VIPIN SANGHI, J.

1. The petitioner has preferred the present writ petition to assail the notice/ result dated 21.05.2019 published by the Registrar General, Delhi High Court, whereby the candidature of the petitioner for Delhi Judicial Services-2018 (in short, 'DJS 2018') under the category of Persons with Disabilities (PwD) was rejected on account of his mental disability not being found to be permanent W.P.(C.) No.5948/2019 Page 1 of 50 in nature. For this, the Disability Certificate issued by the All India Institute of Medical Sciences, Delhi (in short 'AIIMS') has been relied on by the respondent.

2. Briefly stated that the facts of the present case are as follows:

3. The respondent Delhi High Court issued a public notice on 14.11.2018, later amended vide Corrigendum dated 19.11.2018, inviting online applications from eligible candidates for filling up 147 vacancies for DJS- 2018. Out of the said 147 vacancies, 6 seats were reserved for PwD. Out of these 6 seats, 2 seats were reserved for Persons having autism, intellectual disability, specific learning disability, mental illness and multiple disabilities as mentioned under clauses (a) to (d) of Section 34(1) of the Rights of Persons with Disabilities Act, 2016 (RPwD Act ), including deaf-blindness. The aforesaid Corrigendum reads as follows:

(emphasis supplied)

4. The Delhi High Court issued Instructions annexed with the Admit Card for the Delhi Judicial Service Examination-2018, the relevant portion whereof reads as under:

5. Accordingly, the petitioner approached the All India Institute of Medical Sciences (AIIMS), New Delhi where he was examined and the Disability Certificate for Mental Illness - Bipolar Affective Disorder i.e. BPAD was issued to him in the prescribed form. The Disability Certificate in question which was issued on 12.12.2018 is valid for a period of 5 years, i.e. till 12.12.2023.

6. The petitioner - a law graduate applied for the DJS 2018 under the PwD category (Autism, intellectual disability, specific learning disability and mental illness and Multiple disabilities mentioned under clauses (a) to (d) of Section 34(1) of the RPwD Act, including deaf-blindness) for which two seats were reserved, as aforesaid.

7. The petitioner cleared the Preliminary Examination under the PwD category, as per the revised result dated 02.02.2019, wherein he scored 132.50 marks. Thereafter, he appeared for the Main Examinations held on 09.02.2019 and 10.02.2019. Vide Notice/Result dated 30.04.2019, the petitioner cleared the Main Examination with 420 marks out of 850 marks.

8. As per the Note appended to the Notice dated 30.04.2019, the candidates who qualified the Delhi Judicial Service Mains Examination were asked to submit certain documents. The said Note reads as under:

Divisional Officer, Additional District Magistrate, Revenue Assistant or any other officer, who has been designated by the State Government concerned as competent to issue such a certificate.

(6) In case of a candidate claiming reservation/relaxation on account of being Person with Disability (Blind/Low Vision)/ (Hearing Impaired)/ (Locomotor Disability)/ (Autism, Intellectual Disability, Specific Learning Disability and Mental Illness and Multiple Disabilities mentioned under Clauses (a) to (d)including deaf-blindness). Certificate, issued by a Government Hospital/Medical Board in support of his/her claim.

(7) In case of a candidate claiming relaxation in age on account of his/her being Ex-Serviceman, Emergency Commissioned Officer or Short Service Commissioned Officer, documentary evidence in this regard.

(8) A candidate, who claims to belong to Scheduled Castes/Scheduled Tribes or Person with Disabilities categories, if declared successful in the Main Examination (Written), must submit the original caste/ disability certificate to the Joint Registrar (Exams - DHJS and DJS), Delhi High Court." (emphasis supplied)

9. The petitioner duly submitted all the documents as well as the Original Disability Certificate dated 12.12.2018.

10. Vide letter dated 04.05.2019, the petitioner was called upon to appear for an Interview/Viva-Voce test to be held on 13.05.2019. The petitioner was interviewed by the Interview Board, comprising of Hon'ble Judges of this Court and other members.

11. The final results were published vide impugned notice dated 21.05.2019, whereby the candidature of the petitioner was rejected on the ground that his disability was not found to be permanent as per the Disability Certificate submitted by him. Accordingly, the petitioner has preferred the present petition challenging the said notice dated 21.05.2019.

