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

Vs.

Nazir Ahmed Shah & Ors. .. Respondents

J U D G M E N T

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

1

graduation under the University of Kashmir and was

awarded a B.Sc. degree by the University on 28

th

February, 2004.

3.On 28

th

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

2

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 16

th

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

3

Jammu and Kashmir High Court in Srinagar on 25

th

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 21

st

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

4

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 31

st

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 15

th

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

5

appellant’s claim for appointment as Rehbar-e-

Taleem. The said Committee submitted its report on

13

th

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 25

th

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

6

Officer, Awantipora, on 27

th

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 1

st

February, 2007, Mr. Nazir Ahmed Shah,

the candidate who was placed in the 4

th

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

7

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 17

th

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 17

th

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 7

th

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

8

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 22

nd

October, 2007. During the

pendency of the Letters Patent Appeal on 8

th

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 21

st

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

9

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 3

rd

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

19

th

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

10

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

11

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

12

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

13

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

14

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.

15

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

16

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

17

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

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. 8

th

Science 100%

2. 6

th

Science 100%

3. 4

th

Science 83%

19.Mr. Gonsalves submitted that during the

pendency of the proceedings before the High Court,

by an interim order dated 4

th

June, 2007, the Court

had directed a Committee to be formed comprising

of the Director, School Education and Head of the

19

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

20

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

21

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

22

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 6

th

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 4

th

June, 2007, to examine the working

of the Appellant in the school. Apart from

indicating that he was able to make himself

23

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,

24

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 17

th

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

25

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

26

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

27

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

28

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”

29

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

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

31

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

32

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 19

th

January, 2008, goes

against the grain of the 1998 Act. Apart from the

fact that the appellant is a victim of cerebral

33

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

34

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

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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

19

th

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

36

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.

(CYRIAC JOSEPH)

New Delhi

Dated: 10.03.2010

37