There are a sheer variety of public sector jobs which are, by law, identified as suitable for persons with disabilities, in which 4% reservation must be provided. These include posts of engineers, doctors, accountants, law officers, scientists and academics. Now, the Delhi High Court is examining whether a person with bipolar affective disorder, a psychosocial disability, is eligible to be appointed as a judge pursuant to being successful in the Delhi Judicial Services examination. By an interim order, the court directed that a vacancy in the post of judge to be kept reserved for the petitioner pending the final outcome of the case.
In the case of Bhavya Nain vs. Delhi High Court Administration, the petitioner, a person with bipolar affective disorder, challenged the denial of his appointment to the post of judge in the Delhi Judicial Services. Bipolar affective disorder is classified as a mental illness and persons so affected are eligible for reservation in public employment under the 2016 Disabilities Act. He had appeared for and was successful in the Delhi Judicial Services Examination, held periodically for the recruitment of civil judges and magistrates into the judiciary in Delhi. However, the administration denied him appointment, on the stated ground that his disability certificate, while assessing his disability at 45%, also noted that his condition was likely to improve. According to the administration, this meant that his disability was not permanent, and therefore he could not be appointed to the post of judge against a reserved vacancy.
Does variation in the degree to which a person with mental or intellectual disability is affected, mean her disability is not permanent?
By its order dated 29.05.2019, the Division Bench of the Delhi High Court expressed a prima facie opinion that the stand of the administration was devoid of merit. The court noted that there was nothing in the disability certificate that stated his disability was not permanent, and also opined that just because his condition may improve, it does not follow that the disability itself was likely to completely disappear. By an interim order, the court directed that a vacancy in the post of judge to be kept reserved for the petitioner pending the final outcome of the case, which is currently pending in the court.
The stand taken by the administration is curious, and begs the question whether it is an ostensible position masking a deeper bias against persons with mental illness. Disability certificates issued by the authorities have provision for noting whether the disability is progressive or not, and whether or not the disabled person’s condition is likely to improve. The purpose is only to indicate whether a reassessment of the disability is necessary after a specified period of time, rather than to establish if a disability is permanent or not. Indeed, the 2016 Act does not classify disabilities as temporary or permanent. The conditions that are specified as disabilities under the Act are disabling enough to warrant the positive measures mandated by the Act. There may be variation in the degree to which persons with intellectual and mental disabilities are affected, depending on their response to treatment and therapy. It is nowhere provided in the 2016 Disabilities Act or the rules there under that a person is to be denied benefits merely because her condition may improve.
The questions that arise in this case:
- Did the administration appreciate that the 2016 Disabilities Act mandates job reservation for persons with mental illness?
- Was the administration aware that there may be variation in the degree to which persons with intellectual and mental disabilities are affected , depending on treatment and therapy, but this could not be a ground for denial of job reservation?
- Was the administration biased in its view of whether the petitioner, a person with bipolar affective disorder, could serve as a judge?