12. The Disability Certificate issued by the Department of Psychiatry, AIIMS, certified the petitioner of having the disability i.e. Mental Illness - Bipolar Affective Disorder, i.e., BPAD, to the extent of 45%, and stated that his condition is "currently in remission". Further, the said certificate states that the condition of the petitioner is "likely to improve". The relevant extract of the said Disability Certificate reads as follows:

14. The issue that arises for our consideration is whether the petitioner - who is certified to have been suffering from the mental illness i.e. BPAD - which is in remission and is likely to improve, is entitled to the benefit of Reservation provided to PwD under the RPwD Act .

15. Mr. Arvind Nigam, learned senior counsel appearing on behalf of the petitioner submits that the stand of the respondent is based on a complete misreading of the petitioner's Disability Certificate and the provisions of the RPwD Act and the Rules framed thereunder. The gravamen of Mr. Nigam's W.P.(C.) No.5948/2019 Page 9 of 50 submission is that, while the Disability Certificate states that the petitioner's mental illness is currently in remission, and that the said condition of the petitioner is likely to improve, the same does not lead to the conclusion that the mental illness is a "temporary" one i.e. the illness will get permanently cured at some point of time in the future. He submits that the mental illness of the petitioner is permanent i.e. it is lifelong and with treatment and medication it can be kept under control. He submits that the fact that the petitioner is currently in remission, would not cause the petitioner to lose his status as a mentally disabled person as defined under the RPwD Act thereby disentitling him to his right to claim reservation under the RPwD Act .

16. Mr. Nigam has referred to the provisions of the RPwD Act . The definition of a "person with disability" is defined in section 2(s) of the RPwD Act, which reads as follows:

17. A "person with benchmark disability" is defined in section 2(r) of the RPwD Act, which reads as follows:

18. "Specified disabilities" is defined in section 2(zc) of the RPwD Act as follows:

19. Mr. Nigam draws our attention to the Schedule to the RPwD Act which covers mental illness as a specified disability. The relevant extract of the same is reproduced below:

(emphasis supplied)

20. Reservation is provided by Section 34 of the RPwD Act to persons with benchmark disabilities. The said section reads as follows:

21. Mr. Nigam submits that the petitioner is a person with benchmark disability, suffering from Bipolar Affective Disorder, which is a long term mental illness, and in terms of the RPwD Act , the petitioner was issued a certificate of disability. He refers to Rules 18 and 19 of The Rights of Persons with Disabilities Rules, 2017 (hereinafter referred to as the "RPwD Rules"), which deal with the procedure for issue of certificate of disability and reads as follows:

22. Rule 19 reads as follows:

23. Mr. Nigam submits that under Rule 18(3), 2 kinds of certificates are issued to PwD. Under Rule 18(3)(i), a permanent certificate is issued to persons where there are no chances of variation of disability over time, i.e. where there is no scope of improvement in the disability. Under Rule 18(3)(ii), the certificate is issued in cases where there is a chance of variation in the disability over time, i.e. the disability of the person may improve, or deteriorate, over time. The petitioner was issued a disability certificate under Rule 18(3)(ii), the validity of which is 5 years, and as per Rule 19, his Disability Certificate is actionable.

24. Mr. Nigam also places reliance on Rule 26 & 27 of the Delhi Rights of Persons with Disabilities Rules, 2018 (hereinafter referred to as the 'Delhi RPwD Rules'), which are extracted hereunder:

25. It is Mr. Nigam's submission that the petitioner's Disability Certificate is valid under Rule 18 and 19 of the RPwD Rules read with Rule 26 and 27 of the Delhi RPwD Rules and despite having a valid Disability Certificate issued as per the guidelines under the RPwD Act , he has been denied the benefit of reservation though he is rightfully entitled to it as a person with benchmark W.P.(C.) No.5948/2019 Page 15 of 50 disability (since the disability has been certified as not less than 40%, as it has been found to be 45%) provided under section 34 of the RPwD Act.

