is some deficiency
in the existing law, i.e the PWD Act, both with respect to
providing reservations as well as the classification of all persons
with disabilities as one having at least 40% of any specified or
enumerated condition, which can well be the reason for ultimate
discrimination. Whilst it is within executive domain to categorize
which post can be suitable for what kind of person or persons
with disability, the absolute minimum threshold of 40% in the
case of certain kinds of disabilities could be the barrier -
unwitting though the case may be, and eliminate from the post
identification exercise persons with such disabilities altogether.
This clearly has a discriminatory result, and an indirect
discriminatory effect. Having arrived at this conclusion, the
court is conscious that neither is this result capable of judicial
redress (as that would involve the court judicially enacting law,
by reading words into the statute an entirely unwarranted
intrusion into Parliamentary power) nor can existing law be
suitably read down or severed. Furthermore, and more
fundamentally, this court does not have empirical data or
scientific medical expertise in the matter and would have to
hazard conclusions based on some materials which it might
source, or intuitively guess. Whatever be the manner of exercise
of power, such assumption of quasi-executive and legislative
power can prove to be a remedy worse than the disease."
(emphasis supplied)
40. We have considered the rival submissions of learned counsels in the
light of the facts of the case. It is necessary for us to, firstly, examine the legal,
as well as the medical literature on mental illness - Bipolar Affective
Disorder, i.e., BPAD to understand the nature of this mental illness.
41. In Pankaj Mahajan v. Kajal, (2011) 12 SCC 1, the Supreme Court had
occasion to consider the nature of the said illness, i.e. BPAD in the context of
a claim for divorce on the ground of the wife being incurably of unsound
mind, and on the ground of cruelty. The Supreme Court observed:
"12. Dr. Paramjit Singh (PW 1), Professor and Head, Psychiatry
Department, Medical College, Amritsar in his evidence stated as
follows:
"The respondent remained admitted in my
department at Amritsar from 17-12-2001 to 28-12-
2001. This disease is bipolar affective disorder. I
treated her during this period. She was admitted in
emergency because her disease was in quite a
serious stage. In this disease, the patient can
commit suicide. When she came, she was
aggressive and irritable. If the proper treatment is
not given to the respondent then her aggressive
nature can be prolonged. The respondent Kajal
was treated by me by giving electric shock for four
times during her stay in the ward MRI i.e. magnetic
resonance imaging. MRI has got no concern with
the disease with which the respondent was
suffering. This disease is treatable but not
curable..... ... ... ..." (emphasis supplied)
13. ... ... ...
14. Dr. Ravinder Mohan Sharma (PW2), Senior Medical
Officer, Punjab Mental Hospital, Amritsar, stated as under:
"............As per the history recorded in File No.
58803, there is a mention of suicide ideas and
threats and it is recorded that she had attempted
suicide once. As per the record, hers is a history of
abusive and irritable behaviour. On 16-1-2002 she
was advised injection by me because she was
irritable and restless. It is not a simple yes or no
answer to the question whether the disease is
curable or not. It is an episodic illness in which the
patient is getting episodes of mental illness and
with treatment in between she can remain normal.
The intensity and frequency of these episodes is
highly unpredictable and varies from patient to
patient. Generally, the frequency increases with
every episode. The disease of the respondent is
treatable but cannot be definitely said to be
curable. MRI has got nothing to do with this disease
of the respondent." (emphasis supplied)
x x x x x x x x x
25. From the materials placed on record, we are satisfied that
the appellant husband has brought cogent materials on record
to show that the respondent wife is suffering from mental
disorder i.e. schizophrenia. From the side of the appellant
husband, various doctors and other witnesses were examined to
prove that the respondent wife was suffering from mental
disorder. We have already extensively quoted the statements of
Dr. Paramjit Singh (PW 1), Dr. Ravinder Mohan Sharma (PW
2), Dr. Virendra Mohan (PW 3) and Dr. Gurpreet Inder Singh
Miglani (PW 7)--all the four doctors/psychiatrists who treated
the respondent wife, prescribed medicines and also expressed
the view that it is "incurable". Even the respondent wife and her
father themselves admitted in their cross-examination that the
respondent had taken treatment from the said doctors for mental
illness. Thus, it is proved beyond doubt that the respondent wife
is suffering from mental disorder/schizophrenia and it is not
reasonably expected to live with her and the appellant husband
has made out a case for a decree of divorce and the decree
should have been granted in favour of the appellant husband and
against the respondent wife." (emphasis supplied)
42. Thus, the Court accepted the position that BPAD was a lifelong/
permanent and incurable mental illness, premised on statements and
evidences led by medical doctors.
