SYED BASHIR-UD-DIN QADRIversusNAZIR AHMED SHAH & ORS.

-
                             [2010) 3 S.C.R. 250


    A                  SYED BASHIR-UD-DIN QADRI
                                       v.
                        NAZIR AHMED SHAH & ORS.
                   (Civil Appeal Nos. 2281-2282 of 2010)
                              MARCH 10, 2010
    B
             [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

            Jammu and Kashmir Persons with Disabilities (Equal
        Opportunities, Protection of Rights and Full Participation) Act,
    c   1998:

             ss. 2(d}(v} 2(p),22 and 27 rlw s.31 - Person suffering from
        cerebral palsy - Appointed as Rehbar-e-Taleem(Teaching
        Guide) - Writ petition filed challenging the appointment- High
    D   Court summoning the teacher in Court, and on its
        assessment, directing the education authorities to identify
        some other suitable job to accommodate him - Services of
        the appointee as Rehbar-e-Taleem disengaged - HELD: The
        instant case is not one of the normal cases relating to a claim
    E   for employment, but involves a beneficial piece of legislation
        providing for reservation of 1% vacancies for the persons with
        'locomotor disability' which is the result of cerebral palsy -
        Section 31 lays down that aids and appliances be provided
        to such persons - In the instant case, the results achieved
        by the appointee in different classes were exceptionally good
    F   - High Court dealt with the matter mechanically without even
        referring to the provisions of the Act, and chose a rather
        unusual method in assessing the capacity of the appointee
        to function as a teacher by calling him to appear before the
        Court and to respond to questions put to him, in spite of the
    G   fact that the Committees constituted to assess his
        performance as a teacher found him suitable - Orders of High
        Court and Chief Education Officer disengaging the appointee
        from functioning as Rehbar-e-Taleem set aside - Authorities
        directed to allow him to resume his duties with continuity of
    H                                  250
   SYED BASHIR-LID-DIN QADRI v. NAZIR AHMED             251
                 SHAH & ORS.
service from the date of his disengagement - Doctrine of       A
reasonable accommodation - Social justice - Practice and
procedure.

    The appellant, a person suffering from cerebral palsy,
was appointed as "Rehbar-e-Taleem" (Teaching Guide)            8
under the provisions of s.22 of the Jammu and Kashmir
Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1998.
Respondent no. 1 filed a writ petition before the High
Court challenging the appointment of the appellant. The        C
single Judge of the High Court quashed the appointment
of the appellant and directed the Director of School
Education to identify a suitable job to accommodate the
appellant. The High Court was informed that the appellant
could be considered for appointment to the vacant posts
of Library Bearer or the Laboratory Assistant.                 D
Consequently, an order disengaging the appellant from
the post of Rehbar-e-Taleem was passed. The Letters
Patent Appeal filed by the appellant having been
dismissed by the High Court, he filed the instant appeals.
                                                               E
    Allowing the appeals, the Court

     HELD: 1.1. 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     F
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. [Para 28] [267 -B-C]
                                                               G
     1.2. The object of the Jammu and Kashmir Persons
with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1998 is to provide equal
opportunities, care, protection, maintenance, welfare,
training and rehabilitation to persons with disabilities.      H
   252     SUPREME COURT REPORTS               [2010] 3 S.C.R.


A Section 2(d)(v) recognizes "locomotor disability" which
  is the result of cerebral palsy. Section 22, which requires
  the Government and local authorities to formulate
  schemes for ensuring employment of persons with
  disabilities, reserves 1% of the vacancies available for
B persons suffering from locomotor disability or cerebral
  palsy. Chapter VI of the Act makes provision for
  affirmative action and s. 31 thereof requires the
  Government to provide aids and appliances to persons
  with disabilities. While a person suffering from cerebral
c 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. [Para 29, 30 and
D 31) [267-C-D; 268-A-C]
       1.3. 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
E 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 be no reason for a rigid
F 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. [Para
G 32) [268-D-F]                          .     .

