In 2010, a case involving a teacher with cerebral palsy came before the Supreme Court after his employment with the school was terminated by the Jammu and Kashmir Government. After reviewing the performance of the teacher and relevant law that provided for reservation to people with cerebral palsy in identified teaching posts, the Supreme Court held that the termination was not valid.
Edited portions of the Judgment are posted hereunder.
Case Title: Appellants: Syed Bashir-ud-din Qadri Vs. Respondent: Nazir Ahmed Shah and Ors., MANU/SC/0158/2010.
Facts of the Case
“2. The appellant is a person suffering from cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds. Despite his handicaps, the appellant completed his graduation under the University of Kashmir and was awarded a B.Sc. degree by the University on 28th February, 2004.
3. On 28th April, 2004, the State of Jammu & Kashmir launched a scheme known as “Rehbar-e- Taleem” which literally translated means a “Teaching Guide”. Under the Scheme, a Village Level Committee was constituted to select persons to be appointed as “Rehbar-e-Taleem” who would be deemed to be community workers for a period of five years on a monthly honorarium after which they would be considered for regularisation as General Line Teachers in the Education Department. The said stipulation came with the rider that in the event the teacher was unable to fulfil the age qualification, his employment would be on contractual basis for the future.
4. The appellant also applied for appointment as Rehbar-e-Taleem and in January, 2005, a merit list of four candidates was prepared by the Zonal Education Officer, Awantipora, for filling up three vacancies in the post of Rehbar-e-Taleem in the newly upgraded Kanjinag School under the Sarva Shiksha Abhiyan. On 16th February, 2005, the Chief Education Officer, Pulwama, published the list of the three proposed candidates for appointment as Rehbar-e-Taleem, in which the appellant was placed in the first position, inviting objections with regard to the list published along with documentary proof. Pursuant thereto, the Respondent No. 1 herein, Nazir Ahmad Shah, sent a letter to the Director of School Education, Srinagar, objecting to the appellant’s selection on the ground that being physically handicapped he was not fit for being appointed as Rehbar-e-Taleem.
5. As the respondents were not issuing an appointment letter to the appellant, he filed a Writ Petition, being SWP No. 363 of 2005, before the Jammu and Kashmir High Court in Srinagar on 25th April, 2005, for a Writ in the nature of Mandamus to command the respondents therein to issue appointment letter in his favour in terms of the list issued by them.
6. During the pendency of the writ petition the Jammu and Kashmir Government issued a Gazette Notification on 21st October, 2005, providing for 3% reservation for appointment by direct recruitment for physically challenged candidates. In the said Notification it was particularly indicated that reservations in recruitment would be available for physically challenged persons for services and posts specified under Section 22 of the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 (hereinafter referred to as “the 1998 Act”). Section 22 of the said Act, which deals with reservation of posts, provides that the Government shall appoint in every establishment such percentage of vacancies, not less than 3%, for persons or class of persons with disabilities and suffering from:
7. The writ petition filed by the appellant was heard and disposed of on 31st August, 2006, with a direction that candidates should be appointed only after they were found physically fit for the job and that the concerned respondent should consider the possibility of absorbing the appellant under the quota of handicapped persons. Pursuant to the orders of the High Court, on 15th September, 2006, the Director of School Education, Kashmir, constituted a committee comprising of the Joint Director (EE), Personnel Officer, DSEK and Chief Education Officer, Srinagar, to enquire into the appellant’s claim for appointment as Rehbar-e- Taleem. The said Committee submitted its report on 13th November, 2006, certifying that the appellant was found reading and talking well and able to teach, but his problem was that he could not write. On an overall assessment and with particular regard to the State’s policy on rehabilitation of the physically handicapped, the Committee was of the view that the appellant be given a chance and that his appointment as Rehbar-e-Taleem could also restore his self-esteem. On receipt of the said report, the Director of School Education, Kashmir, directed the Chief Education Officer, Pulwama, to issue a letter to the appellant engaging him as Rehbar-e-Taleem in Middle School, Kanjinag. Such order of engagement was issued to the appellant by the Chief Education Officer, Pulwama, on 25th November, 2006. The said order of the Chief Education Officer, Pulwama, was followed by Order No. 147-ZEO of 2006 issued by the Zonal Education Officer, Awantipora, on 27th November, 2006 for engaging the appellant as Rehbar-e-Taleem in UPS, Kanjinag. On receipt of the letter of engagement, the appellant joined UPS, Kanjinag, and submitted his joining report to the Head Master of the school.