43. In an article titled Long-Term Treatment in Bipolar Disorder authored
by Alan C. Swann, M.D. published in The Journal of Clinical Psychiatry, J
Clin Psychiatry 2005; 66 (suppl 1), the learned Author observes:
"COURSE OF ILLNESS AND NECESSITY FOR
MAINTENANCE TREATMENTS
Bipolar disorder is a lifelong illness with a heterogeneous
course... ... ...Untreated patients are 2.5 times more likely to die
in the next 12 months than the individuals of the same sex and
age without bipolar disorder. This substantial mortality, from
suicide and medical causes, is reduced by effective treatment...
... ...
EVIDENCE FOR EFFECTIVE MAINTENANCE
TREATMENTS
... ... ... In nearly all published trials, most patients suffer relapse
within 1 or 2 years even if given the active treatment in a positive
trial, and a substantial minority of subjects who are randomly
assigned to receive placebo do not suffer relapse... ... ..."
(emphasis supplied)
44. In another article titled The Bipolar Spectrum by Jules Angst,
published in British Journal of Psychiatry, (2007),190, 189-191. Doi:
10.1192/bjp.bp.106.030957, the learned author states:
"...Over decades of recurrent depressive illness, bipolar
disorder may manifest at any time: a lifelong follow-up of
patients hospitalised showed a persistent risk of diagnostic
change to bipolar disorder of 1.25% per year of observation.
Bipolar affective disorder is a more severe disorder than major
depression, as measured by higher lifelong recurrence and
greater comorbidity with psychiatric disorders, especially
anxiety and secondary substance use disorders... ... ..."
(emphasis supplied)
45. An abstract from the article titled Bipolar Disorder: an update
authored by Barkur S. Shastry published in Neurochemistry International
Volume 46, Issue 4, March 2005, Pages 273-279,the learned author states:
"Bipolar disorder (BPD) is one of the most severe forms of
mental illness and is characterized by swinging moods. It affects
both sexes equally in all age groups and its worldwide
prevalence is approximately 3-5%. The clinical course of illness
can vary from a mild depression to a severe form of mania. The
condition has a high rate of recurrence and if untreated, it has
an approximately 15% risk of death by suicide. It is the third
leading cause of death among people aged 15-24 years and is a
burden on society and families. The pathophysiology of the
disorder is poorly understood. However, a variety of imaging
studies suggests the involvement of structural abnormalities in
the amygdala, basal ganglia and prefrontal cortex. There are
two main biological models that have been proposed for
depression. These are called the serotonin and norepinephrine
hypotheses. Multiple lines of evidence support both of them. It is
a life-long disease and runs in families but has a complex mode
of inheritance. Family, twin and adoption studies suggest
genetic factors but the candidate susceptibility genes, which
when mutated can account for a substantial portion of BPD
patients, have not yet been conclusively identified. There have
been an increasing number of new generation antidepressant
drugs developed to treat BPD. However, lithium salt is only the
drug that is most efficient in long-term preventive treatment and
it also has an anti-suicidal effect. The condition can be well
managed by physicians and psychiatrists along with family and
patient education. Identification of risk genes in the future may
provide a better understanding of the nature of pathogenesis that
may lead to a better therapeutic target." (emphasis supplied)
46. In an article titled "Diagnosis and Treatment of Bipolar Disorders in
Adults: A Review of the Evidence on Pharmacologic Treatments penned by
Michael W. Jann published in Am Health Drug Benefits. 2014 Dec; 7(9):
489-499, the learned author states:
"Background
Patients with bipolar disorder are exceptionally challenging to
manage because of the dynamic, chronic and fluctuating nature
of their disease. Typically, the symptoms of bipolar disorder
first appear in adolescence or early adulthood, and are
repeated over the patient's lifetime, expressed as unpredictable
recurrences of hypomanic/manic or depressive episodes. The
lifetime prevalence of bipolar disorder in adults is reported to be
approximately 4%......."