       1.4. It is also to be noted that the results achieved by
  the appellant in the different classes were extremely good;
  his appearance and demeanour in school had been
  highly appreciated by the Committee which was
H constituted pursuant to the orders of the High Court to
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED               253
                SHAH & ORS.
assess the appellant's ability in conducting his classes.       A
An earlier Committee consisting of the Joint Director of
Education and the Chief Education Officer had also
reported that the appellant was found reading and talking
well and he was able to teach. Apart from the fact that the
appellant is a victim of cerebral palsy, there is nothing on    B
record to show that he had not been performing his
duties as Rehbar-e-Taleem efficiently and with dedication.
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          c
adopted a view which was not compatible therewith.
[Para 33, 34 and 35) [268-F-H; 269-B; 269-E; 269-F-G]

     2.1. The High Court has dealt with the matter
mechanically, without even referring to the 1998 Act or
even the provisions of ss.22 and 27 thereof. Instead, the D
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
the questions put to him. The High Court appeared to be
insensitive to the fact that as a victim of cerebral palsy, E
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. The intimidating atmosphere in which the
appellant found himself must have triggered a reaction F
which made it difficult for him to respond to the questions
put to him. [Para 35] [269-G-H; 270-A-B]

    2.2. Since the Committees constituted to assess his
performance as a teacher notwithstanding his disability         G
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. The approach of the local authorities, as well
as the High Court, was not in consonance with the               H
                ..
                '
    254      SUPREME COURT REPORTS              [2010] 3 S.C.R.


A 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 and that of the Chief
  Education Officer, disengaging the appellant from
B functioning as Rehbar-e-Taleem, cannot, therefore, be
  sustained and are set aside. The authorities are directed
  to allow the appellant to resume his functions as Rehbar-
  e-Taleem in the school concerned, with continuity of
  service from the date of his disengagement as Rehbar-
C e-Taleem. The period during which the appellant was
  disengaged from his service as Rehbar-e-Taleem till the
  date of his resuming duty shall not be treated as break
  in service and he shall be entitled to all notional service
  benefits for the said period. (Para 36 and 37) (270-C-E;
D 270-F-H]
        CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
    2281-2282 of 2010.

      From the Judgment & Order dated 7.9.2007 and dated
E 21.11.2007 of the High Court of Judicature for Jammu &
  Kashmir, Single Bench at Srinagar in Division Bench SWP No.
  103 of 2007 and LPA No. 204 of 2007.

       Colin Gonslaves, Vijay Hansaria, Jayshree Satpute, Jyoti
  Mendiratta, G.M. Kaswoosa, Sneha, Ashok Mathur, Anis
F Suhrawardy, Shamama Anis, S. Mehdi Emam, Tabraz Ahmad
  for the appearing parties.

          The Judgment of the Court was delivered by

G         ALTAMAS KABIR, J. 1. Leave granted.

       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
H completed his graduation under the University of Kashmir and
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                     255
       SHAH & ORS. [ALTAMAS KABIR, J.]
was awarded a B.Sc. degree by the University on 28th                   A
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
                                                                       8
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       C
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         D
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           E
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 Resp0ndent No.1 herein, Nazir Ahmad Shah, sent a letter
to the Director of School Education, Srinagar, objecting to the        F
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           G
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.                                                                  H
    256          SUPREME COURT REPORTS                [2010) 3 S.C.R.


A       6. During the pendency of the writ petition the Jam mu 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
B 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 Acf'). Section 22 of
c 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 :

          (i)      blindness or low vision - 1%;
D
          (ii)     hearing impairment - 1%;

          (iii)    locomotor disability or cerebral palsy, in the posts
                   identified for each disability - 1%.

E      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
F 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
G 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
H rehabilitation of the physically handicapped, the Committee
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                   257
       SHAH & ORS. [ALTAMAS KABIR, J.]
was of the view that the appellant be given a chance and that        A
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            B
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                  c
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            D
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-            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          F
Neurology in the Sher-a-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   G
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            H
    258     SUPREME COURT REPORTS                [2010] 3 S.C.R.


A  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
B directed the Director of School Education, Kashmir, to identify
   a suitable job where the appell~nt could be accommodated to
   enable him to earn a suitable living.