26. Mr. Nigam submits that there is no requirement under section 34 of the RPwD Act that the Disability Certificate must specify that the mental illness is permanent in nature, as envisaged under Rule 18(3)(i). The mental illness of the petitioner cannot be considered to be temporary, or not permanent, merely because the certificate does not, in terms, say that the mental illness is permanent. The certificate certifies the Mental Illness of the petitioner at 45% and is valid for 5 years. There is no reason to assume that the petitioner's disability will fall below 40% merely because he is in remission. If that were so, the certificate would not have been valid for 5 years from its issue. Disability Certificate issued under Rule 18(3)(ii) is also a valid Disability Certificate for the purpose of grant of reservation provided under section 34 of the RPwD Act. He submits that the Disability Certificate, which was issued to the petitioner by AIIMS under Rule 18(3)(ii) of the RPwD Rules, does not specifically mention that the petitioner's disability would completely disappear at any point in time, or that the mental illness of the patient is temporary in nature. It does not state that the mental illness will fall below 40% in future. Merely because the Disability Certificate states that the petitioner's disability is currently in remission and is likely to improve, is not a ground to deny reservation to the petitioner, since there is no such limitation prescribed in law.

27. Mr. Nigam submits that no objection was raised regarding the Disability Certificate when the petitioner submitted the documents with the respondent as per the notice dated 30.04.2019, and the same were duly W.P.(C.) No.5948/2019 Page 16 of 50 scrutinized by the respondent, on the basis of which the respondent issued him a letter dated 04.05.2019 inviting the petitioner for an interview on 13.05.2019. He submits that no objection was raised regarding the Disability Certificate prior to the issuance of the final notice dated 21.05.2019. The same was raised for the very first time only when the final notice was issued on 21.05.2019. Thus, the objection has been raised as an afterthought.

28. Mr. Nigam has placed reliance on Para 25 of the decision by the Division Bench of this Court in Ex. Gnr. Naresh Kumar v. Union of India, W.P.(C ) 3828/2010 dated 19.09.2011, wherein the Court observed:

29. Mr. Nigam lastly submits that the RPwD Act being a beneficial/welfare legislation enacted to benefit the PwD ought to be given a liberal, purposive and constructive interpretation in favour of the PwD.

30. When the writ petition was taken up for preliminary hearing on 29.05.2019, this Court passed the following order:

31. The respondent High Court of Delhi has, accordingly, filed its counter- affidavit.

32. Mr. Viraj Datar, learned counsel appearing on behalf of the respondent submits that the benefit of reservation under the RPwD Act cannot be extended to the petitioner, because his mental illness - as per the Disability Certificate, is not permanent or long-term in nature. The same has been assessed at 45%, but he is under remission and his condition is likely to improve. If it falls under 40%, the petitioner would not be entitled to the benefit of reservation under Section 34 of the RPwD Act.

33. Mr. Datar submits that the petitioner's mental disability is currently in remission and is likely to improve, which implies that his mental illness is not permanent or long-term in nature. In the meeting held on 13.05.2019, the petitioner's candidature was considered by the Selection Committee of DJS- 2018 which observed as follows:

34. Mr. Datar submits that the petitioner is not a "person with disability", as defined in Section 2(s) , since the mental impairment with which the petitioner suffers cannot be categorised as "long term". Since the petitioner cannot be categorised as "a person with disability", he is not "a person with benchmark disability", as defined in Section 2(r) , which is a sub-species of a person with disability.

35. Mr. Datar urges that in case the petitioner is allowed to avail of the reservation under Section 34 of the RPwD Act, sometime after his appointment, he would cease to be covered by the provisions of the RPwD Act since his mental disability/ impairment is only temporary in nature, or will fall below 40%. He also submits that in case the petitioner is allowed to avail of the reservation granted to candidates suffering from benchmark disability, it would deprive a deserving person, genuinely suffering with benchmark disability under the provisions of the RPwD Act , of getting appointed. Such appointment will defeat the purpose of the RPwD Act .

36. Mr. Datar vehemently argues that in case the benefits of relaxed standards and reservation under the RPwD Act are granted to persons with temporary disability, it is likely to lead to an anomalous situation, where persons who might have suffered locomotor injuries in accidents - resulting in temporary disability for a year or two, and whose condition improves subsequently, would also be entitled to the benefit of relaxation and reservation, thus depriving genuine candidates suffering from permanent/ long-term benchmark disabilities of the intended reservation. He also submits that such an interpretation would be in contradiction to the letter and spirit of the RPwD Act , and it is neither the intent, nor the purpose of the RPwD Act to grant benefits on the basis of a temporary disability, which is likely to improve.

37. Mr. Datar submits that the petitioner's documents were not scrutinized before he was called for an interview. The documents of all the candidates were checked, only to ensure that all the requisite documents as mentioned in the Advertisement Notice were submitted. The documents of all the W.P.(C.) No.5948/2019 Page 20 of 50 candidates were scrutinized and verified only on the day of the interview, when the petitioner's Disability Certificate was scrutinized and it was found by the Selection Committee that the petitioner's disability was not permanent in nature. Thus, there is no merit in his submission that the rejection of his candidature is an afterthought.

