Supreme Court upholds right to employment of persons with cerebral palsy
Syed Bashir-Ud-Din Qadri vs Nazir Ahmed Shah
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.2281-2282 OF 2010
(Arising out of SLP(C)Nos.10669-70 of 2008)
The SLP was filed by a person with cerebral palsy in Jammu & Kashmir who had completed his B.SC and was offered employment under a scheme of the government of Jammu and Kashmir known as a Rehbar-e-Taleem, which literally translated means, a “Teaching Guide.” In spite of having stood first in the merit list, the petitioner was not given an employment letter on the basis of a complaint filed by a person who stood 4th in the merit list and who questioned his appointment on the ground of his disability. Aggrieved at not being given the letter of employment in-spite of standing 1st in the merit list, he approached the High Court where his plea was dismissed. Further aggrieved by this decision of the High Court he appealed against the order in the division bench, which in an unusual approach examined petitioner in Court, and finding him lacking, passed an order upholding the order of the single bench.
Frustrated, petitioner approached the Supreme Court for setting aside the judgment of the High Court and appealed for his employment.
Colin Gonsalves, Sr Advocate argued on behalf of petitioner and stated that the J & K High Court had violated the provisions of Section 22 and Section 27 of the Persons With Disability Act. Advocate Colin Gonsalves also argued on the concept of reasonable accommodation stating that provisions of aids and appliances like computers, LCD projectors be made available to petitioner to help overcome his difficulty in writing on the blackboard and which did not require the Education department to cast an undue financial burden on the state.
The Supreme Court on 10 March, 2010 upheld the rights of the persons with cerebral palsy to employment. Hon’ble Supreme Court observed about this case in its Judgment “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.”
The Supreme Court further observed “It is unfortunate that in spite of the positive aspects of the appellant’s functioning as Rehbar-e-Taleem and the clear and unambiguous object of the 1995 Act, the High Court adopted a view which wasnt compatible therewith. The High Court has dealt with the matter mechanically, without even referring to the 1995 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 person with 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.”
Hearing the arguments Justice Altamas Kabir and Justice Cyriac Joseph set aside the order of the Jammu and Kashmir High Court, ordered reinstatement with continuity of service from the date of disengagement with the period between disengagement and reappointment not to be considered as break in service and entitlement to all notional benefits for the said period of disengagement.Read the order here.
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