       11. Aggrieved by the said order of the learned Single
C Judge, the appellant filed LP.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
D 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
E 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,
F 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
G post of Rehbar-e-Taleern.

         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
H
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                    259
       SHAH & ORS. [ALTAMAS KABIR, J.]
appellant preferred the Special Leave Petition (now Appeal)          A
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        B
locomotor disability or cerebral palsy was also identified.

      13. Appearing in support of the Appeal, Mr. Colin
Gonsalves, learned Senior Advocate, submitted that once the
State Government with the help of an expert Committee
identifies teaching posts to be suitable for appointment of          C
candidates suffering from cerebral palsy in terms of section 21
of the 1998 Act, then it would not be open for someone to
contend that a person suffering from cerebral palsy, who is
unable to write and whose speech is somewhat slurred, should
be disqualified from teaching. Mr. Gonsalves submitted that the      D
main characteristic of a person suffering from cerebral palsy
is his inability to write and speak in a fluent manner. Despite
such handicap, the Legislature thought it fit to accommodate
1% of the vacancies available for appointment of a person
suffering from the said disease. Mr. Golsalves urged that by         E
holding the disabilities, which constitute the effects of cerebral
palsy, against the appellant, the respondents were negating the
very object of Section 22 of the 1998 Act.

     14. Mr. Gonsalves also urged that without challenging the       F
provisions of Section 22 of the 1998 Act, which provided for
reservation of 1% of the vacancies for persons suffering from
cerebral palsy and the subsequent Notification issued in
pursuance thereof, it was not open to the respondents to
question the appellant's appointment as Rehbar-e-Taleem. Mr.         G
Gonsalves submitted that the provisions of Section 22 of the
1998 Act not having been challenged, any challenge to the
appointment of a person with such a medical disability would
not be sustainable. Mr. Gonsalves submitted that apart from the
above, it would also have to be shown that the person
                                                                     H
    260      SUPREME COURT REPORTS                   [2010] 3 S.C.R.


A appointed was completely incapable of imparting education
  because of his disablements and that retaining him in the
  teaching post would prejudice the students. Mr. Gonsalves
  pointed out that, on the other hand, the Joint Director and the
  Chief Education Officer, Srinagar, assessed the appellant's
B ability to teach and noticing that he was unable to write, still felt
  that he should be given a chance and that his appointment as
  Rehbar-e-Taleem would help restore a sense of self-esteem in
  him. In this case, the Block Medical Officer, Tral, also issued a
  certificate in favour of the appellant on 14.3.2007, in which the
c words "clinically he is fit for any Govt. job" have been n 1entioned.
  Of course, the genuineness of the said certificate has been
  questioned by the respondent and it has been submitted on the
  basis of a supporting fetter from the Block Medical Officer, Trial,
  that the aforesaid phrase had not been written by him but had
  been inserted later into the certificate after the same had been
D issued.

          15. ,Mr. Gonsalves then submitted that the submission
    made on behalf of the Respondent No.1 that the post of
    Rehbar-e-Taleem had not been mentioned as reserved in the
E   Scheme and would not, therefore, come within the scope of
    Section 22 of the 1998 Act, was not tenable, since it is only
    when exemption is granted under the proviso to Section 22 by
    the State Government that the reservation provision would
    cease to exist. No exemption having been sought for in the
F   present case, it could not be argued that the provisions for
    reservation in Section 22 would not apply to the Scheme
    relating to the appointment of persons as Rehbar-e-Taleem. It
    was submitted that the general principle relating to disability law
    deals with substance and not the nomenclature for any particular
G   post and the same would include the nomenclature used for
    other jobs and posts having identical functions. Mr. Gonsalves
    submitted that what was of importance in giving effect to the
    provisions of the 1998 Act is the principle of reasonable
    accommodation as provided for in Section 27 of the aforesaid
H   Act which deals with the Scheme for ensuring employment for
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                    261
       SHAH & ORS. [ALTAMAS KABIR, J.]
persons with disabilities. Mr. Gonsalves urged that the object        A
of the 1998 Act is to try and rehabilitate and/or accommodate
persons suffering from physical disabilities to have equal
opportunities of employment in keeping with their physical
disabilities so that they were not only able to provide for
themselves but were also able to participate in mainstream            B
activity and live a life of dignity in society.

