Punjab and Haryana High Court has quashed the sacking order issued by the District Judge Karnal against a Clerk with disability (Locomotor disability due to Cerebral Palsy).
Is this matter, the petitioner - an educated and brilliant young man with disability had on his own merit cleared the recruitment test to the post of Clerk in the District & Sessions Court, Karnal, Haryana, India. The petitioner cleared written test, general knowledge and the proficiency test in operation of computers and also the computer practical test and personal interview. The competent medical authority had also declared the petitioner as a case of cerebral palsy (100% handicapped) and fit for office work under the handicapped category before joinning the government service. Thus out of the 71 advertised posts, only 63 candidates were selected and the petitioner, as per his merit, was placed at Sr.No. 26. and accordingly appointed to the post of Clerk on 23.10.2010.
However, within two months of joining the District & Sessions Judge, Karnal, vide an order dated 5.2.2011 terminated the services of the petitioner stating therein that his services are no longer required. The stand taken by the respondent was that the services of the petitioner have been terminated as per the terms of his appointment letter, according to which the petitioner was appointed purely on temporary basis and was kept on probation for a period of two years. As per Clause 4 of the appointment letter, the services of the petitioner could be terminated at any time without assigning any reason and without prior notice. As the petitioner was unable to perform any kind of office work with his own hands and of his own, he being suffering from cerebral palsy, he could not be continued in service. As per the respondents, petitioner is unable to perform any work on the computer and, therefore, faced with this situation, the services of the petitioner have been dispensed with as per the terms of his appointment without casting any stigma on him. The respondent also submitted that the officials in the office of District and Sessions Judge have been helping the petitioner at every step and at every moment still he was unable to do any office work and, thus, respondent was left with no option but to take a decision to dispense with the services of the petitioner in the interest of office administration.
While referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy". The Hon'ble SC in the above case had laid down that the beneficial piece of social legislation is to enable persons with certain forms of disability to live a life of purpose and human dignity. Such type of cases have to be handled with sensitivity and not with bureaucratic apathy and when person has been found to be fit and suitable for a post, which has been identified and reserved for a particular category, the employee cannot be terminated and efforts be made to provide a congenial atmosphere to the said employee keeping in view his disability and mechanical orders should not be passed in a routine manner.
The court concluded that the "petitioner may be slow in handling the computer but could perform the duties on a computer and can be assigned such a task, which can be handed over to him in the office primarily relating to computer. The detail of the Sections where the work is done on computers, has been given in the replication, which indicates that there are plenty of places where the petitioner can easily be accommodated where he can perform his duties as a Clerk in the light of his qualifications while keeping in view his capacity, capability and competence. With same support, encouragement and cooperation, this Court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit."
Click here for full Judgement: : CWP No. 3087 OF 2011 (Ritesh Sinha VERSUS State of Haryana and others)
Learnings from the judgement:
This case indicates the mindset of the authorities who attach incapacity to the disabilities. The residual abilities are not looked at. What is focussed on is what is lacking in the individual. Despite a favourable order reinstating the petitioner, I as a disability rights activist find two major issues with the judgement:
(a) It is silent on the issue that despite clearing the test on his own merit and standing 26th in the order of merit out of 63 selected candidates, why was the petitioner adjusted against the disability quota. By adjusting him so, the respondents have taken away the employement opportunity from one prospective person with disability. And the worst.. it went without check! The Employer is happy having appointed one in the disability quota and the employee is least bothered against what quota he is getting in since his purpose is served. There is no accountability and checks to stop this menace!
(b) The High Court did a blunder by calling the petitioner to be examined again with regard to his feasibility of performing appropriate office job in the High Court itself and then assigning the Registrar (Administration) to check the performance & ascertain as to whether the petitioner was in a position to operate the computer, give appropriate commands etc. and submit a report. The court in this case couldn't have taken over the duties of the selelection committee who had already found him fit for being appointed on the said post of clerk.
Congratulations to my colleague Adv Veena Kumari of HRLN Chandigarh who took up this case and ensured that it reached its logical conclusion.
Media Coverage by the Tribune
Tribune News Service
Chandigarh, August 6
In a first, the Punjab and Haryana High Court took upon itself the task of testing the abilities of a candidate suffering from spastic cerebral palsy. It has also called upon the employers to shed the “mechanical approach” and appreciate the situation of a “disabled person” from the human rights perspective.
The call by Justice Augustine George Masih came on a petition filed by Ritesh Sinha against Haryana and other respondents. Suffering from spastic cerebral palsy, he had challenged the order passed by Karnal District and Sessions Judge on February 5, 2011, terminating his services as a clerk.
Challenging the orders, counsel for the petitioner Veena Kumari submitted that the respondents “were insensitive to the difficulties a disabled person is faced with”.
During the course of hearing, the Karnal District and Sessions Judge submitted a report stating that the petitioner could not even start a computer. He could not even move a paper from one place to another. After the petitioner’s counsel disputed the report, the High Court, vide a September 28, 2012, order directed that “it would be appropriate and also in the interest of the petitioner himself to be examined with regard to his feasibility of performing an appropriate office job in the High Court itself”.
In his report, Harnam Singh Thakur, High Court Registrar (Administration), made it clear that the petitioner could do some work on the computer, though slowly.
Referring to the Supreme Court judgment in Syed Bashir-ud-din Qadri's case, Justice Masih asserted that “such cases have to be handled with sensitivity and not with bureaucratic apathy….
Quashing the order, Justice Masih added: “With support, encouragement and cooperation, this court is quite sure that the petitioner would be able to perform his duties and the object of the Disability Act would be given effect to in true spirit”.