38. Mr. Datar places reliance on a Division Bench decision of Punjab & Haryana Court in Harneet Kaur v. Baba Farid University of Health Science, BFUHS, Faridkot, CWP No. 19074/2017 decided on 13.9.2018, wherein the Court held that the RPwD Act cannot be extended to persons afflicted with temporary disabilities and has to be restricted to persons with permanent disabilities only. In this case, the petitioner was suffering from 40% disability which was temporary in nature. The relevant extract of the judgment relied upon by Mr. Datar is as under:

This is the limited argument raised before us in this regard.

When we examine the provisions of the 2016 Act and Rule 18 of 2017 Rules rules defining a person with disability, it categorises persons afflicted with disability under three separate headings.

(1) Clause (i) talks of a person with benchmark disability to mean a person with not less than forty percent of a specified disability if the specified disability has not been defined in measurable terms and also includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority.

(2) Clause (ii) talks of persons with disability to mean a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.

(3) Lastly, Clause (iii) talks of a person with disability having high support needs means a person with benchmark disability certified under clause (a) of sub-section (2) of section 58 who needs high support.

Similarly, Section 58 of the 1995 Act talks of a specified disability. Evidently, the object of both the Acts is to enable effective participation of a person with disability in society equally with others not only by providing him a preference in matters of admission, employment, but also to enable him to more avenues in employment so that he can lead a dignified life independent of societal support driven by sympathy.

The classification as noticed above, clearly centers around a permanent disability, the weight of which an individual has to carry through his entire life. It does not talk of disability which is a temporary affliction and liable to dissipate or be reduced either with the passage of time or with appropriate treatment. The reason is too apparent as such a person with temporary disability carries neither weight, nor stigma which a person with permanent disability carries. When the provision of the Act is read with the afore-extracted Rule 18(3)(i) & (ii), it becomes abundantly clear that certificate of disability means a certificate of permanent disability. For the very same reason W.P.(C.) No.5948/2019 Page 22 of 50 1995 Act also has to be held to be referring to a permanent disability.

Learned counsel for the petitioner has made much about the aforeextracted Rule 18(3)(i), (ii) to contend that the word 'permanent disability' does not find mention therein.

We are of the opinion that in view of the categoric provision of the Act, three categories of persons with disability have been set out which suggest a long term disability. There is no escape from such a conclusion of the Act with the Rules too prescribing a preferential opening for those with permanent disability alone. The language of Rule 18(3)(i) is defective and we would read it to mean that the medical authority shall after due examination, issue a certificate of permanent disability. The word permanent disability occurring in clause (i) is to qualify the disability and not the certificate. It is for this reason that in continuation it notes that "where there are no chances of variation or disability over time in the degree of disability". Similarly, clause (ii) states issuance of a certificate of disability indicating the period of validity where there is any chance of variation over time in degree of the disability. Clause (ii), therefore, also talks of a permanent disability, but with chances of variation and reduction in degree.

The certificate issued by the PGIMER authorities indicates percentage of disability as forty percent of the body with nature of disability as temporary.

In this view of the matter, the respondent's stand cannot be faulted with. The petition in this regard has, therefore, to be rejected." (emphasis supplied)

39. Mr. Datar has also placed reliance on a Division Bench decision of this Court in 'Jadhav Vishwas Haridas v. Union Public Service Commission & Ors., LPA 222/2013 decided on 27.10.2016, relevant extract whereof is as follows:

(https://en.oxforddictionaries.com/definition/mental_illness accessed at 17:50 hrs, 14 October, 2016). The Mental Health Act defines a "mentally ill" person as one "who is in need of treatment by person of any mental disorder other than mental retardation". Now, there are two paradoxes at work here - the first is that those with mental illness are altogether excluded from consideration for any employment under the Section 33 reservation; two, and importantly, that mental disorders are of varied severity and extent. Even mental illness can differ significantly as to use of a person's skills acquired during one's life time. For instance, severe depression or disorders such as schizophrenia could seem as complete barriers to jobs. However, the severity of those conditions may vary, as well as their extent: they may be temporary and entirely brought under control. To club all these with the severest form of mental illness or disorder may be unjustified. The irony here is that someone with a fairly low degree of illness (say to the extent of 25% or 35%) would not fall within the definition of "person with disability" whereas one with a greater degree of disability (say 90% and total) may not be able to work at all, given the nature of illness. This is where the appellant's grievance has to be addressed. The "one size fits all" assumption that one with disability should have at least 40% of that condition may be justified and work well for person with vision or hearing impairment or locomotor disability. However, applying that matrix to person with mental disability could eliminate him or her altogether from consideration (whereas one who may technically be a person with disability, may be excluded altogether because of its very nature and its hindrance to normal discharge of public employment functions). Yet again, there is the legislative mandate of carrying post identification exercise W.P.(C.) No.5948/2019 Page 24 of 50 once in three years, having regard to advancement in technology. Now this mandate is useful not only in relation to availability of devices and tools such as hearing aids, etc (to enable hitherto unemployable persons with hearing disability for jobs which might now be conveniently performed by them) but also in relation to the kinds of medication and medical breakthrough resulting in ailments and conditions becoming amenable to treatment and control. If this mandate were to be given its logical effect, yet, the threshold of 40% disability might prove to be an additional barrier for those with mental illness or disorder.

x x x x x x x x

27. It is the opinion of this Court that a blanket 40% disability test to provide reservations in employment may be impracticable. A particular disability suffered by an individual might require specific aid and comes with specific restrictions. An individual suffering from a visual disability could avail specific benefits in terms of reservations in employment, as his mental condition is normal. Such an individual might be suffering from a disability of over 40% on the IDEA scale but his employability may not be affected. On the other hand, a different individual suffering from another disability of above 40% on the IDEA scale might not be employable for certain positions as his mental condition could be adversely affected. Hence it is the opinion of this Court that in a country where 26,810,557 individuals suffer from different disabilities, a one size fit all model might not be the most efficient. That 40% on the IDEA scale makes individuals more or less employable cannot be held ideal. The legislature may consider to create a model where individuals suffering from different disabilities may be recognized and given benefits in terms of education, employment, health etc. which are suitable to their individual condition. The benchmarking through the IDEA scale may have to vary depending on different disabilities. However, this remains within the legislative domain and since there is a move to amend the Act, the court - in accordance with well settled W.P.(C.) No.5948/2019 Page 25 of 50 principles on this subject cannot direct the enactment of legislation.

28. This court, therefore, concludes that there is some deficiency in the existing law, i.e the PWD Act , both with respect to providing reservations as well as the classification of all persons with disabilities as one having at least 40% of any specified or enumerated condition, which can well be the reason for ultimate discrimination. Whilst it is within executive domain to categorize which post can be suitable for what kind of person or persons with disability, the absolute minimum threshold of 40% in the case of certain kinds of disabilities could be the barrier - unwitting though the case may be, and eliminate from the post identification exercise persons with such disabilities altogether. This clearly has a discriminatory result, and an indirect discriminatory effect. Having arrived at this conclusion, the court is conscious that neither is this result capable of judicial redress (as that would involve the court judicially enacting law, by reading words into the statute an entirely unwarranted intrusion into Parliamentary power) nor can existing law be suitably read down or severed. Furthermore, and more fundamentally, this court does not have empirical data or scientific medical expertise in the matter and would have to hazard conclusions based on some materials which it might source, or intuitively guess. Whatever be the manner of exercise of power, such assumption of quasi-executive and legislative power can prove to be a remedy worse than the disease." (emphasis supplied)

40. We have considered the rival submissions of learned counsels in the light of the facts of the case. It is necessary for us to, firstly, examine the legal, as well as the medical literature on mental illness - Bipolar Affective Disorder, i.e., BPAD to understand the nature of this mental illness.

41. In Pankaj Mahajan v. Kajal , (2011) 12 SCC 1, the Supreme Court had occasion to consider the nature of the said illness, i.e. BPAD in the context of W.P.(C.) No.5948/2019 Page 26 of 50 a claim for divorce on the ground of the wife being incurably of unsound mind, and on the ground of cruelty. The Supreme Court observed:

42. Thus, the Court accepted the position that BPAD was a lifelong/ permanent and incurable mental illness, premised on statements and evidences led by medical doctors.

43. In an article titled Long-Term Treatment in Bipolar Disorder authored by Alan C. Swann, M.D. published in The Journal of Clinical Psychiatry, J Clin Psychiatry 2005; 66 (suppl 1), the learned Author observes:

Bipolar disorder is a lifelong illness with a heterogeneous course... ... ...Untreated patients are 2.5 times more likely to die in the next 12 months than the individuals of the same sex and age without bipolar disorder. This substantial mortality, from suicide and medical causes, is reduced by effective treatment... ... ...