     16. Mr. Gonsalves submitted that the problem of
 rehabilitating disabled persons was not special to India alone,
but was common to most of the other countries as well. He
submitted that being conscious of the problem, most countries         C
had enacted laws to make provision for the rehabilitation of
persons with disabilities by taking recourse to the doctrine of
reasonable accommodation to enable a handicapped person
to use his or her abilities with the help of aids and/or
adjustments. Referring to the decision in Appeal No.447 August        D
Term 1994 of the United States Court of Appeal for the Second
Circuit in the case of Kathleen Borkowski vs. Valley Central
School District, Mr. Gonsalves pointed out that the central
question in the said appeal was whether the teacher with
disabilities, whose disabilities directly affected her capacity to    E
perform her job, necessitated that her employer provide a
teacher's aide as a form of reasonable accommodation under
the relevant legal provisions. In the said case, on account of a
motor vehicle accident, the plaintiff Kathleen Borkowski had
suffered major head trauma and sustained serious neurological         F
damage and though her condition improved significantly after
years of rehabilitative therapy, she did not recover completely
resulting in continuing difficulties with memory and
concentration. In addition, her balance, coordination and
mobility continued to show the effects of her accident. Ms.           G
Borkowski obtained employment as Library Teacher with the
School District on a probationary term, but ultimately because
of her failure to effectively control her class, the Superintendent
of the School District decided that Ms. Borkowski's tenure
should not be exte,ped. Claiming discrimination, Ms.                  H


                        •
    262        SUPREME COURT REPORTS              [2010] 3 S.C.R.


A Borkowski challenged the said decision before the United
  States District Court for the Southern District of New York which
  granted summary judgment in favour of the defendant Valley
  Central School District holding that having someone else to do
  a part of her job may sometimes mean eliminating the essential
B functions of the job, at other times providing an assistance to
  help the job may be an accommodation that does not remove
  an essential function of the job from the disabled employee. On
  such finding, the Court of Appeals set aside the order of the
  District Court and remanded the matter to the District Court for
c a fresh decision upon taking into consideration the doctrine of
  reasonable accommodation to enable a teacher to perform his/
  her functions as a teacher, which he/she was otherwise eligible
  and competent to perform.

       17. Several other decisions on the same lines were also
D supplied by Mr. Gonsalves which only repeated what had been
  said in Kathleen Borkowski's case.

        18. Mr. Gonsalves submitted that in the instant case the
  High Court had adopted a very unusual procedure in
E disqualifying the appellant and holding him unfit for teaching,
  despite the certificate given by the Headmaster of the School
  that the appellant had satisfactorily completed one year's
  service during which period he had conducted himself and the
  class assigned to him with efficiency. The said certificate dated
F 8.11.2007 indicates that he attended his classes regularly and
  for the academic year 2006-07 he had achieved the following
  results:

          S.No.     Class       Subjects      Pass Percentage

G         1.        8th         Science       100%

          2.        6th         Science       100%

          3.        4th         Science       83%

H         19. Mr. Gonsalves submitted that during the pendency of
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                    263
       SHAH & ORS. [ALTAMAS KABIR, J.]
the proceedings before the High Court, by an interim order           A
dated 4th June, 2007, the Court had directed a Committee to
be formed comprising of the Director, School Education and
Head of the Neurological Department, SKIN, to examine the
appellant and to report on :
                                                                     B
      "(a)   What is the nature and extent of petitioner's
             handicap whatever;

      (a)    Whether with said handicap he could discharge the
             normal duties of teacher in a Government school."
                                                                     c
      20. The report as submitted indicated that the appellant
was suffering from Cerebral Palsy which affected his speech
 and writing as a result whereof he could not perform the job of
 a teacher. Mr. Gonsalves submitted that on the basis of the said
 report the High Court adopted the novel procedure of                D
summoning the appellant to satisfy itself as to the appellant's
condition and as to whether he could discharge his functions
as a teacher. Based on its own assessment, the High Court
found the appellant to be ineligible for appointment in a
teaching job. Mr. Gonsalves submitted that at the time of            E
questioning by the'High Court, the appellant was not
represented by any one and it is not unnatural and/or unlikely
that a person, who was already suffering from a disablement
such as Cerebral Palsy which affected his speech, was further
intimidated which rendered him unable to respond fluently to
the questions put by the Court.                                      F

