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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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.

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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  

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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  

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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  

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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  

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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  

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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,  

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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  

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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  

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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  

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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  

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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”  

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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.   

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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  

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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  

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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  

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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  

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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  

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  

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            

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