x x x x x x x x x x
Conclusion
Bipolar disorder is a chronic, relapsing illness characterized by
recurrent episodes of manic or depressive symptoms, with
intervening periods that are relatively (but not fully) symptom-
free. Onset occurs usually in adolescence or in early adulthood,
although onset later in life is also possible. Bipolar disorder has
a lifelong impact on patients' overall health status, quality of
life and functioning... ... ..." (emphasis supplied)
47. The National Institute of Mental Health, which comes under the
United States Department of Health and Human Services, is the largest
research organization in the world, specializing in mental illness and states in
its Publication No. NIH Publication 19-MH-8088, that bipolar disorder is a
lifelong illness, which has also been observed by the Division Bench of the
Himachal Pradesh High Court in Jeevan Rana v. State of Himachal Pradesh,
2015 Cri LJ 4619. The relevant extract from the publication is reproduced
below:
"What is bipolar disorder?
Bipolar disorder is a chronic or episodic (which means
occurring occasionally and at irregular intervals) mental
disorder. It can cause unusual, often extreme and fluctuating
changes in mood, energy, activity, and concentration or focus.
Bipolar disorder sometimes is called manic-depressive disorder
or manic depression, which are older terms.
x x x x x x x x x
Most of the time, bipolar disorder develops or starts during late
adolescence (teen years) or early adulthood. Occasionally,
bipolar symptoms can appear in children. Although the
symptoms come and go, bipolar disorder usually requires
lifetimes treatment and does not go away on is own. Bipolar
disorder can be an important factor in suicide, job loss, and
family discord, but proper treatment leads to better outcomes.
x x x x x x x x x
Coping With Bipolar Disorder
Living with bipolar disorder can be challenging, but there are
ways to help make it easier for yourself, a friend, or a loved one.
• Get treatment and stick with it--recovery takes time and
it's not easy. But treatment is the best way to start feeling
better.
• Keep medical and therapy appointments, and talk with the
provider about treatment options.
• Take all medicines as directed.
• Structure activities: keep a routine for eating and
sleeping, and make sure to get enough sleep and exercise.
• Learn to recognize your mood swings.
• Ask for help when trying to stick with your treatment.
• Be patient; improvement takes time. Social support helps.
Remember, bipolar disorder is a lifelong illness, but long-term,
ongoing treatment can help control symptoms and enable you
to live a healthy life... ... ..." (emphasis supplied)
48. We may refer to the judgment of Himachal Pradesh High Court in
Jeevan Rana (supra), wherein the Division Bench observed that Bipolar
Disorder is a lifelong ailment. The relevant extract from this decision relied
upon by the petitioner reads as follows:
"25. The nature and symptom of the mis bipolar disease were
described by the Hon'ble High Court of Karnataka in Nalini
Kumari v. K.S. Bopaiah2007 (1) KarLJ 342. The Court has
observed as under:
"19. Now let us discuss what is mis Bipolar disease
and whether it is curable/controllable and treatable
disease?
20. In National Institute of Mental Health
Publication No. 3679, it is stated:
Introduction:
Bipolar disorder, also known as manic-depressive
illness, is a brain disorder that causes unusual
shifts in a person's mood, energy, and ability to
function. Different from the normal ups and downs
that everyone goes through, the symptoms of
bipolar disorder are severe. They can result in
damaged relationships, poor job or school
performance, and even suicide. But bipolar
disorder can be treated, and people with this illness
can lead full and productive lives.
x x x x x x x
People with bipolar disorder can lead healthy and
productive lives when the illness is effectively
treated (see below - "How is Bipolar Disorder
Treated"). Without treatment, however, the
natural course of bipolar disorder tends to worsen.
Over time a person may suffer more frequent (more
rapid-cycling) and more severe manic and
depressive episodes than those experienced when
the illness first appeared. But in most cases, proper
treatment can help reduce the frequency and
severity of episodes and can help people with
bipolar disorder maintain good quality of life.
21. In Health & Medical Information in Psychiatry
(Australia's Central Health & Medical Information
Resource), it is stated:
Bipolar Affective Disorder (BPAD) is a
psychological disease.
This condition is characterised by alternating
syndromes of depression and mania. Depression is
a psychiatric syndrome characterised by a
subjective feeling of depression, loss of enjoyment
in all activities and overwhelming feelings of guilt
and worthlessness.