... ... ... In nearly all published trials, most patients suffer relapse within 1 or 2 years even if given the active treatment in a positive trial, and a substantial minority of subjects who are randomly assigned to receive placebo do not suffer relapse... ... ..." (emphasis supplied)

44. In another article titled The Bipolar Spectrum by Jules Angst, published in British Journal of Psychiatry, (2007),190, 189-191. Doi:

(emphasis supplied) W.P.(C.) No.5948/2019 Page 29 of 50

45. An abstract from the article titled Bipolar Disorder: an update authored by Barkur S. Shastry published in Neurochemistry International Volume 46, Issue 4, March 2005, Pages 273-279,the learned author states:

46. In an article titled "Diagnosis and Treatment of Bipolar Disorders in Adults: A Review of the Evidence on Pharmacologic Treatments penned by W.P.(C.) No.5948/2019 Page 30 of 50 Michael W. Jann published in Am Health Drug Benefits. 2014 Dec; 7(9):

47. The National Institute of Mental Health, which comes under the United States Department of Health and Human Services, is the largest research organization in the world, specializing in mental illness and states in its Publication No. NIH Publication 19-MH-8088, that bipolar disorder is a lifelong illness, which has also been observed by the Division Bench of the Himachal Pradesh High Court in Jeevan Rana v. State of Himachal Pradesh , 2015 Cri LJ 4619. The relevant extract from the publication is reproduced below:

48. We may refer to the judgment of Himachal Pradesh High Court in Jeevan Rana (supra), wherein the Division Bench observed that Bipolar Disorder is a lifelong ailment. The relevant extract from this decision relied upon by the petitioner reads as follows:

49. The aforementioned medical literature and articles, as also the decision of the Supreme Court in Pankaj Mahajan (supra) and that of the Himachal Pradesh High Court in Jeevan Rana (supra) lead us to conclude that Bipolar Affective Disorder (BPAD) is a serious lifelong and permanent incurable mental illness that can, at best, be suppressed with medications and treatment, but cannot be cured. There is a high rate of recurrence. People who suffer from Bipolar Disorder can live a healthy life, albeit they will have to take treatment all their lives. The petitioner has been suffering from Bipolar Affective Disorder since 2010, and on a perusal of the petitioner's W.P.(C.) No.5948/2019 Page 37 of 50 prescriptions, we also observe that the petitioner has been under treatment since 2010. To say that the mental illness that afflicts the petitioner is not permanent in nature would be contrary to the medical literature above referred to. The respondent has not produced any authoritative medical view to the contrary on the nature of the mental illness of BPAD being "temporary", i.e. of it getting fully and permanently cured during the lifetime of the patient. Moreover, the certificate certifies the extent of mental illness/ disability at 45% and the certificate is valid for 5 years. Therefore, as per medical opinions, the extent of disability of the petitioner - who is under remission, is not likely to fall below 40% in the period of 5 years for which the certificate is valid. The respondents have no basis to assume that the disability would ever fall below 40% just because it is in remission and the petitioner's condition is likely to improve. The point is that while suffering from the benchmark disability of more than the specified limit, the petitioner has successfully competed with other PwD candidates. He is permanently disabled. He cannot be denied reservation on an assumed basis, as done by the respondent.

50. From the counter affidavit filed by the respondent, it appears that the true reason why the respondent has rejected the petitioner's candidature is not that his mental illness is not of permanent nature, or that it may fall below 40%, but because the respondent is of the opinion that the medical condition of BPAD renders the petitioner incapable of rendering service as a Judicial Officer. In paragraphs 7 and 8 of the counter-affidavit, the respondent states:

being of the Petitioner." (emphasis supplied)

51. On one hand, the respondent has trivialised the ailment of the petitioner by stating that it is not of permanent nature, and that he would cease to be a PwD with bench mark disability, at some point of time, with his disability falling below 40%. On the other hand, in the aforesaid paragraphs, the respondent states that the condition of the petitioner is so severe that he may not be able to handle the stressful job of a Judicial Officer.

