The Delhi High Court has issued notice to the Delhi government on a petition challenging a Directorate of Education circular dated October 15, 2021 not allowing teachers and school staff who have not been vaccinated against Covid-19 from attending school and their absence to be treated as leave.
Justice Rekha Palli has tagged the matter with other petitions on the same issue and directed respondents to file their counter-affidavit in the matter within 4 weeks. The High Court has listed the matter for February 3, 2022 for further hearing.
In the petition, the petitioner said she is employed as a Lecturer, History in a Government Girls Senior Secondary School (GGSSS). She was appointed by the Directorate of Education on August 29, 2019. The petitioner was given an order on October 4, 2021 issued by the Directorate of Education which stated that “all such teachers and school staff who have not got themselves vaccinated by 15.10.2021 should not be allowed to attend the school and their absence would be treated as on leave.” This was later reiterated by similar Orders dated 08.10.2021 passed by Delhi Disaster Management Authority (DDMA) and dated 29.10.2021 passed by Directorate of Education. On 16.10.2021, the petitioner went to school and was not allowed to mark her attendance. She has been marked “on leave” since then as she has not been vaccinated.
Petitioner is aggrieved of the aforesaid Orders primarily on the grounds that:
a) The petitioner teaches students of Classes XII and XI who are going to appear for their Board and Mid-Term examinations respectively in December 2021. The petitioner will not be able to facilitate her students before their Board examinations.
b) The impugned Orders wrongly claim that the directions for mandatory vaccination are “as per the prevailing guidelines/protocols prescribed for vaccination by the Ministry of Health & Family Welfare, Government of India.” The MInistry of Health and Family Welfare guidelines categorically state that Covid-19 vaccination is voluntary.
c) The impugned Orders are contrary to the protocols/guidelines for administration of vaccines which have only been authorized for emergency use. All three vaccines Covishield, Covaxin and Sputnik V have only been granted Emergency Use Authorization (EUA) in India as per the MoHFW website. They are yet to be granted a license. Informed consent is an essential prerequisite before EUA vaccines can be administered.
d) The impugned Orders fail to justify how mandatory vaccination can prevent transmission of the virus. The WHO admits that “there is not currently sufficient evidence to evaluate the impact of the vaccine on transmission”. Thus, the impugned Orders are violative of Article 14 of the Constitution as the Orders discriminate between vaccinated and unvaccinated citizens based on an incomplete appreciation of existing medical evidence.
e) The impugned Orders reflect complete non-application of mind and arbitrariness. In accordance with the Circular dated 09.08.2021 issued by the Directorate of Education, the Petitioner started giving academic counselling/guidance to students physically in school. In accordance with Circular dated 31.08.2021 which directed physical resumption of classes, the Petitioner started physically teaching her students at school. Preventing the Petitioner from teaching her students weeks before their Board exams reflects total arbitrariness especially when it is noted that the positivity rate (0.09% to 0.04%) and active cases (538 to 317 cases) in Delhi have been on the decline between August 1 and October 31, 2021.
f) The impugned Orders are arbitrary as on the one hand the DDMA has allowed reopening of schools, markets, public transport, cinema/theatres, public parks, marriage halls etc. without the dictum of mandatory vaccination for the general public. On the other hand, it is forcing only government employees to get the first dose of vaccination failing which their right to carry out their profession and their right to livelihood guaranteed under Article 19 and 21 of the Constitution has been severely impacted. It will be pertinent to note that Orders similar to those impugned in the present petition were struck down recently by the High Courts of Meghalaya, Guwahati, and Manipur and it was held that it will be unjustified and grossly unreasonable to debar unvaccinated people from earning their livelihood.
g) If existing precautions such as masking, physical distancing, sanitizing, testing, voluntary vaccination and improving natural immunity have already brought us to the present phase, then continuing such measures, rather than a coercive mandate, would constitute the least restrictive means of accomplishing public health goals. Viewed in this light, the impugned Orders passed under Section 22 of the Disaster Management Act, 2005 are violative of Article 19 of the Constitution as they fail to pass the test of reasonable restrictions.
h) The impugned Orders are arbitrary as they fail to consider scientific studies and authoritative public health sources which show that the immunity that results from natural infection is strong and enduring. i) The Petitioner emphasized that there are serious questions raised about the adequate testing and transparency of data pertaining to clinical trials which are mandatory prior to grant of EUA as well as license. The Subject Expert Committee meeting minutes indicate that EUA to both Covishield and Covaxin have been granted in an opaque and rushed manner. The impugned Orders therefore, violate the principle of informed consent and the Petitioner¶s right to bodily autonomy and her right to choose a medical treatment for herself.
j) In the absence of any legal framework, the impugned Orders or the issuing authorities have not clarified who will be accountable for any adverse impact after immunization, if any, on the Petitioner. This concern is corroborated as between March and October 2021, 363 AEFIs were admitted by the Government of India, of which 93 were deaths. Of these, 3 were admitted to be vaccine product related and remaining coincidental/indeterminate/ unclassified.
k) The impugned Orders are also violative of Central Civil Services Leave Rules, 1972 applicable to the Petitioner . There is no provision for forced leave in the said rules. The Orders also do not clarify the nature of leave which is being thrust on the petitioner. The representation sent by the petitioner in this regard to the Head of the School on 30.10.2021 has not been responded to by the concerned authorities. The petitioner is being treated “on leave” due to her vaccination status and may eventually be forced to face disciplinary action for no fault of hers.