Mania represents the opposite end of the spectrum
characterised by erratic and disinhibiter,
behaviour, poor tolerance or frustration, over-
extension of responsibility and vegetative signs.
These include raised libido, weight loss with
anorexia, decreased need for sleep and excessive
energy.
x x x x x x x
Prognosis:
The average duration of a manic episode is 3-6
months with 95% making a full recovery in time.
Recurrence is the rule is bipolar disorders, with up
to 90% relapsing within 10 years. In terms of
overall prognosis, 15% completely recover from the
illness. 50-60% partially recover and one third will
retain chronic symptoms resulting in social and
occupational dysfunction.
x x x x x x x
Treatment Overview:
The primary treatment for BPAD involves long-
term daily medications. The most commonly used
drug in the initial management of BPAD is lithium.
The drug takes about 2 weeks to take effect and is
effective in stabilising the patient's mood. Other
drugs such as valproate and tegretol are more
commonly used in the long term to help prevent the
recurrence of mania and depression in patients with
BPAD. They may also be combined with lithium for
greater effect, if one agent proves inadequate to
control the symptoms.
x x x x x x x
22. In Wikipedia, the free encyclopedia, it is stated:
Bipolar disorder (previously known as Manic
Depression) is a psychiatric diagnostic category
describing a class of mood disorders in which the
person experiences clinical depression and/or
mania, hypomania, and/or mixed stated. The
disorder can cause great distress among those
afflicted and those living with them. Bipolar
disorder can be a disabling condition, with a
higher-than-average risk of death through
suicide.
The difference between bipolar disorder and
unipoloar disorder (also called major depression)
is that bipolar disorder involves both elevated and
depressive mood states. The duration and intensity
of mood states varies widely among people with the
illness. Fluctuating from one mood state to the next
is called "cycling". Mood swings can cause
impairment or improved functioning depending on
their direction (up or down) and severity (mild to
severe). There can be change in one's energy level,
sleep pattern, activity level, social rhythms and
cognitive functioning. Some people may have
difficulty functioning during these times.
Domains of the bipolar spectrum:
Bipolar disorder is often a life-long condition that
must be carefully managed. Because there is so
much variation in severity and nature of mood
problems, it is increasingly being called bipolar
spectrum disorder. The spectrum concept refers to
subtypes of bipolar disorder or a continuant of
mood problems, that can include sub-syndromal
(below the symptom threshold for categorical
diagnosis) symptoms......
x x x x x x x
Treatment:
Currently, bipolar disorder cannot be cured,
though psychiatrists and psychologists believe that
it can be managed.
The emphasis of treatment is on effective
management of the long-term course of the illness,
which usually involves treatment of emergent
symptoms. Treatment methods include
pharmacological and psychotherapeutic
techniques. Leading bipolar specialist, Gillian
Townley, has researched the effect of the Ferret
Rabbit process.
Prognosis and the goals of long-term treatment:
A good prognosis results from good treatment
which, in turn, results, from an accurate diagnosis.
Because bipolar disorder continues to have a high
rate of both under-diagnosis and misdiagnosis, it is
often difficult for individuals with the illness to
receive timely and competent treatment.
Bipolar disorder is a severely disabling medical
condition. In fact, it is the 6thleading cause of
disability in the world, according to the World
Health Organization. However, with appropriate
treatment, many individuals with bipolar disorder
can live full and satisfying lives. Persons with
bipolar disorder are likely to have periods of
normal or near normal functioning between
episodes........
.......The goals of long-term optimal treatment are
to help the individual achieve the highest level of
functioning while avoiding lapse."
49. The aforementioned medical literature and articles, as also the decision
of the Supreme Court in Pankaj Mahajan (supra) and that of the Himachal
Pradesh High Court in Jeevan Rana (supra) lead us to conclude that Bipolar
Affective Disorder (BPAD) is a serious lifelong and permanent incurable
mental illness that can, at best, be suppressed with medications and treatment,
but cannot be cured. There is a high rate of recurrence. People who suffer
from Bipolar Disorder can live a healthy life, albeit they will have to take
treatment all their lives. The petitioner has been suffering from Bipolar
Affective Disorder since 2010, and on a perusal of the petitioner's
prescriptions, we also observe that the petitioner has been under treatment
since 2010. 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.