52. Once the posts are advertised - and seats are reserved for, inter alia, persons with mental illness, it is not open to the respondent to deny the petitioner reservation under the RPwD Act , merely on the basis of an opinion or belief entertained by it - that the petitioner would not be able to discharge his duties as a Judicial Officer due to his mental illness. This is a call that the Parliament has taken. The Law provides reservation, inter alia, to person with the enlisted benchmark disabilities which includes "autism, intellectual disability, specific learning disability and mental illness". "Mental illness" is W.P.(C.) No.5948/2019 Page 39 of 50 explained in paragraph 3 of the Schedule to the RPwD Act and we have extracted hereinabove the relevant paragraph from the Schedule. There is no dispute that BPAD is a mental illness. This is clear from the medical certificate issued by the AIIMS to the petitioner and, even the respondent does not claim that BPAD - from which the petitioner suffers, is not a "mental illness".

53. Pertinently, "mental illness" does not include "retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by sub normality of intelligence". Thus, "mental illness" as defined in the Schedule relates to "Mental behaviour", and it does not relate to intellectual deficit of the person on account of incomplete development of the mind. From the Medical Certificate issued to the petitioner, and the medical literature referred to above , it appears that mental illness, which relates to mental behaviour - as defined in the Schedule, is a condition which can be treated and kept under check with lifelong medication and treatment. It also appears that a person suffering from such like mental illness can - while under treatment, lead a normal life, though he may face up's and down's from time to time. It appears that the Parliament granted reservation, inter alia, to PwD - who suffer from mental illness (which does not include retardation, as taken note of hereinabove), so that such persons get an opportunity to lead a normal life with encouragement and dignity. Merely because they may need medication and treatment throughout their lives, or may suffer setbacks from time to time, cannot be a reason to deny them equal opportunity to assimilate in the society, make their contribution and have a life of dignity. Such persons have a fully developed mind like any normal W.P.(C.) No.5948/2019 Page 40 of 50 human being. They may suffer from substantial disorder of thinking, mood, perception, orientation or memory that may grossly impair judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, but with medication and treatment such manifestations can be kept at bay. The mere apprehension that the respondent has - that the petitioner may not be able to handle the responsibility and stress which a Judicial Officer faces, cannot be a reason to declare him medically "unfit", or to say that he is not entitled to claim reservation. There is no medical opinion placed on record, or considered by the respondent, to come to the conclusion that a person - who is suffering from BPAD, and is under remission, would not be able to discharge his responsibilities as a Judicial Officer. Pertinently, there is no exemption granted by the appropriate Government referable to the proviso to Section 20(1) of the RPwD Act, which reads:

54. The respondent, firstly, cannot discriminate against any person with disability in any matter relating to employment. Secondly, it has no competence to take a decision on the issue whether the post of a Judicial Officer should be exempted from the rigor of Section 20(1) , having regard to the type of work carried out in the establishment of the judicial service. This decision rests with the appropriate Government. On the basis of a mere apprehension that there is a possibility that, in future, the petitioner's W.P.(C.) No.5948/2019 Page 41 of 50 disability may deteriorate - once he is appointed as a judicial officer and takes charge, and he may not be able to handle the responsibilities because of its stressful nature, cannot be a reason to deny him the benefit of reservation - to which he is statutorily entitled, and discriminate against him on the basis of his disability. Denial of reservation to the petitioner, which is his lawful right, is in clear breach of sections 20 and 34 of the RPwD Act.

55. In LIC of India v. Chief Commissioner for Disabilities & Anr. (2002) 101 DLT 434, the Court held that a possible future eventuality cannot be a ground to deny employment. The Court observed in paragraph 16 as follows:

56. Rule 3 of the RPwD Rules provides:

57. Section 3 of the RPwD Act reads as follows:

58. Section 2(h) and 2(y) of the RPwD Act read as follows:

59. By denying the petitioner reservation under the RPwD Act , the respondent has breached the abovementioned provisions. When a government establishment provides reservation for persons with benchmark disabilities i.e. with specified disabilities to the extent stipulated, for any post, any W.P.(C.) No.5948/2019 Page 43 of 50 candidate who fulfils the criteria must be assumed to be fit and proper for the post. The respondent could not have assumed that the petitioner would be unable to perform the duties of the post of a Judicial Officer.

60. In Union of India v. National Federation of the Blind , 156 (2009) DLT 446 (DB), the Supreme Court held as follows:

61. The respondent's reliance on Harneet Kaur (supra) is misplaced. In Harneet Kaur (supra), the petitioner was suffering from a temporary disability and, therefore, the Division Bench held that the benefit of the RPwD W.P.(C.) No.5948/2019 Page 44 of 50 Act cannot be extended to persons with temporary disabilities. That is not the case in hand.