     21. Mr. Gonsalves submitted that taking all other things into
account, and, in particular the report of the Expert Committee
appointed pursuant to the order dated 4.6.2007 of the High
Court, which was of the view that the speech of the appellant        G
is comprehensible up to 80% to 90% as indicated by the
students themselves and the further certificate given that the
appellant could handle lower classes easily even if the roll is
big and where the teaching is done through models, the High
Court had erred in rejecting the appellant's case for                H
    264     SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A appointment as Rehbar-e-Taleem. Mr. Gonsalves urged that the
  Committee had noticed that the appellant was well-dressed and
  had a proper sense of self-confidence as compared to the
  other staff and that the attitude of the appellant seemed to have
  a positive effect on the students. Mr. Gonsalves urged that the
8 High Court had erred in understanding the object of the
  provisions of the 1998 Act in relation to persons with
  disabilities, such as the appellant before us. Mr. Gonsalves
  submitted that the order of the High Court lacked sensitivity and
  understanding and the same was contrary to the object for
C which the 1998 Act was enacted, and was, therefore, liable to
  be set aside.

        22. The submissions made on behalf of the appellant were
   strongly opposed by Mr. Vijay Hansaria, learned Senior
  Advocate appearing for the Respondent No.1, Nazir Ahmed
D Shah, who was the. writ petitioner before the High Court. Mr.
  Hansaria submitted that admittedly the Appellant was suffering
  from cerebral palsy, but the extent of disablement on account
  thereof made him unfit for appointment as Rehbar-e-Taleem,
  which fact was corroborated by the certificate issued by the
E Head of the Department of Neurology, Sher-e-Kashmir Institute
  of Medical Sciences, dated 6th July, 2007, in which it was
  opined that the Appellant was suffering from cerebral palsy with
  significant speech and writing difficulties and that with such a
  handicap, it would be difficult for him to perform the duties of a
F teacher. Added to the said disability was the inability of the
  Appellant to speak fluently. It was submitted that without being
  able to write on the blackboard, it was next to impossible for a
  primary school teacher to teach children at the primary stage.
  Reference was made to the report of the Committee which had
G been constituted pursuant to the order passed by the High Court
  on 4th June, 2007, to examine the working of the Appellant in
  the school. Apart from indicating that he was able to make
  himself understood to the students, who seemed to understand
  his teachings despite his speech impediments, the Committee
  also indicated that the Appellant was unable to take chalk in
H
    SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                    265
        SHAH & ORS. [ALTAMAS KABIR, J.]
hand and write anything on the blackboard or draw any diagram,         A
which was essential and vital for making students understand
the lesson. It was the view of the Committee that use of the
blackboard was a vital requirement for making students
 understand the lesson and this was a serious handicap which
 confronted the Appellant since the process of teaching was            B
 incomplete without the use of the blackboard. Mr. Hansaria
pointed out that in the said Report it had also been stated that
 in order to overcome the difficulty of not being able to write, the
Appellant requested the students to write the lessons on the
blackboard, but, of course, a student could not be a substitute        c
for a teacher in the matter of drawing diagrams and writing
lessons on the blackboard. Accordingly, the Committee felt
concerned as to whether it would be possible for the Appellant
to be able to hold a big class and though in the final analysis
the Appellant seems to be intelligent and well-versed with the
                                                                       0
subject taught by him, which would have made him a good
teacher, his speech and writing impediments were in his way.
Mr. Hansaria referred to the disability certificate issued by the
Chief Medical Officer, Pulwama, on 17th December, 2006,
showing the Appellant to be suffering from dystonic cerebral
palsy on account of which he was severely disabled physically          E
to the extent of 60%.

     23. Mr. Hansaria urged that the physical impairment of the
Appellant was sufficient to make him ineligible for being
continued as Rehbar-e-Taleem since it was against the                  F
interests of the students.