Moreover, the certificate certifies the extent of mental illness/ disability at
45% and the certificate is valid for 5 years. Therefore, as per medical
opinions, the extent of disability of the petitioner - who is under remission, is
not likely to fall below 40% in the period of 5 years for which the certificate
is valid. The respondents have no basis to assume that the disability would
ever fall below 40% just because it is in remission and the petitioner's
condition is likely to improve. 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.
50. From the counter affidavit filed by the respondent, it appears that the
true reason why the respondent has rejected the petitioner's candidature is not
that his mental illness is not of permanent nature, or that it may fall below
40%, but because the respondent is of the opinion that the medical condition
of BPAD renders the petitioner incapable of rendering service as a Judicial
Officer. In paragraphs 7 and 8 of the counter-affidavit, the respondent states:
"7. That, without prejudice, it is pertinent to note that,
ultimately, the Petitioner is seeking appointment in the Delhi
Judicial Service on the basis of claiming status as a 'Person with
Disability'. That in the event that the aforesaid Petition is
allowed, the Petitioner is likely to be appointed as a Judge in the
Delhi Judicial Service. However, admittedly, the said post
carries with it great and multiple responsibilities, including a
severely stressful work-life and environment.
8. That, without prejudice, it cannot be lost sight of that, as
a consequence of the disability of Bipolar Affective Disorder
(BPAD), even despite treatment with established methods and
medication, a patient suffers from inability of think clearly,
lack of attention and focus, memory problems etc. That further,
the stress arising from the appointment being sought by the
Petitioner is likely to exaggerate and worsen the disability of
the Petitioner, thereby creating a risk not only for the service
rendered but also towards the overall mental health and well-
being of the Petitioner." (emphasis supplied)
51. On one hand, the respondent has trivialised the ailment of the petitioner
by stating that it is not of permanent nature, and that he would cease to be a
PwD with bench mark disability, at some point of time, with his disability
falling below 40%. On the other hand, in the aforesaid paragraphs, the
respondent states that the condition of the petitioner is so severe that he may
not be able to handle the stressful job of a Judicial Officer.
52. Once the posts are advertised - and seats are reserved for, inter alia,
persons with mental illness, it is not open to the respondent to deny the
petitioner reservation under the RPwD Act, merely on the basis of an opinion
or belief entertained by it - that the petitioner 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 and we have
extracted hereinabove the relevant paragraph from the Schedule. There is no
dispute that BPAD is a mental illness. This is clear from the medical
certificate issued by the AIIMS to the petitioner and, even the respondent does
not claim that BPAD - from which the petitioner suffers, is not a "mental
illness".
53. Pertinently, "mental illness" does not include "retardation which is a
condition of arrested or incomplete development of mind of a person,
specially characterised by sub normality of intelligence". Thus, "mental
illness" as defined in the Schedule relates to "Mental behaviour", and it does
not relate to intellectual deficit of the person on account of incomplete
development of the mind. From the Medical Certificate issued to the
petitioner, and the medical literature referred to above, it appears that mental
illness, which relates to mental behaviour - as defined in the Schedule, is a
condition which can be treated and kept under check with lifelong medication
and treatment. It also appears that a person suffering from such like mental
illness can - while under treatment, lead a normal life, though he may face
up's and down's from time to time. 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. Such persons have a fully developed mind like any normal
human being. They may suffer from substantial disorder of thinking, mood,
perception, orientation or memory that may grossly impair judgment,
behaviour, capacity to recognise reality or ability to meet the ordinary
demands of life, but with medication and treatment such manifestations can
be kept at bay. The mere apprehension that the respondent has - that the
petitioner may not be able to handle the responsibility and stress which a
Judicial Officer faces, cannot be a reason to declare him medically "unfit", or
to say that he is not entitled to claim reservation. There is no medical opinion
placed on record, or considered by the respondent, to come to the conclusion
that a person - who is suffering from BPAD, and is under remission, would
not be able to discharge his responsibilities as a Judicial Officer. Pertinently,
there is no exemption granted by the appropriate Government referable to the
proviso to Section 20(1) of the RPwD Act, which reads:
"(1) No Government establishment shall discriminate against
any person with disability in any matter relating to employment:
Provided that the appropriate Government may, having regard
to the type of work carried on in any establishment, by
notification and subject to such conditions, if any, exempt any
establishment from the provisions of this section." (emphasis
supplied)
54. 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. On the basis of a mere
apprehension that there is a possibility that, in future, the petitioner's
disability may deteriorate - once he is appointed as a judicial officer and takes
charge, and he may not be able to handle the responsibilities because of its
stressful nature, cannot be a reason to deny him the benefit of reservation - to
which he is statutorily entitled, and discriminate against him on the basis of
his disability. Denial of reservation to the petitioner, which is his lawful right,
is in clear breach of sections 20 and 34 of the RPwD Act.
