Supreme Court - Daily Orders
Akanksha Singh vs High Court Of Delhi on 17 November, 2021
Bench: Sanjay Kishan Kaul, M.M. Sundresh
ITEM NO.101 COURT NO.6 SECTION XIV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.6113/2021
AKANKSHA SINGH Appellant(s)
VERSUS
HIGH COURT OF DELHI & ORS. Respondent(s)
([ PART-HEARD BY HON'BLE SANJAY KISHAN KAUL AND HON'BLE M.M.
SUNDRESH, JJ. ] )
WITH
C.A. No. 6114/2021 (XIV-A)
(IA No. 105653/2021 - APPLICATION FOR PERMISSION)
Date : 17-11-2021 These appeals were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE M.M. SUNDRESH
For Parties Mr. Rakesh Khanna, Sr. Adv.
Ms. Binu Tamta, AOR
Mr. Dhruv Tamta, Adv.
Mr. Ravindra S. Garia, AOR
Mr. Shashankk Singh, Adv.
Mr. Saurav T., Adv.
Mr. Omer Simon, Adv.
Mr. Hira Singh Rawat, Adv.
Mr. Rajat S. Roy, Adv.
Mr. Chirag M. Shroff, AOR
Mr. Santosh K. Rungta, Sr. Adv.
Mr. Bhargava V. Desai, AOR
Signature Not Verified
Digitally signed by
RASHI GUPTA
Mr. Kawal Nain, Adv.
Date: 2021.11.23
17:22:53 IST
Reason: Mrs. Kavita Sharma, Adv.
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Mr. Prashant Singh, Adv.
Ms. Aditi Diwan, Adv.
Mr. Rohit Dadwal, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Civil Appeal No.6114/2021
An advertisement was issued by the High Court of Delhi for the Delhi Judicial Service Examination, 2018 inter alia making a reservation for persons with disability candidates (PwD). Out of the two seats so reserved, one of the seats was reserved for Pwd (Autism, intellectual disability, specific learning disability and mental illness and Multiple disabilities mentioned under clauses (a) to (d) including deaf-blindness).
It would be useful in the context of the controversy before us to reproduce two notes forming part of the advertisement which read as under:-
“Note 3: 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.
Note 3: The differently-abled persons should be capable of efficiently discharging their duties as Judicial Officer as per the satisfaction of the Medical Board as may be constituted before or after their names are recommend for appointment.” 2 The first note 3 aforesaid, makes the advertisement subject to amendment of existing rules, which is to be notified, while the second note 3 in clear terms stipulates that the differently abled persons should be capable of efficiently discharging their duties as judicial officer as per the satisfaction of the Medical Board as may be constituted before or after their names are recommended for appointment.
The respondent before us is a law graduate who applied under the aforesaid category after having obtained a disability certificate for mental illness- Bipolar Affective Disorder i.e. BPAD which was issued on 12.12.2018 and is valid for a period of five years i.e. till 12.12.2023. The respondent initially cleared the preliminary examination and thereafter appeared for the main examination which he also cleared. He appeared for an interview and cleared the same also but the candidature of the respondent was rejected on the ground that his disability was not found to be permanent as per the disability certificate submitted by him. The respondent thus filed Writ Petition (C) No.5948 of 2019 before the High court and in terms of the impugned judgment dated 8.5.2020 the Writ Petition has been allowed setting aside the notice dated 21.5.2019 insofar as it declares the respondent’s disability to be not permanent. The High Court also issued consequential directions to declare the respondent as selected to the Delhi Judicial Service being 3 the only qualified candidate in the ‘mental illness’ category with his notional seniority being preserved along with the other batch mates being deemed to have joined this post, though he would not be entitled to any back wages and subject to his training as a judicial officer.
The special leave petition was filed assailing the said order. Notice was issued and interim stay was granted. Ultimately leave was granted in the matter and the interim order was made absolute and the main appeal itself was set down for hearing.
We have heard learned counsel for the parties at some length specially keeping in mind the sensitivities of the issues involved in the context of the objective of the Rights of Persons with Disabilities Act, 2016.
We are not impressed by the arguments advanced on behalf of the High Court by the learned counsel for the appellant inasmuch as it seeks to question the disability certificate issued under Rule 18(3)(ii) of Right of Persons with Disabilities Rules, 2017 on the premise that since it refers to possibility of improvement and thus is not permanent, the respondent cannot be granted the benefit of relaxed standard admissible to candidates belonging to persons with disability category. The Division Bench also exhaustively recorded the arguments of the two parties in this behalf and referred to the judicial precedents and came to the conclusion that BPAD was a life long/ permanent and 4 incurable mental illness but capable of being managed.