     24. In addition to the above, Mr. Hansaria expressed grave
doubts about the authenticity of the certificate said to have been
issued by the Block Development Officer, Tral, holding the
Appellant to be clinically fit for any Government job while finding    G
him physically handicapped due to cerebral palsy. Mr. Hansaria
referred to the letter written by the Block Development Officer
concerned in which he denied having written the last sentence
in the certificate and that the same was a forgery.
                                                                       H
    266      SUPREME COURT REPORTS                   [2010) 3 S.C.R.


A        25. Mr. Hansaria submitted that on the aforesaid grounds,
    the order passed by the High Court did not warrant any
    interference and the Appeal was liable to be dismissed.

          26. Mr. Anis Suhrawardy, who appeared for the State of
8   Jammu and Kashmir, submitted that the State Government had
    acted in the best interest of the students on the basis of the
    reports received from different Committees appointed both by
    the High Court and under the orders of the High Court for
    evaluating the performance of the Appellant during the period
    of his appointment as Rehbar-e-Taleem. Mr. Suhrawardy
C   submitted that while the appellant's performance was found to
    be reasonably good, his physical disabilities were of such
    nature that they interfered with his performance as a teacher.
    The said view had been expressed both by the medical
    authorities as well as the Committee consisting of Senior
D   Officers which had made an on the spot assessment of the
    appellant's ability to perform his duties as a teacher. Even
    though holding that the appellant was handling his classes
    competently and his general demeanor and appearance
    conveyed a positive message to the others in the school, his
E   primary function as a teacher was compromised on account of
    his inability to write and his lack of complete clarity of speech.

       27. Mr. Suhrawardy submitted that while it is true that the
  1998 Act had provided for a 1% reservation for people suffering
F from locomotor disorders and/or cerebral palsy, such policy as
  contained in Section 22 of the Act could not have contemplated
  the appointment of a person with such disabilities as impaired
  his essential functioning as a teacher. Accordingly, acting on
  the advice of the Expert Committee, the State Government had
G no other option but to disengage the appellant from functioning
  as a Rehbar-e-Taleem, but, at the same time, identified another
  post in which he could be accommodated.

       28. Having regard to the nature of the problem posed in
  this appeal in relation to the Jammu and Kashmir Persons with
H Disabilities (Equal Opportunities, Protection of Rights and Full
   SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                    267
       SHAH & ORS. [ALTAMAS KABIR, J.]
Participation) Act, 1998, we have given our anxious                  A
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.abeneficial        B
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.
                                                                     c
      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      D
also been separately defined in Section 2U) to mean disability
of the bones, joints or muscles leading to substantial restriction
of the movement of the limbs or any form of cereb, al 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     E
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         F
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             G
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.
                                                                     H
    268      SUPREME COURT REPORTS                [2010] 3 S.C.R.


A        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
B         provide aids and appliances to persons with disablities."

       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
C 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
D 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
E 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
F 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
G 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
H as follows :-
    SYED BASHIR-UD-DIN QADRI v. NAZIR AHMED                     269
        SHAH & ORS. [ALTAMAS KABIR, J.]
     "4. The candidate (petitioner) was called to the office in         A
     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         8
     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 ReT
     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     C
     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             D
 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                   E
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      F
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         G
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      H
    270     SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A 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
B 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
C 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
D 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.

         37. The appeals, accordingly, succeed and are allowed.
E The impugned order of the High Court and that of the Chief
   Education Officer, Pulwama, dated 19th January, 2008,
   disengaging the appellant from functioning as Rehbar-e-
 - Taleem, are hereby set aside. Consequently, the authorities are
   directed to allow the appellant to resume his functions as
F Rehbar-e-Taleem in the Middle School, Kanjinag, immediately
   upon communication of this order with continuity of service from
   the date of his disengagement as Rehbar-e-Taleem. The period
   during which the appellant was disengaged from his service as
   Rehbar-e-Taleem till the date of his resuming duty in such post
G shall not be treated as break in service and he shall be entitled
   to all notional service benefits for the said period.

    RP.                                         Appeals allowed.