The Calcutta Supreme Court overturned a resolution in which a college denied tenure of a teacher with an 80 percent disability, and citing a UN treaty ordered the governing body to come up with a new decision. Arun Sarkar, who has been promoted, lost both hands in a train accident in 1997.
Sarkar challenged the Supreme Court to challenge the decision of the governing body of Acharya Girish Chandra Bose College and ask the West Bengal College Service Commission to reconsider the petitioner’s recommendation citing his 80 percent disability. Judge Moushumi Bhattacharya ordered the annulment of the resolution of the college governing body and instructed it to issue a new decision within eight weeks of the date of notification of the order.
In Monday’s ruling, she said the court cannot usurp the power to recommend the applicant for an appointment. After the train accident in 1997, Sarkar worked as an assistant teacher in the Physically Handicapped (PH) category at Garifa High School from 1999. He joined Kandi Raj College in Murshidabad district in April 2010 as an assistant professor of Bangladeshi in the same category.
The court said there is no evidence that Sarkar is unable to fulfill his duties as a teacher or assistant professor due to the disability imposed on him and that he performed his work using artificial limbs. Sarkar, a resident of Naihati in North 24’s Parganas district, found it difficult to get to Kandi Raj College, which was a distance of 300 miles (480 km) back and forth.
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In his application, the College Service Commission recommended him as an assistant professor in the PH category for Acharya Girish Chandra Bose College (the former Bangabasi College of Commerce) in Kolkata. The college’s governing body then decided to request the commission to reconsider its recommendation because Sarkar is 80 percent disabled and “unable to fulfill the duties related to teaching, evaluation, etc. of the college and for university assignments”.
“Since the department is young, the appointment of such a candidate could be seriously damaging to the development of the department and the reputation of the college,” the governing body concluded in a meeting on June 10, 2017. The decision was previously challenged. the Supreme Court and the college had given Sarkar a provisional appointment in August 2017, which will be subject to the outcome of the teacher’s request, his defense counsel Subir Sanyal said.
In issuing the verdict, the court noted that it should be noted that the Rights of Persons with Disabilities Act, 2016, was enacted to implement the United Nations Convention on the Rights of Persons with Disabilities. Justice Bhattacharya said the United Nations General Assembly adopted the treaty on December 13, 2006 and established certain principles for the empowerment of persons with disabilities, including respect for inherent dignity, individual autonomy and the freedom to make their own choices. She said the Convention also emphasizes non-discrimination and full and effective participation of such individuals.
The court said the issue at stake in this case is whether the college’s decision represents a step backwards on the path the law sought to pave for persons with disabilities. The court said that that of the governing body reflects the mindset and attitude that the law sought to liberalize and correct.
The 2016 law provides for the right to equal treatment of persons with disabilities at the same level as others in the relevant group, the judge said. “In the view of this Court, ‘reasonable accommodation’ (stated in the Act) is that extra effort that is part of the duty of government agencies and private entities to create an environment conducive to mitigating the effect of disabilities in the general mainstreaming of community members,” Judge Bhattacharya noted.
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