Our reservation, however, qua the impugned judgment is the part in which the Division Bench embarked thereafter referring to various medical literatures to come to its own conclusion that the performance of the judicial functions which should be assigned to the respondents as a consequence of his appointment could be performed without any impairment even if the candidate has a BPAD. We will hasten to add that we are not opining to the contrary but we do believe that this was not a subject the court could have delved into to come to a conclusion and the terms of the advertisement itself take care of this situation which should have been strictly adhered to. We have already quoted note 3 above a reading of which would require that a reference should have been made to a Medical Board so that the expert Board would opine whether the respondent can be said to be capable of efficiently discharging the duty as a judicial officer. Such an exercise under the note can be undertaken “before or after the names are recommended for appointment”.
Learned counsel for the respondent expressed some apprehensions on account of the absence of any laid down parameters for the Medical Board and refer to the innate social prejudices which arise while considering such cases for appointment. While one cannot differ completely in what is being canvased by learned counsel for the respondent, we are sure that the Medical Board will keep its objectivity 5 looking to the candidate, the task which he is required to perform on appointment and his medical condition.
Learned counsel for the respondent, to buttress his submission, referred to the handbook on medical examination issued by the Ministry of Health which at page 8 requires a case of a handicapped person referred to medical authority to be viewed with utmost sympathy (in terms of Ministry of Home Affairs O.M. No.F.20/29/57-RPS dated 15.1.1958). He also sought to refer to an office memorandum No.36035/3/2004-Estt (Res) dated 29.12.2005 dealing with reservation for the persons with disabilities wherein para 23 the medical examination has been dealt with as under:-
“23. MEDICAL EXAMINATION: As per Rule 10 of the Fundamental Rules, every new entrant to Government Service on initial appointment is required to produce a medical certificate of fitness issued by a competent authority. In case of medical examination of a person with disability for appointment to a post identified as suitable to be held by a person suffering from a particular kind of disability, the concerned Medical Officer or Board shall be informed beforehand that the post is identified suitable to be held by persons with disability of the relevant category and the candidate shall then be examined medically keeping this fact in view.” The aforesaid stipulates that this Court should make a Medical Board conscious of the fact that the post has been identified as a suitable post to be held by a person with disability of the relevant category and the candidate has to be examined medically keeping this fact in view.
6 In our view this is quite obvious and the subsequent developments of reservation for persons with mental disability having been excluded from the purview of appointment to the post in question in terms of a notification dated 04.1.2021 would not make a difference. We are required to determine the suitability in view of the position prevailing on the date of the advertisement and as per the terms of the advertisement. The Subsequent amendment would apply to subsequent selection processes.
Learned counsel for the respondent also sought to emphasise that the very fact that the respondent cleared the examination including the viva-voce itself supports the case for the ability of the respondent to handle the judicial work, more so as the BPAD is a medical problem which can be tackled with proper medication. This is an aspect of which we are sure the Medical Board would be quite aware.
We are thus of the view that the appropriate course would be to refer the issue to a Medical Board to be constituted by the Director, All India Institute of Medical Sciences (AIIMS), keeping in mind the particular disability of the respondent for the Medical Board to opine whether the respondent would be capable of efficiently discharging his duties as judicial officer (in terms of note 3 of the advertisement). The relevant material on record placed by respondent would be made available by the Registrar General of the High Court of Delhi for the benefit of the Medical 7 Board and at the request of the learned counsel for the respondent we clarify that if the Medical Board needs any interaction with the doctor who has been counselling the respondent, that is not precluded.
List for further proceedings on 09th December, 2021 by which time we expect the report of the Medical Board to be available for our scrutiny.
A Copy of the order be sent expeditiously to the Registrar of the Delhi High Court as well as to the Director, AIIMS.
Dasti, as well, by the appellant is permitted. Civil Appeal No.6113/2021 The fate of this matter would depend on the result of the directions issued by us in C.A. No.6114/2021.
List for directions 09th December, 2021 along with C.A. No.6114/2021.
(RASHMI DHYANI) (POONAM VAID)
COURT MASTER COURT MASTER
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