Delhi High Court: The Division Bench of Vipin Sanghi and Sanjeev Narula, JJ., decided a matter while reasoning out on why a person with Bipolar Disability should be granted reservation under the mental illness category for the appointment as Judicial Officer.
Background
The present petition was preferred to assail the notice/result published by the Registrar General, Delhi High Court dated 21-5-2019, whereby the candidature of the petitioner for Delhi Judicial Services-2018 under the category of Persons with Disabilities was rejected on account of the petitioner’s mental capacity not being found to be permanent in nature.
For the above, the respondent relied upon the Disability Certificate issued by the All-India Institute of Medical Sciences.
Issue for Consideration
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?
Analysis, Law and Decision
High Court relying on the Supreme Court decision of Pankaj Mahajan v. Kajal, (2011) 12 SCC 1, wherein the nature of the said illness was considered i.e. BPAD in the context of a claim for divorce on the ground of the wife being incurable of unsound mind, and on the ground of cruelty. In this decision, Court accepted the position that BPAD was a lifelong/permanent and incurable mental illness, premised on statements and evidences led by medical doctors.
This Court in view of the above-cited Supreme Court decision along with medical literature concluded that Bipolar Affective Disorder was a serious lifelong and permanent incurable mental illness that can, at best, be suppressed with medications and treatment, but cannot be cured.
People who suffer from Bipolar Disorder can live a healthy life, albeit they will have to take treatment all their lives.
In the present matter, the petitioner had been suffering from Bipolar Affective Disorder since 2010 and was in treatment for the same since 2010.
In Court’s opinion, the petitioner successfully competed with other PwD candidates, and he was permanently disabled. Hence, he cannot be denied reservation on an assumed basis, as done by the respondent.
The true reason why the respondent rejected the petitioner’s candidature was not that his mental illness was not of permanent nature, or that it may fall below 40% but because the respondent was of the opinion that the medical condition of BPAD rendered the petitioner incapable of rendering service as a Judicial Officer.
Bench expressed that,
Once the posts are advertised – seats are reserved for, inter alia, persons with mental illness, it is not open to 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.
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.
It was also stated that
“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.”
Further, the Court elaborated its above observation stating that, such person has a fully developed mind like any normal human being. They may suffer from a substantial disorder of thinking, mood, perception, orientation or memory that may grossly impair judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demand of life, but with medication and treatment such manifestations can be kept at bay.
Why Respondent was not right in not granting reservation to the petitioner?
High Court added that,
- the respondent could not place any medical opinion on record to come to the conclusion that a person suffering from BPAD and is under remission, would not be able to discharge his responsibilities as a Judicial Officer.
- Respondent cannot discriminate against any person with a disability in any matter relating to employment.
- Respondent has no competence to take a decision on the issue of 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.
- 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.
In view of the above reasons, denial of reservation was in clear breach of Sections 20 and 30 of the RPwD Act.
In the Supreme court decision of LIC of India v. Chief Commissioner for Disabilities, (2002) 101 DLT 434, it was held that a possible future eventuality cannot be a ground to deny employment.
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.
Concluding the matter, High Court set aside the notice which declared the petitioner’s disability to be not permanent.
The direction was issued to 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.
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.
In view of the above petition was disposed of. [Bhavya Nain v. High of Delhi, WP (C) No. 5948 of 2019, decided on 8-5-2021]
Advocates before the Court:
For the Petitioner:
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.
For the Respondent:
Mr. Viraj R. Datar, Ms. Meenal Duggal, Advocates.