62. Reliance placed by Mr. Datar on Jadhav Vishwas Haridas (supra) is misplaced. That was a case under the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 . The grievance of the petitioner/ appellant in that case was denial of reservation under Section 33 of that Act to persons with mental illness. In that context, the Court made the observations taken note of hereinabove. Those observations, in the context of the present case, have no bearing.

63. The intent and object of the RPwD Act is to protect and preserve the rights of disabled persons, and employment is an essential aspect of utmost importance and the RPwD Act has to be read liberally, keeping in mind that it is a beneficial and social welfare legislation which has to be given effect to in order to protect the rights of the PwD, and not to defeat their rights. In LIC of India (supra), the Learned Single Judge observed in the context of Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 as follows:

23. It is for this reason that one of the great world leaders, Nelson Mandela said (as quoted in Disability: Challenges v. Responses) -

64. In Babita Pathak & Ors. V. High Court of Delhi & Ors., 2013 (135) DRJ 382, this Court emphasized the fact that the Persons with Disabilities (Equal Opportunities, Protection of Rights And Full Participation) Act, 1995 is a piece of beneficial legislation. This Court held:

13. Similarly, in S.M. Nilajkar v. Telecom District Manager, Karnataka ,(2003) 4 SCC 27, another decision referred to in Bata India Limited (supra), the Supreme Court observed as under:--

14. A word of caution, however, was sounded in Usha Breco Mazdoor Sangh v. Management of Usha Breco Limited ,(2008) 5 SCC 554, which has also been noted in Bata India Limited (supra). In Usha Breco (supra), the Supreme Court observed as under:--

15. In similar vein is the decision of the Supreme Court in Edukanti Kistamma (Dead) Through LRs v. S. Venkatareddy (Dead) Through LRs ,(2010) 1 SCC 756

16. In National Federation of Blind (supra), a Division Bench of this court held as under:--

17. In Kunal Singh(supra), the Supreme Court held as under:--

18. In GNCTD v. All India Confederation of the Blind (supra), a Division Bench of this court observed, with reference to the W.P.(C.) No.5948/2019 Page 48 of 50 said Act, that it was a welfare legislation and, therefore, if two views were possible, the interpretation which was in favour of the handicapped persons, ought to be adopted. From the above decisions, which have been relied upon by Mr Datar, it becomes clear that social welfare legislations ought to be given a beneficial and purposive construction which advances the object of the legislation. Of course, such an interpretation would only be possible where the provision is open to more than one meaning and is in keeping with the legislative intent.

19. It was also contended by Mr Datar that the said Act, which includes the said Section 36 , is a piece of legislation which, is aimed at the amelioration of persons with disabilities. The said Act does not contemplate or intend to create or grant any rights in favour of persons, other than those with disabilities......

x x x x x x x x x

34. .........The intent and purport behind the said provision is to bring the persons with disabilities into mainstream activities and to enable them to contribute to society in general. The persons with disabilities are not to be discarded from the society at large. They are useful and productive members of society despite their disabilities and the purpose behind the Act is to give them an equal opportunity to contribute to society so that they are fully able to participate in national life. It is clear that the Act is meant for the benefit of the disabled." (emphasis supplied)

65. The aforesaid observations apply with equal force in respect of the RPwD Act , which is the improved and later version of the earlier Act taken note of hereinabove.

66. In the light of the aforesaid discussion, we allow this writ petition and set aside the notice dated 21.5.2019 insofar as it declares the petitioner's W.P.(C.) No.5948/2019 Page 49 of 50 disability to be not permanent. We accordingly direct the respondent to declare the petitioner as selected to the Delhi Judicial Service without any further delay, since, undisputedly, he is the only qualified candidate in the 'mental illness' category. Upon his appointment, the petitioner would retain his notional seniority along with his other batchmates and he would be deemed to have joined his post along with his other batchmates, though he would not be entitled to any back wages. It goes without saying that the respondent shall issue necessary orders regarding the petitioner's Induction training for Judicial Officers.

67. The petition stands disposed of in the aforesaid terms. There shall be no order as to costs.

(VIPIN SANGHI) JUDGE (SANJEEV NARULA) JUDGE MAY 08, 2020 W.P.(C.) No.5948/2019 Page 50 of 50