55. In LIC of India v. Chief Commissioner for Disabilities & Anr. (2002)
101 DLT 434, the Court held that a possible future eventuality cannot be a
ground to deny employment. The Court observed in paragraph 16 as follows:
"16. Learned counsel for the LIC submitted that the mental
faculty of Respondent No. 2 would deteriorate with the passage
of time, as dictated by the natural history of the disease. If that
be so, and if it renders Respondent No. 2 unfit for work, his
services can always, be dispensed with in accordance with the
recruitment rules of the LIC, if they so permit. What may happen
in future cannot be a ground to deny employment today."
56. Rule 3 of the RPwD Rules provides:
"3.Establishment not to discriminate on the ground of
disability.- (1)The head of the establishment shall ensure that the
provision of sub-section (3) of Section 3 of the Act are not
misused to deny any right or benefit to persons with disabilities
covered under the Act."
57. Section 3 of the RPwD Act reads as follows:
"3. (1) The appropriate Government shall ensure that the
persons with disabilities enjoy the right to equality, life with
dignity and respect for his or her integrity equally with others.
(2) The appropriate Government shall take steps to utilise the
capacity of persons with disabilities by providing appropriate
environment.
(3) No person with disability shall be discriminated on the
ground of disability, unless it is shown that the impugned act or
omission is a proportionate means of achieving a legitimate
aim.
(4) No person shall be deprived of his or her personal liberty
only on the ground of disability.
(5) The appropriate Government shall take necessary steps to
ensure reasonable accommodation for persons with
disabilities."
58. Section 2(h) and 2(y) of the RPwD Act read as follows:
(h) "discrimination" in relation to disability, means any
distinction, exclusion, restriction on the basis of disability which
is the purpose or effect of impairing or nullifying the recognition,
enjoyment or exercise on an equal basis with others of all human
rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field and includes all forms of
discrimination and denial of reasonable accommodation;
x x x x x x x x x
(y) "reasonable accommodation" means necessary and
appropriate modification and adjustments, without imposing a
disproportionate or undue burden in a particular case, to ensure
to persons with disabilities the enjoyment or exercise of rights
equally with others;"
59. By denying the petitioner reservation under the RPwD Act, the
respondent has breached the abovementioned provisions. When a government
establishment provides reservation for persons with benchmark disabilities
i.e. with specified disabilities to the extent stipulated, for any post, any
candidate who fulfils the criteria must be assumed to be fit and proper for the
post. The respondent could not have assumed that the petitioner would be
unable to perform the duties of the post of a Judicial Officer.
60. In Union of India v. National Federation of the Blind, 156 (2009)
DLT 446 (DB), the Supreme Court held as follows:
"23. India as a welfare State is committed to promote overall
development of its citizens including those who are differently
abled in order to enable them to lead a life of dignity, equality,
freedom and justice as mandated by the Constitution of India.
The roots of statutory provisions for ensuring equality and
equalisation of opportunities to the differently abled citizens in
our country could be traced in Part III and Part IV of the
Constitution. For the persons with disabilities, the changing
world offers more new opportunities owing to technological
advancement, however, the actual limitation surfaces only when
they are not provided with equal opportunities. Therefore,
bringing them in the society based on their capabilities is the
need of the hour.
x x x x x x x x x
50. Employment is a key factor in the empowerment and
inclusion of people with disabilities. It is an alarming reality
that the disabled people are out of job not because their
disability comes in the way of their functioning rather it is
social and practical barriers that prevent them from joining the
workforce. As a result, many disabled people live in poverty and
in deplorable conditions. They are denied the right to make a
useful contribution to their own lives and to the lives of their
families and community." (emphasis supplied)
61. The respondent's reliance on Harneet Kaur (supra) is misplaced. In
Harneet Kaur (supra), the petitioner was suffering from a temporary
disability and, therefore, the Division Bench held that the benefit of the RPwD
Act cannot be extended to persons with temporary disabilities. That is not the
case in hand.
