People With Mental Illness Can't Be Discriminated In Matters Of Employment: Delhi HC Declares A Candidate With Bipolar Disorder Is Fit For Judicial Service [Read Judgment]

A Delhi High Court bench of Justices Vipin Sanghi and Sanjeev Narula on 8th May, 2020 gave an important Judgment regarding selection of judges under the Persons with Disability (PwD) category.The petitioner, Bhavya Nain, was a candidate with Bipolar Affective Disorder (BAPD) which is a mental illness. He applied for the Delhi Judicial Service Exam 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. He cleared the preliminary and mains examinations. All persons availing the benefit of reservation for PwD category were asked to submit a "certificate issued by a Government Hospital/Medical Board in support of his/her claim." Accordingly, the petitioner obtained a certificate from AIIMS. It declared him 45% mentally disabled but stated that his condition was in remission and was likely to get better. The certificate was valid for a period of 5 years.After the interview, despite qualifying in the final result, the Registrar General, Delhi High Court refused to select the petitioner stating that his "disability was not found to be permanent as per the Disability Certificate submitted by him." The petitioner stated that the rejection was "based on a complete misreading of the petitioner's Disability Certificate and the provisions of the RPwD Act and the Rules framed thereunder". He quoted Section 34 of the RPwD Act which provides reservation to persons with benchmark disabilities (disabled to the degree of 40% and above), arguing that the petitioner clearly fell within this category and was entitled to the benefits of reservation. Further, Rule 18 (3)(ii) of the RPwD rules 2017 allows for issue of a temporary certificate where there is a chance of variation over time in the degree of disability. Also, rule 19 states that a certificate granted under rule 18 will be generally valid for all purposes. The petitioner argued that a conjoint reading of the two rules makes it clear that rule 19 does not differentiate between certificate granted permanently or on a temporary basis. Additionally, S. 34 does not require that "the Disability Certificate must specify that the mental illness is permanent in nature, as envisaged under Rule 18(3)(i)."Mr. Datar, appearing on behalf of the Registrar General, Delhi High Court, argued that under Section 2 (s) the disability must be "long-term". Since the petitioner's condition was not long term, he could not be categorised as a person with disability, and hence will also not be a person with benchmark disability as per Section 2 ( r), which is a sub-category of the former. He relied on the statement in the certificate that remission was possible to argue that it is a short-term and temporary disability. He added that if the condition got better after selection as judge, the petitioner will no longer be protected under Section 34 of the RPwD Act. Further, the respondent's affidavit justified the rejection stating that the petitioner would not be a fit candidate owing to his disability, and the high-stress environment of the job and that the job might worsen his condition. The bench observed that while on the one hand the respondent argues that the petitioner is not sufficiently disabled to be entitled to the benefits of reservation, on the other hand "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."The bench examined medical literature on the nature of BAPD and reached the conclusion that it is a long-term, chronic and lifelong recurring disability which can be controlled with medication but cannot be cured. They observed, "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… He is permanently disabled. He cannot be denied reservation on an assumed basis…". Thus, the mere chance of remission of a mental disability does not render it a temporary disability. While deciding in favour of the petitioner, it observed "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) (RPwD Act, 2016), having regard to the type of work carried out in the establishment of the judicial service. This decision rests with the appropriate Government". Section 20 (1) states that no government establishment can discriminate against any person with disability in the matter of employment unless the type of work demands such discrimination. This provision empowers only the "appropriate government" to exempt a government establishment from the application of S. 20, and not the respondent, who...

People With Mental Illness Can't Be Discriminated In Matters Of Employment: Delhi HC Declares A Candidate With Bipolar Disorder Is Fit For Judicial Service [Read Judgment]

Nausheen Khan

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