8. On 1st February, 2007,
Mr. Nazir Ahmed Shah, the candidate who was placed in the 4th position in the merit list, filed SWP No. 103/2007 before the Jammu and Kashmir High Court at Srinagar praying for quashing of the report of the Committee and to cancel the order of the Director of School Education, Kashmir, appointing the appellant as Rehbar-e-Taleem in UPS, Kanjinag, and prayed that he be appointed as Rehbar-e-Taleem in place of the appellant.
9. On the orders of the Jammu and Kashmir High Court, the appellant was examined by the Head of the Department of Neurology in the Sher-e-Kashmir Institute of Medical Sciences (SKIMS), Soura, Srinagar, and in his report, the Head of the Department of Neurology indicated that the appellant was suffering from cerebral palsy with significant speech and writing difficulties, which would make it difficult for him to perform his duties as a teacher.
10. On the basis of such report, the Director of School Education, Kashmir on 17th July, 2007, constituted a Committee to examine the working of the appellant in the school. The said Committee made an on-the-spot assessment on 17th July, 2007, and expressed the view that the appellant was well- versed with the subject he taught and did justice with his teaching prowess. On 7th September, 2007, the Jammu and Kashmir High Court disposed of the writ petition fled by Nazir Ahmed Shah by quashing the appellant’s appointment and directed the Director of School Education, Kashmir, to identify a suitable job where the appellant could be accommodated to enable him to earn a suitable living.
11. Aggrieved by the said order of the learned Single Judge, the appellant filed L.P.A. No. 204/2007 on 22nd October, 2007. During the pendency of the Letters Patent Appeal on 8th November, 2007, the Head Master, Government Middle School, Kanjinag, issued a letter indicating that the appellant had satisfactorily completed one year in the school. However, soon thereafter, on 21st November, 2007, the High Court dismissed the appellant’s Letters Patent Appeal. In terms of the order passed by the Division Bench of the High Court, the Director of School Education, Kashmir, directed the Chief Education Officer, Pulwama, to identify the post of Library Bearer and to submit a report to the High Court. Upon identification of such posts for the appellant by the Chief Education Officer, Pulwama, the Director of School Education, Kashmir directed the Chief Education Officer, Pulwama, to implement the order of the High Court passed in SWP No. 103/2007. In response to the above, on 3rd January, 2008, the Director of School Education, Kashmir, informed the High Court that two posts of Library Bearer and two posts of Laboratory Assistant were vacant, against which the appellant could be considered. Soon thereafter, on 19th January, 2008, the Chief Education Officer, Pulwama, issued an order disengaging the appellant from the post of Rehbar-e-Taleem.
12. Aggrieved by the order of the learned Single Judge in the writ petition filed by Nazir Ahmad Shah (SWP No. 103 of 2007), resulting in the passing of the order of his disengagement from the post of Rehbar-e-Taleem, the appellant preferred the Special Leave Petition (now Appeal) basically on the ground that the same was contrary to the provisions of Section 22 of the 1998 Act whereunder it has been provided that the Government shall appoint in every establishment such percentage of vacancies not less than 3% for persons or class of persons with disabilities among which locomotor disability or cerebral palsy was also identified. ”
Decision of the Court
“28. Having regard to the nature of the problem posed in this appeal in relation to the Jammu and Kashmir Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1998 we have given our anxious consideration to the submissions made on behalf of the respective parties and the provisions of the aforesaid Act in arriving at a decision in the present case. It has to be kept in mind that this case is not one of the normal cases relating to a person’s claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity. This is a case which has to be handled with sensitivity and not with bureaucratic apathy, as appears to have been done as far as the appellant is concerned.
29. As has been indicated hereinbefore, the object of the 1998 Act is to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to persons with disabilities. Section 2(d)(v) recognizes “locomotor disability” which is the result of cerebral palsy. Locomotor disability has also been separately defined in Section 2(j) to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. A “person with disability” has been defined in Section 2(p) to mean a person suffering from not less than 40% of any disability as certified by a Medical Authority. Keeping the same in mind, Chapter V of the 1998 Act provides for employment of persons with disabilities. Section 21 deals with identification of posts which can be reserved for persons with disabilities. As we have indicated hereinbefore, Section 22 deals with reservation of posts and 1% of the vacancies available, is required under Section 22 to be reserved for persons suffering from locomotor disability or cerebral palsy in the posts identified for each disability. We have also noticed earlier, the provisions of Section 22 of the 1998 act which provide for schemes for ensuring employment of persons with disabilities. Under the said Section, the Government and local authorities are required to formulate schemes for ensuring employment of persons with disabilities.