62. Reliance placed by Mr. Datar on Jadhav Vishwas Haridas (supra) is
misplaced. That was a case under the Persons with Disabilities (Equal
Opportunities, Protection of Rights And Full Participation) Act, 1995. The
grievance of the petitioner/ appellant in that case was denial of reservation
under Section 33 of that Act to persons with mental illness. In that context,
the Court made the observations taken note of hereinabove. Those
observations, in the context of the present case, have no bearing.
63. The intent and object of the RPwD Act is to protect and preserve the
rights of disabled persons, and employment is an essential aspect of utmost
importance and the RPwD Act has to be read liberally, keeping in mind that
it is a beneficial and social welfare legislation which has to be given effect to
in order to protect the rights of the PwD, and not to defeat their rights. In LIC
of India (supra), the Learned Single Judge observed in the context of Persons
with Disabilities (Equal Opportunities, Protection of Rights And Full
Participation) Act, 1995 as follows:
"22. The Act, being a beneficial legislation, required some
affirmative action to be taken on the part of LIC and other
authorities. V. Finkelstein and S. French, as quoted in
"Disability: Challenges v. Responses" by Ali Baquer and Anjali
Sharma have said that :-
"Disability is the loss or limitation of opportunities
that prevents people who have impairments from
taking part in the normal life of the community on
an equal level with others due to physical and social
barriers."
23. It is for this reason that one of the great world leaders,
Nelson Mandela said (as quoted in Disability: Challenges v.
Responses) -
"All countries today need to apply affirmative
action to ensure that the women and the disabled
are equal to all of us.""
64. In Babita Pathak & Ors. V. High Court of Delhi & Ors., 2013 (135)
DRJ 382, this Court emphasized the fact that the Persons with Disabilities
(Equal Opportunities, Protection of Rights And Full Participation) Act,
1995 is a piece of beneficial legislation. This Court held:
"11. Mr. Datar, appearing on behalf of the High Court of
Delhi, submitted that the said Act being a beneficial/welfare
legislation enacted to benefit the persons with disabilities had
been enacted with the object and purpose of giving effect to the
proclamation on the full participation and equality of the
persons with disabilities as also to ensure equal opportunities
and protection of the rights of full participation of such persons.
That being the case, it was submitted that the said Act ought to
be given a liberal, purposive and constructive interpretation in
favour of the persons with disabilities. For this proposition, he
placed reliance on Bata India Ltd. v. Union of India,180 (2011)
DLT 351 (DB):2011 (124) DRJ 188 [DB]; National Federation
of the Blind v. Union of India,156 (2009) DLT 446 (DB), Kunal
Singh v. Union of India,(2003) 4 SCC 524andGNCTDv.All India
Confederation of the Blind,128 (2006) DLT 695 (DB).
12. In Bata India Limited(supra), a Division Bench of this
court, had, in turn, referred to various decisions of the Supreme
Court to arrive at the conclusion that a beneficial legislation is
to be interpreted in favour of the beneficiaries when it is possible
to take two views of a provision. The first decision referred to in
Bata India Ltd.(supra) was that of Bharat Singh v. Management
of New Delhi Tuberculosis Centre, New Delhi,(1986) 2 SCC 614,
wherein the Supreme Court held as under:--
"Now, it is trite to say that acts aimed at social
amelioration giving benefits for the have-nots
should receive liberal construction. It is always the
duty of the Court to give such a construction to a
statute as would promote the purpose or object of
the Act. A construction that promotes the purpose
of the legislation should be preferred to a literal
construction. A construction which would defeat the
rights of have--nots and the underdog and which
would lead to injustice should always be avoided."
