WHAT IS THE CASE ABOUT?
On Friday, the Delhi HC gave an important judgement regarding selection of judges under the Persons with Disability (PwD) category. In Bhavya Nain v. High Court of Delhi, the petitioner, Bhavya Nain, was a candidate with Bipolar Affective Disorder (BAPD), which is mental illness. He had applied for the Delhi Judicial Service Exam 2018 under PwD category which includes of autism, intellectual disability, specific learning disability and mental illness and Multiple disabilities mentioned under clauses (a) to (d) of Section 34(1) of Rights of Persons with Disabilities Act, 2016 including deaf-blindness. Two seats are reserved for the same in the exam. The petitioner had cleared the preliminary and mains examination.
All persons who avail the benefit of reservation under the PwD category are asked to submit a “certificate issued by a Hospital/Medical Board in support of his/her claim.” In pursuance of the same, the petitioner obtained a certificate from AIIMS, Delhi. The certificate, which has a validity of 5 years, declared him 45% mentally disabled but stated that his condition was in remission and that the petitioner was likely to get better.
CONTENTIONS OF THE PETITIONERS:
- Stated that the petitioner fell within the scope a person with disability as section 34 of the RPwD Act provides reservation of persons with benchmark disability, disabled to the degree of 40% and above, and thus he was entitled to the benefits of reservation.
- Further, it was argued that that the petitioner’s Disability Certificateis valid under Rule 18 and 19 of the RPwD Rules read with Rule 26 and 27 ofthe Delhi RPwD Rules and despite having a valid Disability Certificate issuedas per the guidelines under the RPwD Act, he has been denied the benefit forreservation though he is rightfully entitled to it as a person with benchmarkdisability (since the disability has been certified as not less than 40%, as it hasbeen found to be 45%) provided under section 34 of the RPwD Act.
- No requirement under section 34 of theRPwD Act that the Disability Certificate must specify that the mental illnessis permanent in nature, as envisaged under Rule 18(3)(i).
CONTENTIONS OF THE RESPONDENTS:
- The respondents argued that under section 2(s) of RPwD Act, the disability must be “long-term”. Since the petitioner’s condition was not long term, he could not be categorized as a person with disability under section 2(r), which is subcategory of the former.
- It was further argued that according to the certificate, the disability was in the stage of remission. Therefore, if the condition gets better once after the petitioner is selected as a judge, the petitioner will no longer be protected under section 34 of the RPwD Act.
- It was also contended that the petitioner, owning to his disability, won’t be able to function properly due to the high-stress environment and nature surrounding the job profile, and might even worsen his mental condition.
- The Bench, consisting of Justices Vipin Sanghi and Sanjeev Narula, examined medical literature on the nature of BADP. They reached the conclusion that the disability is lifelong, chronic and lifelong recusing disability which can be controlled with medication but cannot necessarily be cured.
- The respondents have no basis of assuming that just because the petitioner’s condition is in the stage of remission, it will fall below 40%. The petitioner cannot be denied reservation, on the basis of an assumption.
- The respondent cannot discriminate against any person with disability in matter relating to employment. The court further stated that“the inetent and object of the RPwD Act is to protect and preserve the rights of disabled persons, and employment is as 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.”
- The writ petition was allowed, and the court directed the respondent to declare the petitioner as selected to the Delhi Judicial Service without any further delay.