Syed
Bashir-Ud-Din Qadri Vs. Nazir Ahmed Shah & Ors. [2010] INSC 184 (10 March
2010)
Judgment
REPORTABLE
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) Syed
Bashir-ud-din Qadri .. Appellant Nazir Ahmed Shah & Ors. .. Respondents
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 completed his 2 graduation under the University of
Kashmir and was awarded a B.Sc. degree by the University on 28th 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 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 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 3 of four candidates 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 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 Respondent No.1 herein, Nazir Ahmad Shah, sent a
letter to the Director of School Education, Srinagar, objecting to the
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 No.363 of 2005, before the 4
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.
6.
During the pendency of the writ petition the Jammu 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
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 Act").
Section 22 of the said Act, which deals with reservation of posts, provides 5
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%;
(ii)
hearing impairment - 1%;
(iii)
locomotor disability or cerebral palsy, in the posts identified for each
disability - 1%.
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 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 6 appellant's claim 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
rehabilitation of the physically handicapped, the Committee was of the view
that the appellant be given a chance and that 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 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 7 Officer, Awantipora,
on 27th November, 2006 for engaging the 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 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-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 Neurology in the Sher-e-Kashmir 8
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 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
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 directed
the Director of School Education, Kashmir, to identify 9 a suitable job where
the appellant could be accommodated to enable him to earn a suitable living.
11.
Aggrieved by the said order of the learned Single Judge, the
appellant filed L.P.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 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 posts for the appellant by the
Chief Education 10 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, 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 post of Rehbar-e-Taleem.
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
appellant preferred the Special Leave Petition (now Appeal) basically on the
ground that the same was contrary to the 11 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 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
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
main characteristic of a person suffering from cerebral palsy is his inability
to write and speak in a 12 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 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 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. 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 13
disability would not be sustainable. Mr. Gonsalves submitted that apart from
the above, it would also have to be shown that the person 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 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 words "clinically he
is fit for any Govt. job" have been mentioned. 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 letter from 14 the Block Medical
Officer, Tral, that the aforesaid phrase had not been written by him but had
been inserted later into the certificate after the same had been 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 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 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 15 with substance and not the nomenclature for
any particular 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 Act which deals with the Scheme for ensuring employment for persons
with disabilities. Mr. Gonsalves urged that the object 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 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 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 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 perform her job, necessitated that her employer provide a teacher's
aide as a form of reasonable accommodation under 17 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 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. 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 extended. Claiming discrimination, Ms.
Borkowski challenged the said decision before the United States District Court
for the Southern District of New York which granted summary judgment in favour
18 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
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 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 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 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 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
1. 8th
Science 100%
2. 6th
Science 100%
3. 4th
Science 83%
19.
Mr. Gonsalves submitted that during the pendency of the
proceedings before the High Court, by an interim order dated 4th June, 2007,
the Court had directed a Committee to be formed comprising of the Director,
School Education and Head of the 20 Neurological Department, SKIN, to examine
the appellant and to report on :
"(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."
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
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 questioning by
the High Court, the appellant was not represented by any one and it is 21 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.
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 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 appointment as Rehbar-e-Taleem. Mr. Gonsalves urged that the Committee had
noticed that the appellant was well-dressed and had a proper sense 22 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 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 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 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 23 disablement on account thereof made him
unfit for appointment as Rehbar-e-Taleem, which fact was corroborated by the
certificate issued by the 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 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 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
24 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 hand and write anything on the blackboard or draw any
diagram, 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
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 for a teacher in the matter of drawing diagrams and writing lessons
on the blackboard. Accordingly, 25 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 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
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 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 26
Block Development Officer, Tral, holding the Appellant to be clinically fit for
any Government job while finding 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.
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 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 27 the period of his
appointment as Rehbar-e-Taleem.
Mr.
Suhrawardy 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
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 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 from locomotor disorders
28 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 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 Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1998, we have
given our anxious 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 29 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.
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 also been separately
defined in Section 2(j) to mean disability of the bones, joints or muscles
leading to substantial restriction of the movement of the limbs or any form of
cerebral palsy. A "person with disability"
30 has
been defined in Section 2(p) to mean a person suffering from not less than 40%
of any disability 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 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 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.
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 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 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 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 32
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, 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 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 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 33 Director of Education and the Chief Education Officer, Srinagar,
wherein it was observed as follows :- "4. The candidate (petitioner) was
called to the office in 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 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 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 19th January, 2008, goes against the grain of the 1998
Act. Apart from the fact that the appellant is a victim of cerebral 34 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 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 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 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 35 respond to questions put to him. The High Court appeared to
be insensitive to the fact that as a victim of 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.
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 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 36 consonance with the 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 cannot,
therefore, be sustained and has to be set aside.
37.
The appeals, accordingly, succeed and are allowed. 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 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 37 duty in such post shall not be treated as
break in service and he shall be entitled to all notional service benefits for
the said period.
________________J. (ALTAMAS KABIR)
________________J.
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