13. Similarly, in S.M. Nilajkar v. Telecom District Manager,
Karnataka,(2003) 4 SCC 27, another decision referred to in Bata
India Limited(supra), the Supreme Court observed as under:--
"12 It is well settled by a catena of decisions that
labour laws being beneficial pieces of legislation
are to be interpreted in favour of the beneficiaries
in case of doubt or where it is possible to take two
views of a provision"
14. A word of caution, however, was sounded in Usha Breco
Mazdoor Sangh v. Management of Usha Breco Limited,(2008) 5
SCC 554, which has also been noted in Bata India
Limited(supra). In Usha Breco (supra), the Supreme Court
observed as under:--
"26. It may not be a correct approach for a superior
court to proceed on the premise that an Act is a
beneficient legislation in favour of the management
or the workmen. The provisions of the statute must
be construed having regard to the tenor of the terms
used by Parliament. The court must construe the
statutory provision with a view to uphold the object
and purport of Parliament. It is only in a case.
where there exists a grey area and the court feels
difficulty in interpreting or in construing and
applying the statute, the doctrine of beneficient
construction can be taken recourse to. Even in
cases where such a principle is resorted to, the
same would not mean that the statute should be
interpreted in a manner which would take it beyond
the object and purport thereof."
15. In similar vein is the decision of the Supreme Court in
Edukanti Kistamma (Dead) Through LRs v. S. Venkatareddy
(Dead) Through LRs,(2010) 1 SCC 756
16. In National Federation of Blind(supra), a Division Bench
of this court held as under:--
"16. The Disabilities Act was enacted for protection
of the rights of the disabled in various spheres like
education, training, employment and to remove any
discrimination against them in the sharing of
development benefits vis-a-vis non-disabled
persons. In the light of the legislative aim it is
necessary to give purposive interpretation to
Section 33 with a view to achieve the legislative
intendment of attaining equalization of
opportunities for persons with disabilities.,"
17. In Kunal Singh(supra), the Supreme Court held as
under:--
"9. In construing a provision of a social beneficial
enactment that too dealing with disabled persons
intended to give them equal opportunities,
protection of rights and full participation, the view
that advances the object of the Act and serves its
purpose must be preferred to the one which
obstructs the object and paralyses the purpose of
the Act. Language of Section 47 is plain and certain
casting statutory obligation on the employer to
protect an employee acquiring disability during
service."
18. In GNCTD v. All India Confederation of the Blind(supra),
a Division Bench of this court observed, with reference to the
said Act, that it was a welfare legislation and, therefore, if two
views were possible, the interpretation which was in favour of
the handicapped persons, ought to be adopted. From the above
decisions, which have been relied upon by Mr Datar, it becomes
clear that social welfare legislations ought to be given a
beneficial and purposive construction which advances the
object of the legislation. Of course, such an interpretation would
only be possible where the provision is open to more than one
meaning and is in keeping with the legislative intent.
19. It was also contended by Mr Datar that the said Act, which
includes the said Section 36, is a piece of legislation which, is
aimed at the amelioration of persons with disabilities. The said
Act does not contemplate or intend to create or grant any rights
in favour of persons, other than those with disabilities......
x x x x x x x x x
34. .........The intent and purport behind the said provision
is to bring the persons with disabilities into mainstream
activities and to enable them to contribute to society in general.
The persons with disabilities are not to be discarded from the
society at large. They are useful and productive members of
society despite their disabilities and the purpose behind the Act
is to give them an equal opportunity to contribute to society so
that they are fully able to participate in national life. It is clear
that the Act is meant for the benefit of the disabled." (emphasis
supplied)
65. The aforesaid observations apply with equal force in respect of the
RPwD Act, which is the improved and later version of the earlier Act taken
note of hereinabove.
66. In the light of the aforesaid discussion, we allow this writ petition and
set aside the notice dated 21.5.2019 insofar as it declares the petitioner's
disability to be not permanent. We accordingly direct the respondent to
declare the petitioner as selected to the Delhi Judicial Service without any
further delay, since, undisputedly, he is the only qualified candidate in the
'mental illness' category. Upon his appointment, the petitioner would retain
his notional seniority along with his other batchmates and he would be
deemed to have joined his post along with his other batchmates, though he
would not be entitled to any back wages. It goes without saying that the
respondent shall issue necessary orders regarding the petitioner's Induction
training for Judicial Officers.
67. The petition stands disposed of in the aforesaid terms. There shall be
no order as to costs.
(VIPIN SANGHI)
JUDGE
(SANJEEV NARULA)
JUDGE
MAY 08, 2020