30. Chapter VI of the Act makes provision for affirmative action and Section 31 thereof provides as follows:
31. Aids and appliances to persons with disabilities.
The Government shall by notification make schemes to provide aids and appliances to persons with disabilities.
31. As submitted by Mr. Gonsalves, while a person suffering from cerebral palsy may not be able to write on a blackboard, an electronic external aid could be provided which could eliminate the need for drawing a diagram and the same could be substituted by a picture on a screen, which could be projected with minimum effort.
32. It is only to be expected that the movement of a person suffering from cerebral palsy would be jerky on account of locomotor disability and that his speech would be somewhat impaired, but despite the same, the Legislature thought it fit to provide for reservation of 1% of the vacancies for such persons. So long as the same did not impede the person from discharging his duties efficiently and without causing prejudice to the children being taught, there could, therefore, be no reason for a rigid approach to be taken not to continue with the appellant’s services as Rehbar-e-Taleem, particularly, when his students had themselves stated that they had got used to his manner of talking and did not have any difficulty in understanding the subject being taught by him.
33. Coupled with the above is the fact that the results achieved by him in the different classes were extremely good; his appearance and demeanour in school had been highly appreciated by the Committee which had been constituted pursuant to the orders of the High Court to assess the appellant’s ability in conducting his classes. Reference may also be made to the observations made by an earlier Committee consisting of the Joint Director of Education and the Chief Education Officer, Srinagar, wherein it was observed as follows:
4. The candidate (petitioner) was called to the office in presence of Director School Education. He was found reading and talking well and thus assessed by Committee to be able to teach. His problem is that he cannot write.
5. On the overall consideration, with particular regard to the state policy on the rehabilitation of the physically handicapped, the Committee is of the view that the boy (petitioner) be given a chance. His appointment as R-e-T could also help restore a sense of self esteem in him. The Middle School, Kanjinagh having already six teaching staff in position, the petitioner not being able to write should not come in the way of his selection.
34. In the aforesaid background of events, the disengagement of the appellant as Rehbar-e-Taleem by virtue of the order of the Chief Education Officer, Pulwama, dated 19th January, 2008, goes against the grain of the 1998 Act. Apart from the fact that the appellant is a victim of cerebral palsy, which impairs the movements of limbs and also the speech of a victim, there is nothing on record to show that the appellant had not been performing his duties as Rehbar-e-Taleem efficiently and with dedication. On the other hand, his performance as a teacher was reflected in the exceptionally good results that he achieved in his discipline in the classes taught by him.
35. It is unfortunate that inspite of the positive aspects of the appellant’s functioning as Rehbar-e- Taleem and the clear and unambiguous object of the 1998 Act, the High Court adopted a view which was not compatible therewith. The High Court has dealt with the matter mechanically, without even referring to the 1998 Act or even the provisions of Sections 22 and 27 thereof. Instead, the High Court chose a rather unusual method in assessing the appellant’s capacity to function as a teacher by calling him to appear before the Court and to respond to questions put to him. The High Court appeared to be insensitive to the fact that as a victim of cerebral palsy, the appellant suffered from a slight speech disability which must have worsened on account of nervousness when asked to appear before the Court to answer questions. As has been submitted by Mr. Gonsalves, the intimidating atmosphere in which the appellant found himself must have triggered a reaction which made it difficult for him to respond to the questions put to him.
36. In our view, since the Committee constituted to assess his performance as a teacher notwithstanding his disability had formed a favourable impression about him, his tenure as a Rehbar-e-Taleem ought to have been continued without being pitch-forked into a controversy which was uncalled for. We are convinced that the approach of the local authorities, as well as the High Court, was not in consonance with the objects of the 1998 Act and scheme of the State Government to fill up a certain percentage of vacancies with disabled candidates, and was too pedantic and rigid. The order of the High Court cannot, therefore, be sustained and has to be set aside.”